[Title 30 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2011 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          Title 30

Mineral Resources


________________________

Parts 700 to End

                         Revised as of July 1, 2011

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2011
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 30:
          Chapter VII--Office of Surface Mining Reclamation 
          and Enforcement, Department of the Interior                3
          Chapter XII--Office of Natural Resources Revenue, 
          Department of the Interior                               715
  Finding Aids:
      Table of CFR Titles and Chapters........................     943
      Alphabetical List of Agencies Appearing in the CFR......     963
      List of CFR Sections Affected...........................     973

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus,  30 CFR 700.1 refers 
                       to title 30, part 700, 
                       section 1.

                     ----------------------------

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
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name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
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LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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[[Page vii]]

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    Director,
    Office of the Federal Register.
    July 1, 2011.







[[Page ix]]



                               THIS TITLE

    Title 30--Mineral Resources is composed of three volumes. The parts 
in these volumes are arranged in the following order: parts 1--199, 
parts 200--699, and part 700 to end. The contents of these volumes 
represent all current regulations codified under this title of the CFR 
as of July 1, 2011.

    For this volume, Jonn V. Lilyea was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


[[Page 1]]



                       TITLE 30--MINERAL RESOURCES




                  (This book contains part 700 to End)

  --------------------------------------------------------------------
                                                                    Part

chapter vii--Office of Surface Mining Reclamation and 
  Enforcement, Department of the Interior...................         700

[[Page 3]]



   CHAPTER VII--OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT, 

                       DEPARTMENT OF THE INTERIOR




  --------------------------------------------------------------------


  Editorial Note: Nomenclature changes to chapter VII appear at 69 FR 
18803, Apr. 9, 2004.

                          SUBCHAPTER A--GENERAL
Part                                                                Page
700             General.....................................           9
701             Permanent regulatory program................          17
702             Exemption for coal extraction incidental to 
                    the extraction of other minerals........          32
705             Restriction on financial interests of State 
                    employees...............................          38
706             Restriction on financial interests of 
                    Federal employees.......................          45
707             Exemption for coal extraction incident to 
                    government-financed highway or other 
                    construction............................          51
                SUBCHAPTER B--INITIAL PROGRAM REGULATIONS
710             Initial regulatory program..................          53
715             General performance standards...............          59
716             Special performance standards...............          89
717             Underground mining general performance 
                    standards...............................          97
721             Federal inspections.........................         108
722             Enforcement procedures......................         110
723             Civil penalties.............................         115
724             Individual civil penalties..................         120
725             Reimbursements to States....................         122
  SUBCHAPTER C--PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-
                              INDIAN LANDS
730             General requirements........................         129
731             Submission of State programs................         130
732             Procedures and criteria for approval or 
                    disapproval of State program submissions         132

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733             Maintenance of State programs and procedures 
                    for substituting Federal enforcement of 
                    State programs and withdrawing approval 
                    of State programs.......................         138
735             Grants for program development and 
                    administration and enforcement..........         140
736             Federal program for a State.................         148
                   SUBCHAPTER D--FEDERAL LANDS PROGRAM
740             General requirements for surface coal mining 
                    and reclamation operations on Federal 
                    lands...................................         153
745             State-Federal cooperative agreements........         161
746             Review and approval of mining plans.........         164
                   SUBCHAPTER E--INDIAN LANDS PROGRAM
750             Requirements for surface coal mining and 
                    reclamation operations on Indian lands..         166
755             Tribal-Federal intergovernmental agreements.         171
756             Indian tribe abandoned mine land reclamation 
                    programs................................         171
                SUBCHAPTER F--AREAS UNSUITABLE FOR MINING
761             Areas designated by Act of Congress.........         176
762             Criteria for designating areas as unsuitable 
                    for surface coal mining operations......         186
764             State processes for designating areas 
                    unsuitable for surface coal mining 
                    operations..............................         188
769             Petition process for designation of Federal 
                    lands as unsuitable for all or certain 
                    types of surface coal mining operations 
                    and for termination of previous 
                    designations............................         193
SUBCHAPTER G--SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND 
           COAL EXPLORATION SYSTEMS UNDER REGULATORY PROGRAMS
772             Requirements for coal exploration...........         197
773             Requirements for permits and permit 
                    processing..............................         201
774             Revision; renewal; transfer, assignment, or 
                    sale of permit rights; post-permit 
                    issuance requirements; and other actions 
                    based on ownership, control, and 
                    violation information...................         214
775             Administrative and judicial review of 
                    decisions...............................         218
777             General content requirements for permit 
                    applications............................         220
778             Permit applications--minimum requirements 
                    for legal, financial, compliance, and 
                    related information.....................         221

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779             Surface mining permit applications--minimum 
                    requirements for information on 
                    environmental resources.................         225
780             Surface mining permit applications--minimum 
                    requirements for reclamation and 
                    operation plan..........................         228
783             Underground mining permit applications--
                    minimum requirements for information on 
                    environmental resources.................         244
784             Underground mining permit applications--
                    minimum requirements for reclamation and 
                    operation plan..........................         247
785             Requirements for permits for special 
                    categories of mining....................         265
                 SUBCHAPTER H--SMALL OPERATOR ASSISTANCE
795             Permanent regulatory program--small operator 
                    assistance program......................         279
                         SUBCHAPTER I [RESERVED]
SUBCHAPTER J--BONDING AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING 
                       AND RECLAMATION OPERATIONS
800             Bond and insurance requirements for surface 
                    coal mining and reclamation operations 
                    under regulatory programs...............         283
          SUBCHAPTER K--PERMANENT PROGRAM PERFORMANCE STANDARDS
810             Permanent program performance standards--
                    general provisions......................         295
815             Permanent program performance standards--
                    coal exploration........................         296
816             Permanent program performance standards--
                    surface mining activities...............         297
817             Permanent program performance standards--
                    underground mining activities...........         333
819             Special permanent program performance 
                    standards--auger mining.................         371
820             Special permanent program performance 
                    standards--anthracite mines in 
                    Pennsylvania............................         373
822             Special permanent program performance 
                    standards--operations in alluvial valley 
                    floors..................................         373
823             Special permanent program performance 
                    standards--operations on prime farmland.         375
824             Special permanent program performance 
                    standards--mountaintop removal..........         377
825             Special permanent program performance 
                    standards--special bituminous coal mines 
                    in Wyoming..............................         378

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827             Permanent program performance standards--
                    coal preparation plants not located 
                    within the permit area of a mine........         378
828             Special permanent program performance 
                    standards--in situ processing...........         379
  SUBCHAPTER L--PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES
840             State regulatory authority: Inspection and 
                    enforcement.............................         381
842             Federal inspections and monitoring..........         385
843             Federal enforcement.........................         390
845             Civil penalties.............................         398
846             Individual civil penalties..................         403
847             Alternative enforcement.....................         405
   SUBCHAPTER M--TRAINING, EXAMINATION, AND CERTIFICATION OF BLASTERS
850             Permanent regulatory program requirements--
                    standards for certification of blasters.         407
                       SUBCHAPTERS N-O [RESERVED]
                  SUBCHAPTER P--PROTECTION OF EMPLOYEES
865             Protection of employees.....................         410
              SUBCHAPTER R--ABANDONED MINE LAND RECLAMATION
870             Abandoned mine reclamation fund--fee 
                    collection and coal production reporting         413
872             Moneys available to eligible States and 
                    Indian tribes...........................         424
873             Future reclamation set-aside program........         431
874             General reclamation requirements............         431
875             Certification and noncoal reclamation.......         436
876             Acid mine drainage treatment and abatement 
                    program.................................         440
877             Rights of entry.............................         440
879             Acquisition, management, and disposition of 
                    lands and water.........................         442
880             Mine fire control...........................         444
881             Subsidence and strip mine rehabilitation, 
                    Appalachia..............................         447
882             Reclamation on private land.................         452
884             State reclamation plans.....................         454
885             Grants for certified States and Indian 
                    tribes..................................         456
886             Reclamation grants for uncertified States 
                    and Indian tribes.......................         459

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887             Subsidence insurance program grants.........         464
                         SUBCHAPTER S [RESERVED]
  SUBCHAPTER T--PROGRAMS FOR THE CONDUCT OF SURFACE MINING OPERATIONS 
                            WITHIN EACH STATE
900             Introduction................................         467
901             Alabama.....................................         468
902             Alaska......................................         475
903             Arizona.....................................         478
904             Arkansas....................................         485
905             California..................................         488
906             Colorado....................................         496
910             Georgia.....................................         505
912             Idaho.......................................         511
913             Illinois....................................         516
914             Indiana.....................................         525
915             Iowa........................................         536
916             Kansas......................................         538
917             Kentucky....................................         540
918             Louisiana...................................         551
920             Maryland....................................         553
921             Massachusetts...............................         555
922             Michigan....................................         560
924             Mississippi.................................         566
925             Missouri....................................         567
926             Montana.....................................         571
931             New Mexico..................................         581
933             North Carolina..............................         592
934             North Dakota................................         599
935             Ohio........................................         608
936             Oklahoma....................................         615
937             Oregon......................................         624
938             Pennsylvania................................         630
939             Rhode Island................................         638
941             South Dakota................................         644
942             Tennessee...................................         649
943             Texas.......................................         660
944             Utah........................................         663
946             Virginia....................................         673
947             Washington..................................         680
948             West Virginia...............................         688
950             Wyoming.....................................         697
955             Certification of blasters in Federal program 
                    States and on Indian lands..............         709

[[Page 9]]



                          SUBCHAPTER A_GENERAL



PART 700_GENERAL--Table of Contents



Sec.
700.1 Scope.
700.2 Objective.
700.3 Authority.
700.4 Responsibility.
700.5 Definitions.
700.10 Information collection.
700.11 Applicability.
700.12 Petitions to initiate rulemaking.
700.13 Notice of citizen suits.
700.14 Availability of records.
700.15 Computation of time.

    Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-34.

    Source: 44 FR 15313, Mar. 13, 1979, unless otherwise noted.



Sec. 700.1  Scope.

    The regulations in chapter VII of 30 CFR, consisting of parts 700 
through 899, establish the procedures through which the Secretary of the 
Interior will implement the Surface Mining Control and Reclamation Act 
of 1977 (Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 1201 et. seq.)). Chapter 
VII is divided into 13 subchapters.
    (a) Subchapter A contains introductory information intended to serve 
as a guide to the rest of the chapter and to the regulatory requirements 
and definitions generally applicable to the programs and persons covered 
by the Act.
    (b) Subchapter B contains regulations covering the initial 
regulatory program which apply before the applicability of permanent 
program regulations to persons conducting surface coal mining and 
reclamation operations and other persons covered by the Act.
    (c) Subchapter C sets forth regulations covering applications for 
and decisions on permanent State programs; the process to be followed 
for substituting a Federal program for an approved State program, if 
necessary; the process for assuming temporary Federal enforcement of an 
approved State program; and the process for implementing a Federal 
program in a State when required by the Act.
    (d) Subchapter D of this chapter identifies the procedures that 
apply to surface coal mining and reclamation operations conducted on 
Federal lands rather than State or private lands and incorporates by 
reference the requirements of the applicable regulatory program and the 
inspection and enforcement requirements of subchapter L of this chapter.
    (e) Subchapter E of this chapter contains regulations that apply to 
surface coal mining and reclamation operations conducted on Indian 
lands.
    (f)(1) Subchapter F implements the requirements of the Act for--
    (i) Designating lands which are unsuitable for all or certain types 
of surface coal mining operations;
    (ii) Terminating designations no longer found to be appropriate; and
    (iii) Prohibiting surface coal mining and reclamation operations on 
those lands or areas where the Act states that surface coal mining 
operations should not be permitted or should be permitted only after 
specified determinations are made.
    (2) Subchapter F does not include regulations governing designation 
of areas unsuitable for noncoal mining under the terms of section 601 of 
the Act or the designation of Federal lands under the Federal lands 
review provisions of section 522(b) of the Act. The Bureau of Land 
Management of the Department of the Interior is responsible for these 
provisions which will be implemented when promulgated by regulations in 
title 43 of the Code of Federal Regulations.
    (g) Subchapter G governs applications for and decisions on permits 
for surface coal mining and reclamation operations on non-Indian and 
non-Federal lands under a State or Federal program. It also governs coal 
exploration and permit application and decisions on permits for special 
categories of coal mining on non-Indian and non-Federal lands under a 
State or Federal program. Regulations implementing the experimental 
practices provision of the Act are also included in subchapter G.
    (h) Subchapter J sets forth requirements for performance bonds and 
public liability insurance for both surface

[[Page 10]]

mining and underground mining activities.
    (i) Subchapter K sets forth the environmental and other performance 
standards which apply to coal exploration and to surface coal mining and 
reclamation operations during the permanent regulatory program. The 
regulations establish the minimum requirements for operations under 
State and Federal programs. Performance standards applicable to special 
mining situations such as anthracite mines, steep slope mining, alluvial 
valley floors, and prime farmlands are included.
    (j) Subchapter L sets forth the inspection, enforcement, and civil 
penalty provisions that apply to a State, Federal, or Federal lands 
program.
    (k) Subchapter M sets forth the requirements for the training, 
examination, and certification of blasters.
    (l) Subchapter P sets forth the provisions for protection of 
employees who initiate proceedings under the Act or testify in any 
proceedings resulting from the administration or enforcement of the Act.
    (m) Subchapter R sets forth the regulations for the abandoned mine 
land reclamation program. These regulations include the fee collection 
requirements and the mechanisms for implementing the State and Federal 
portions of the abandoned mine land reclamation program.
    (n) Subchapter S sets forth the regulations that apply to grants for 
mining and mineral research institutes and grants for mineral research 
projects.

[44 FR 15313, Mar. 13, 1979, as amended at 48 FR 6934, Feb. 16, 1983; 49 
FR 38477, Sept. 28, 1984]



Sec. 700.2  Objective.

    The objective of chapter VII is to fulfill the purposes of the Act 
found in section 102 in a manner which is consistent with the language 
of the Act, its legislative history, other applicable laws, and judicial 
interpretations.



Sec. 700.3  Authority.

    The Secretary is authorized to administer the requirements of the 
Act, except the following:
    (a) Provisions of the Act that authorize the Secretary of 
Agriculture to establish programs for the reclamation of rural lands, 
identification of prime agricultural lands, and other responsibilities 
described in the Act. Regulations promulgated by the Secretary of 
Agriculture are in 7 CFR;
    (b) Provisions of the Act for which responsibility is specifically 
assigned to other Federal agencies, including the Department of Labor, 
the Environmental Protection Agency, the Corps of Engineers, the Council 
on Environmental Quality, and the Department of Energy; and
    (c) Authority retained by the States to enforce State laws or 
regulations which are not inconsistent with the Act and this chapter, 
including the authority to enforce more stringent land use and 
environmental controls and regulations.



Sec. 700.4  Responsibility.

    (a) The Director of the Office of Surface Mining Reclamation and 
Enforcement, under the general direction of the Assistant Secretary, 
Energy and Minerals, is responsible for exercising the authority of the 
Secretary, except for the following:
    (1) Approval, disapproval or withdrawal of approval of a State 
program and implementation of a Federal program. The Director is 
responsible for exercising the authority of the Secretary to substitute 
Federal enforcement of a State program under section 521(b) of the Act.
    (2) Designation of non-Federal lands or Federal lands without the 
concurrence of the Federal surface managing agency as unsuitable for all 
or certain types of surface coal mining operations under section 522 of 
the Act and as unsuitable for non-coal mining under section 601 of the 
Act; and
    (3) Authority to approve or disapprove mining plans to conduct 
surface coal mining and reclamation operations on Federal lands.
    (b) The Director is responsible for consulting with Federal land-
managing agencies and Federal agencies with responsibility for natural 
and historic resources on Federal lands on actions which may have an 
effect on their responsibilities.
    (c) The States are responsible for the regulation of surface coal 
mining and

[[Page 11]]

reclamation operations under the initial regulatory program and surface 
coal mining and reclamation operations and coal exploration under an 
approved State program and the reclamation of abandoned mine lands under 
an approved State Reclamation Plan on non-Federal and non-Indian lands 
in accordance with procedures in this chapter.
    (d) The Secretary may delegate to a State through a cooperative 
agreement certain authority relating to the regulation of surface coal 
mining and reclamation operations on Federal lands in accordance with 30 
CFR part 745.
    (e) The Director, Office of Hearings and Appeals, U.S. Department of 
the Interior, is responsible for the administration of administrative 
hearings and appeals required or authorized by the Act pursuant to the 
regulations in 43 CFR part 4.

[44 FR 15313, Mar. 13, 1979; 44 FR 49684, Aug. 24, 1979]



Sec. 700.5  Definitions.

    As used throughout this chapter, the following terms have the 
specified meaning except where otherwise indicated--
    Act means the Surface Mining Control and Reclamation Act of 1977 
(Pub. L. 95-87).
    AML means abandoned mine land(s).
    AML inventory means OSM's listing of abandoned mine land problems 
eligible to be reclaimed using moneys from the Abandoned Mine 
Reclamation Fund or the Treasury as appropriate.
    Anthracite means coal classified as anthracite in ASTM Standard D 
388-77. Coal classifications are published by the American Society of 
Testing and Materials under the title, Standard Specification for 
Classification of Coals by Rank, ASTM D 388-77, on pages 220 through 
224. Table 1 which classifies the coals by rank is presented on page 
223. This publication is hereby incorporated by reference as it exists 
on the date of adoption of these regulations. Notices of changes made to 
this publication will be periodically published by the Office of Surface 
Mining in the Federal Register. This ASTM Standard is on file and 
available for inspection at the OSM Office, U.S. Department of the 
Interior, South Interior Building, Washington, DC 20240, at each OSM 
Regional Office, District Office and Field Office, and at the central 
office of the applicable State Regulatory Authority, if any. Copies of 
this publication may also be obtained by writing to the above locations. 
A copy of this publication will also be on file for public inspection at 
the National Archives and Records Administration (NARA). For information 
on the availability of this material at NARA, call 202-741-6030, or go 
to: http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. Incorporation by reference provisions 
approved by the Director of the Federal Register February 7, 1979. The 
Director's approval of this incorporation by reference expires on July 
1, 1981.
    Coal means combustible carbonaceous rock, classified as anthracite, 
bituminous, subbituminous, or lignite by ASTM Standard D 388-77, 
referred to and incorporated by reference in the definition of 
Anthracite immediately above.
    Department means the Department of the Interior.
    Director means the Director, Office of Surface Mining Reclamation 
and Enforcement, or the Director's representative.
    Eligible lands and water means lands and water eligible for 
expenditures under title IV of SMCRA and this chapter. Eligible lands 
and water for reclamation or drainage abatement expenditures under the 
Abandoned Mine Land program contained in this chapter are those which 
were mined for coal or which were affected by such mining, wastebanks, 
coal processing, or other coal mining processes and left or abandoned in 
either an unreclaimed or inadequately reclaimed condition prior to 
August 3, 1977, and for which there is no continuing reclamation 
responsibility. However, lands and water damaged by coal mining 
operations after that date and on or before November 5, 1990, may also 
be eligible for reclamation if they meet the requirements specified in 
Sec. 874.12(d) and (e) of this chapter. Following certification of the 
completion of all known coal problems, eligible lands and water for 
noncoal reclamation purposes are those sites

[[Page 12]]

that meet the eligibility requirements specified in Sec. 875.14 of this 
chapter. For additional eligibility requirements for water projects, see 
Sec. 874.14 of this chapter, and for lands affected by remining 
operations, see section 404 of SMCRA.
    Emergency means a sudden danger or impairment that presents a high 
probability of substantial physical harm to the health, safety, or 
general welfare of people before the danger can be abated under normal 
program operation procedures.
    Expended means that moneys have been obligated, encumbered, or 
committed by contract by the State, Tribe, or us for work to be 
accomplished or services to be rendered.
    Extreme danger means a condition that could reasonably be expected 
to cause substantial physical harm to persons, property, or the 
environment and to which persons or improvements on real property are 
currently exposed.
    Federal lands means 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. However, lands or mineral interests east of the 
100th meridian west longitude owned by the United States and entrusted 
to or managed by the Tennessee Valley Authority are not subject to 
sections 714 (surface owner protection) and 715 (Federal lessee 
protection) of the Act.
    Federal lands program means a program established by the Secretary 
pursuant to section 523 of the Act to regulate surface coal mining and 
reclamation operations on Federal lands.
    Fund means the Abandoned Mine Reclamation Fund established on the 
books of the U.S. Treasury for the purpose of accumulating revenues 
designated for reclamation of abandoned mine lands and other activities 
authorized by section 401 of SMCRA.
    Indian lands means all lands, including mineral interests, within 
the exterior boundaries of any Federal Indian reservation, 
notwithstanding the issuance of any patent, and including rights-of-way, 
and all lands including mineral interests held in trust for or 
supervised by an Indian tribe.
    Indian tribe means any Indian tribe, band, group, or community 
having a governing body recognized by the Secretary.
    Office means the Office of Surface Mining Reclamation and 
Enforcement established under title II of the Act.
    Left or abandoned in either an unreclaimed or inadequately reclaimed 
condition means, for Abandoned Mine Land programs, lands and water:
    (1) Which were mined or which were affected by such mining, 
wastebanks, processing or other mining processes prior to August 3, 
1977, or between August 3, 1977, and November 5, 1990, as authorized 
pursuant to section 402(g)(4) of SMCRA, and on which all mining has 
ceased;
    (2) Which continue, in their present condition, to degrade 
substantially the quality of the environment, prevent or damage the 
beneficial use of land or water resources, or endanger the health and 
safety of the public; and
    (3) For which there is no continuing reclamation responsibility 
under State or Federal laws, except as provided in sections 402(g)(4) 
and 403(b)(2) of SMCRA.
    OSM and OSMRE mean the Office of Surface Mining Reclamation and 
Enforcement established under title II of the Act.
    Person means an individual, Indian tribe when conducting surface 
coal mining and reclamation operations on non-Indian lands, partnership, 
association, society, joint venture, joint stock company, firm, company, 
corporation, cooperative or other business organization and any agency, 
unit, or instrumentality of Federal, State or local government including 
any publicly owned utility or publicly owned corporation of Federal 
State or local government.
    Person having an interest which is or may be adversely affected or 
person with a valid legal interest shall include any person--
    (a) Who uses any resource of economic, recreational, esthetic, or 
environmental value that may be adversely affected by coal exploration 
or surface coal mining and reclamation operations or any related action 
of the Secretary or the State regulatory authority; or

[[Page 13]]

    (b) Whose property is or may be adversely affected by coal 
exploration or surface coal mining and reclamation operations or any 
related action of the Secretary or the State regulatory authority.
    Project means a delineated area containing one or more abandoned 
mine land problems. A project may be a group of related reclamation 
activities with a common objective within a political subdivision of a 
State or within a logical, geographically defined area, such as a 
watershed, conservation district, or county planning area.
    Public office means a facility under the direction and control of a 
governmental entity which is open to public access on a regular basis 
during reasonable business hours.
    Reclamation activity means the reclamation, abatement, control, or 
prevention of adverse effects of past mining by an Abandoned Mine Land 
program.
    Reclamation program means a program established by a State or an 
Indian tribe in accordance with Title IV of SMCRA for reclamation of 
lands and water adversely affected by past mining, including the 
reclamation plan and annual applications for grants under the plan.
    Regional Director means a Regional Director of the Office or a 
Regional Director's representative.
    Regulatory authority means the department or agency in each State 
which has primary responsibility at the State level for administering 
the Act in the initial program, or the State regulatory authority where 
the State is administering the Act under a State regulatory program, or 
the Secretary in the initial or permanent program where the Secretary is 
administering the Act, or the Secretary when administering a Federal 
program or Federal lands program or when enforcing a State program 
pursuant to section 521(b) of the Act.
    Regulatory program means any approved State or Federal program or, 
in a State with no approved State or Federal program and coal 
exploration and surface coal mining and reclamation operations are on 
Federal lands, the requirements of subchapters A, F, G, J, K, L, M, and 
P of this chapter.
    Secretary means the Secretary of the Interior or the Secretary's 
representative.
    State regulatory authority means the department or agency in each 
State which has primary responsibility at the State level for 
administering the initial or permanent State regulatory program.
    Surface coal mining operations mean--
    (a) Activities conducted on the surface of lands in connection with 
a surface coal mine or, subject to the requirements of section 516 of 
the Act, surface operations and surface impacts incident to an 
underground coal mine, the products of which enter commerce or the 
operations of which directly or indirectly affect interstate commerce. 
Such activities include excavation for the purpose of obtaining coal, 
including such common methods as contour, strip, auger, mountain top 
removal, box cut, open pit, and area mining; the use of explosives and 
blasting; in situ distillation or retorting; leaching or other chemical 
or physical processing; and the cleaning, concentrating, or other 
processing or preparation of coal. Such activities also include the 
loading of coal for interstate commerce at or near the mine site. 
Provided, these activities do not include the extraction of coal 
incidental to the extraction of other minerals, where coal does not 
exceed 16\2/3\ percent of the tonnage of minerals removed for purposes 
of commercial use or sale, or coal exploration subject to section 512 of 
the Act; and, Provided further, that excavation for the purpose of 
obtaining coal includes extraction of coal from coal refuse piles; and
    (b) The areas upon which the activities described in paragraph (a) 
of this definition occur or where such activities disturb the natural 
land surface. These areas shall also include any adjacent land the use 
of which is incidental to any such activities, all lands affected by the 
construction of new roads or the improvement or use of existing roads to 
gain access to the site of those activities and for haulage and 
excavation, workings, impoundments, dams, ventilation shafts, entryways, 
refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm 
banks, tailings, holes or depressions, repair

[[Page 14]]

areas, storage areas, processing areas, shipping areas, and other areas 
upon which are sited structures, facilities, or other property or 
material on the surface, resulting from or incident to those activities.
    Surface coal mining and reclamation operations means surface coal 
mining operations and all activities necessary or incidental to the 
reclamation of such operations. This term includes the term surface coal 
mining operations.
    Ton means 2000 pounds avoirdupois (.90718 metric ton).

[44 FR 15313, Mar. 13, 1979; 44 FR 49684, Aug. 24, 1979, as amended at 
45 FR 54753, Aug. 18, 1980; 48 FR 6934, Feb. 16, 1983; 48 FR 20400, May 
5, 1983; 50 FR 28189, July 10, 1985; 52 FR 17729, May 11, 1987; 52 FR 
39407, Oct. 21, 1987; 73 FR 67629, Nov. 14, 2008]



Sec. 700.10  Information collection.

    The collection of information, and recordkeeping requirements, 
contained in 30 CFR 700.11(d), 700.12(b) and 700.13 has approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1029-0094. The information collected in Sec. 
700.11(d) is used by OSMRE and States to establish standards for 
determining when a mine site is no longer a surface coal mining and 
reclamation operation and thereby when regulatory jurisdiction may end. 
The information collection under Sec. 700.12(b) is used by OSMRE to 
consider need, costs, and benefits of a proposed regulatory change in 
order to grant or deny a petition that has been submitted. Information 
collected in Sec. 700.13 identifies the person and nature of a 
citizen's suit, so that OSMRE or a state can respond appropriately.

[53 FR 44363, Nov. 2, 1988]



Sec. 700.11  Applicability.

    (a) Except as provided in paragraph (b) of this section, this 
chapter applies to all coal exploration and surface coal mining and 
reclamation operations, except:
    (1) The extraction of coal by a landowner for his or her own 
noncommercial use from land owned or leased by him or her. Noncommercial 
use does not include the extraction of coal by one unit of an integrated 
company or other business or nonprofit entity which uses the coal in its 
own manufacturing or power plants;
    (2) The extraction of 250 tons of coal or less by a person 
conducting a surface coal mining and reclamation operation. A person who 
intends to remove more than 250 tons is not exempted;
    (3) The extraction of coal as an incidental part of Federal, State 
or local government-financed highway or other construction in accordance 
with part 707 of this chapter;
    (4) The extraction of coal incidental to the extraction of other 
minerals where coal does not exceed 16\2/3\ percent of the total tonnage 
of coal and other minerals removed for purposes of commercial use or 
sale in accordance with part 702 of this chapter.
    (5) Coal exploration on lands subject to the requirement of 43 CFR 
parts 3480-3487.
    (b) This chapter does not apply to the extraction of coal for 
commercial purposes where the surface coal mining and reclamation 
operation, together with any related operations, has or will have an 
affected area of two acres or less. For purposes of this paragraph:
    (1) Where a segment of a road is used for access or coal haulage by 
more than one surface coal mining operation, the entire segment shall be 
included in the affected area of each of those operations; provided, 
that two or more operations which are deemed related pursuant to 
paragraph (b)(2) of this section shall be considered as one operation 
for purposes of this paragraph.
    (2) Except as provided in paragraph (b)(3) of this section, surface 
coal mining operations shall be deemed related if they occur within 
twelve months of each other, are physically related, and are under 
common ownership or control.
    (i) Operations shall be deemed physically related if drainage from 
both operations flows into the same watershed at or before a point 
within five aerial miles of either operation.
    (ii) Operations shall be deemed under common ownership or control if 
they are owned or controlled, directly or indirectly, by or on behalf 
of:
    (A) The same person;

[[Page 15]]

    (B) Two or more persons, one of whom controls, is under common 
control with, or is controlled by the other; or
    (C) Members of the same family and their relatives, unless it is 
established that there is no direct or indirect business relationship 
between or among them;
    (iii) For purposes of this paragraph, control means: ownership of 50 
percent or more of the voting shares of, or general partnership in, an 
entity; any relationship which gives one person the ability in fact or 
law to direct what the other does; or any relationship which gives one 
person express or implied authority to determine the manner in which 
coal at different sites will be mined, handled, sold or disposed of.
    (3) Notwithstanding the provisions of paragraph (b)(2) of this 
section, the regulatory authority may determine, in accordance with the 
procedures applicable to requests for determination of exemption 
pursuant to paragraph (c) of this section, that two or more surface coal 
mining operations shall not be deemed related if, considering the 
history and circumstances relating to the coal, its location, the 
operations at the sites in question, all related operations and all 
persons mentioned in paragraph (b)(2)(ii) of this section, the 
regulatory authority concludes in writing that the operations are not of 
the type which the Act was intended to regulate and that there is no 
intention on the part of such operations or persons to evade the 
requirements of the Act or the applicable regulatory program.
    (4) The exemption provided by paragraph (b) of this section applies 
only to operations with an affected area of less than two acres where 
coal is being extracted for commercial purposes and to surface coal 
mining operations within that affected area incidental to such 
operations.
    (c) The regulatory authority may on its own initiative and shall, 
within a reasonable time of a request from any person who intends to 
conduct surface coal mining operations, make a written determination 
whether the operation is exempt under this section. The regulatory 
authority shall give reasonable notice of the request to interested 
persons. Prior to the time a determination is made, any person may 
submit, and the regulatory authority shall consider, any written 
information relevant to the determination. A person requesting that an 
operation be declared exempt shall have the burden of establishing the 
exemption. If a written determination of exemption is reversed through 
subsequent administrative or judicial action, any person who, in good 
faith, has made a complete and accurate request for an exemption and 
relied upon the determination, shall not be cited for violations which 
occurred prior to the date of the reversal.
    (d)(1) A regulatory authority may terminate its jurisdiction under 
the regulatory program over the reclaimed site of a completed surface 
coal mining and reclamation operation, or increment thereof, when:
    (i) The regulatory authority determines in writing that under the 
initial program, all requirements imposed under subchapter B of this 
chapter have been successfully completed; or
    (ii) The regulatory authority determines in writing that under the 
permanent program, all requirements imposed under the applicable 
regulatory program have been successfully completed or, where a 
performance bond was required, the regulatory authority has made a final 
decision in accordance with the State or Federal program counterpart to 
part 800 of this chapter to release the performance bond fully.
    (2) Following a termination under paragraph (d)(1) of this section, 
the regulatory authority shall reassert jurisdiction under the 
regulatory program over a site if it is demonstrated that the bond 
release or written determination referred to in paragraph (d)(1) of this 
section was based upon fraud, collusion, or misrepresentation of a 
material fact.

[47 FR 33431, July 2, 1982, as amended at 48 FR 40634, Sept. 8, 1983; 48 
FR 44779, Sept. 30, 1983; 49 FR 38477, Sept. 28, 1984; 53 FR 44363, Nov. 
2, 1988; 54 FR 52120, 54 FR 52120, Dec. 20, 1989]

    Effective Date Note: At 52 FR 21229, June 4, 1987, paragraph (b) of 
Sec. 700.11 was suspended insofar as it excepts from the applicability 
of 30 CFR chapter VII:
    (1) Any surface coal mining operations commencing on or after June 
6, 1987; and

[[Page 16]]

    (2) Any surface coal mining operations conducted on or after 
November 8, 1987.



Sec. 700.12  Petitions to initiate rulemaking.

    (a) Any person may petition the Director to initiate a proceeding 
for the issuance, amendment, or repeal of any regulation under the Act. 
The petition shall be submitted to the Office of the Director, Office of 
Surface Mining Reclamation and Enforcement, Department of the Interior, 
Washington, DC 20240.
    (b) The petition shall be a concise statement of the facts, 
technical justification, and law which require issuance, amendment, or 
repeal of a regulation under the Act and shall indicate whether the 
petitioner desires a public hearing.
    (c) Upon receipt of the petition, the Director shall determine if 
the petition sets forth facts, technical justification and law which may 
provide a reasonable basis for issuance, amendment or repeal of a 
regulation. Facts, technical justification or law previously considered 
in a petition or rulemaking on the same issue shall not provide a 
reasonable basis. If the Director determines that the petition has a 
reasonable basis, a notice shall be published in the Federal Register 
seeking comments from the public on the proposed change. The Director 
may hold a public hearing, may conduct an investigation or take other 
action to determine whether the petition should be granted.
    (d) Within 90 days from receipt of the petition, the Director shall 
issue a written decision either granting or denying the petition. The 
Director's decision shall constitute the final decision for the 
Department.
    (1) If the petition is granted, the Director shall initiate a 
rulemaking proceeding.
    (2) If the petition is denied, the Director shall notify the 
petitioner in writing, setting forth the reasons for denial.



Sec. 700.13  Notice of citizen suits.

    (a) A person who intends to initiate a civil action on his or her 
own behalf under section 520 of the Act shall give notice of intent to 
do so, in accordance with this section.
    (b) Notice shall be given by certified mail to the Secretary and the 
Director in all cases and to the head of the State regulatory authority, 
if a complaint involves or relates to a specific State. A copy of the 
notice shall be sent by first class mail to the Regional Director, if 
the complaint involves or relates to surface coal mining and reclamation 
operations in a specific region of the Office.
    (c) Notice shall be given by certified mail to the alleged violator, 
if the complaint alleges a violation of the Act or any regulation, 
order, or permit issued under the Act.
    (d) Service of notice under this section is complete upon mailing to 
the last known address of the person being notified.
    (e) A person giving notice regarding an alleged violation shall 
state, to the extent known--
    (1) Sufficient information to identify the provision of the Act, 
regulation, order, or permit allegedly violated;
    (2) The act or omission alleged to constitute a violation;
    (3) The name, address, and telephone numbers of the person or 
persons responsible for the alleged violation;
    (4) The date, time, and location of the alleged violation;
    (5) The name, address, and telephone number of the person giving 
notice; and
    (6) The name, address, and telephone number of legal counsel, if 
any, of the person giving notice.
    (f) A person giving notice of an alleged failure by the Secretary or 
a State regulatory authority to perform a mandatory act or duty under 
the Act shall state, to the extent known:
    (1) The provision of the Act containing the mandatory act or duty 
allegedly not performed;
    (2) Sufficient information to identify the omission alleged to 
constitute the failure to perform a mandatory act or duty under the Act;
    (3) The name, address, and telephone number of the person giving 
notice; and
    (4) The name, address, and telephone number of legal counsel, if 
any, of the person giving notice.

[[Page 17]]



Sec. 700.14  Availability of records.

    (a) Records required by the Act to be made available locally to the 
public shall be retained at the geographically closest office of the 
State or Federal regulatory authority having jurisdiction over the area 
involved.
    (b) Other records or documents in the possession of the Office may 
be requested under 43 CFR part 2, which implements the Freedom of 
Information Act and the Privacy Act.



Sec. 700.15  Computation of time.

    (a) Except as otherwise provided, computation of time under this 
chapter is based on calendar days.
    (b) In computing any period of prescribed time, the day on which the 
designated period of time begins is not included. The last day of the 
period is included unless it is a Saturday, Sunday, or legal holiday on 
which the regulatory authority is not open for business, in which event 
the period runs until the end of the next day which is not a Saturday, 
Sunday, or legal holiday.
    (c) Intermediate Saturdays, Sundays, and legal holidays are excluded 
from the computation when the period of prescribed time is 7 days or 
less.



PART 701_PERMANENT REGULATORY PROGRAM--Table of Contents



Sec.
701.1 Scope.
701.2 Objective.
701.3 Authority.
701.4 Responsibility.
701.5 Definitions.
701.11 Applicability.

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

    Source: 44 FR 15316, Mar. 13, 1979, unless otherwise noted.



Sec. 701.1  Scope.

    (a) This part provides general introductory material for the 
permanent regulatory program required by the Act.
    (b) The following regulations apply to the permanent regulatory 
program:
    (1) Subchapter C on State program application, approval, withdrawal, 
and grants, and Federal program implementation;
    (2) Subchapter D on surface coal mining and reclamation operations 
on Federal lands;
    (3) Subchapter E on surface coal mining and reclamation operations 
on Indian lands.
    (4) Subchapter F on criteria for designating lands unsuitable for 
surface coal mining operations and the process for designating these 
lands or withdrawing the designation by the regulatory authority; 
Provided, That, part 761 is applicable during the initial regulatory 
program under subchapter B of this chapter and 30 CFR part 211 \1\ and 
that part 769 and other parts incorporated therein are applicable to the 
initial Federal lands program under 30 CFR part 211; \1\
---------------------------------------------------------------------------

    \1\ Editorial Note: 30 CFR part 211 was redesignated as 43 CFR part 
3480 at 48 FR 41589, Sept. 16, 1983.
---------------------------------------------------------------------------

    (5) Subchapter G on the process for application, approval, denial, 
revision, and renewal of permits for surface coal mining and reclamation 
operations, including the small operator assistance program, 
requirements for special categories of these operations, and 
requirements for coal exploration;
    (6) Subchapter J on public liability insurance and performance bonds 
or other assurances of performance for surface coal mining and 
reclamation operations;
    (7) Subchapter K on performance standards which apply to coal 
exploration, surface coal mining and reclamation operations, and special 
categories of these operations;
    (8) Subchapter L on inspection and enforcement responsibilities and 
civil penalties; and
    (9) Subchapter M on the training, examination, and certification of 
blasters.

[44 FR 15316, Mar. 13, 1979; 44 FR 49685, Aug. 24, 1979, as amended at 
44 FR 77445, Dec. 31, 1979; 49 FR 38477, Sept. 28, 1984]



Sec. 701.2  Objective.

    The regulations in this part give--
    (a) A general overview of the regulatory program to be implemented 
by the State or Federal regulatory authority;
    (b) The applicability of that program to coal exploration and 
surface coal

[[Page 18]]

mining and reclamation operations; and
    (c) The definitions that apply to the regulation of coal exploration 
and surface coal mining and reclamation operations.



Sec. 701.3  Authority.

    The Secretary is required by section 501(b) of the Act to promulgate 
regulations which establish the permanent regulatory program; by section 
523 of the Act to promulgate regulations which establish the Federal 
lands programs; and is authorized by section 710 of the Act to 
promulgate regulations which establish a Federal program for Indian 
lands.

[49 FR 38477, Sept. 28, 1984]



Sec. 701.4  Responsibility.

    (a) A State regulatory authority shall assume primary responsibility 
for regulation of coal exploration and surface coal mining and 
reclamation operations during the permanent regulatory program upon 
submission to and approval by the Secretary of a State program meeting 
all applicable requirements of the Act and this chapter. After approval 
of the State program, the State regulatory authority has responsibility 
for review of and decisions on permits and bonding for surface coal 
mining and reclamation operations, approval of coal exploration which 
substantially disturbs the natural land surface and removes more than 
250 tons of coal from the earth in any one location, inspection of coal 
exploration and surface coal mining and reclamation operations for 
compliance with the Act, this chapter, the State program, permits and 
exploration approvals, and for enforcement of the State program.
    (b) While a State regulatory program is in effect, the Office's 
responsibility includes, but is not limited to--
    (1) Evaluating the administration of the State program through such 
means as periodic inspections of coal exploration and surface coal 
mining and reclamation operations in the State and review of exploration 
approvals, permits, inspection reports, and other documents required to 
be made available to the Office;
    (2) Referring to the State regulatory authority information which 
creates reasonable belief that a person is in violation of the Act, this 
chapter, the State regulatory program, a permit condition, or coal 
exploration approval condition, and initiating an inspection when 
authorized by the Act or this chapter;
    (3) Issuing notices of violation when a State regulatory authority 
fails to take appropriate action to cause a violation to be corrected; 
and
    (4) Issuing cessation orders, including imposing affirmative 
obligations, when a condition, practice, or violation exists which 
creates an imminent danger to the health or safety of the public, or is 
causing or could reasonably be expected to cause significant, imminent 
environmental harm to land, air, or water resources.
    (c) The Office shall implement a Federal program in a State, if that 
State does not have an approved State program by June 3, 1980. The 
Office shall not implement a Federal program in a State for a period of 
up to 1 year following that date if the State's failure to have an 
approved program by that date is due to an injunction imposed by a court 
of competent jurisdiction.
    (d) Under a Federal program, the Office shall be the regulatory 
authority for all coal exploration and surface coal mining and 
reclamation operations in that State and shall perform the functions 
that a State regulatory authority would perform under an approved State 
program.
    (e) During the period in which a State program is in effect, the 
Office shall assume responsibility for enforcing permit conditions, 
issuing new or revised permits, and issuing necessary notices and 
orders, when required by 30 CFR part 733.
    (f) The Secretary shall substitute a Federal program under 30 CFR 
part 736 for an approved State program, when required by 30 CFR part 
733.
    (g) The Secretary shall have the responsibility for administration 
of the Federal lands program. The Director and other Federal authorities 
shall have the responsibilities under a Federal lands program as are 
provided for under subchapter D of this chapter. In addition, State 
regulatory authorities

[[Page 19]]

shall have responsibilities to administer the Federal lands program as 
provided for under cooperative agreements approved by the Secretary in 
accordance with 30 CFR part 745.
    (h) The Secretary shall have the responsibility for the 
administration of the Federal program for Indian lands, as provided for 
under subchapter E of this chapter. The Director and other Federal 
authorities have the responsibilities under the Indian lands program as 
are provided for under subchapter E of this chapter.

[44 FR 15316, Mar. 13, 1979, as amended at 49 FR 38477, Sept. 28, 1984]



Sec. 701.5  Definitions.

    As used in this chapter, the following terms have the specified 
meanings, except where otherwise indicated:
    Acid drainage means water with a pH of less than 6.0 and in which 
total acidity exceeds total alkalinity, discharged from an active, 
inactive or abandoned surface coal mine and reclamation operation or 
from an area affected by surface coal mining and reclamation operations.
    Acid-forming materials means earth materials that contain sulfide 
minerals or other materials which, if exposed to air, water, or 
weathering processes, form acids that may create acid drainage.
    Adjacent area means the area outside the permit area where a 
resource or resources, determined according to the context in which 
adjacent area is used, are or reasonably could be expected to be 
adversely impacted by proposed mining operations, including probable 
impacts from underground workings.
    Administratively complete application means an application for 
permit approval or approval for coal exploration where required, which 
the regulatory authority determines to contain information addressing 
each application requirement of the regulatory program and to contain 
all information necessary to initiate processing and public review.
    Affected area means any land or water surface area which is used to 
facilitate, or is physically altered by, surface coal mining and 
reclamation operations. The affected area includes the disturbed area; 
any area upon which surface coal mining and reclamation operations are 
conducted; any adjacent lands the use of which is incidental to surface 
coal mining and reclamation operations; all areas covered by new or 
existing roads used to gain access to, or for hauling coal to or from, 
surface coal mining and reclamation operations, except as provided in 
this definition; any area covered by surface excavations, workings, 
impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, 
stockpiles, overburden piles, spoil banks, culm banks, tailings, holes 
or depressions, repair areas, storage areas, shipping areas; any areas 
upon which are sited structures, facilities, or other property material 
on the surface resulting from, or incident to, surface coal mining and 
reclamation operations; and the area located above underground workings. 
The affected area shall include every road used for purposes of access 
to, or for hauling coal to or from, surface coal mining and reclamation 
operations, unless the road (a) was designated as a public road pursuant 
to the laws of the jurisdiction in which it is located; (b) is 
maintained with public funds, and constructed, in a manner similar to 
other public roads of the same classification within the jurisdiction; 
and (c) there is substantial (more than incidental) public use.
    Agricultural activities means, with respect to alluvial valley 
floors, the use of any tract of land for the production of animal or 
vegetable life, based on regional agricultural practices, where the use 
is enhanced or facilitated by subirrigation or flood irrigation. These 
uses include, but are not limited to, farming and the pasturing or 
grazing of livestock. These uses do not include agricultural activities 
which have no relationship to the availability of water from 
subirrigation or flood irrigation practices.
    Agricultural use means the use of any tract of land for the 
production of animal or vegetable life. The uses include, but are not 
limited to, the pasturing, grazing, and watering of livestock, and the 
cropping, cultivation, and harvesting of plants.
    Alluvial valley floors means the unconsolidated stream-laid deposits 
holding

[[Page 20]]

streams with water availability sufficient for subirrigation or flood 
irrigation agricultural activities but does not include upland areas 
which are generally overlain by a thin veneer of colluvial deposits 
composed chiefly of debris from sheet erosion, deposits formed by 
unconcentrated runoff or slope wash, together with talus, or other mass-
movement accumulations, and windblown deposits.
    Applicant means any person seeking a permit, permit revision, 
renewal, and transfer, assignment, or sale of permit rights from a 
regulatory authority to conduct surface coal mining and reclamation 
operations or, where required, seeking approval for coal exploration.
    Applicant/Violator System or AVS means an automated information 
system of applicant, permittee, operator, violation and related data OSM 
maintains to assist in implementing the Act.
    Application means the documents and other information filed with the 
regulatory authority under this chapter for the issuance of permits; 
revisions; renewals; and transfer, assignment, or sale of permit rights 
for surface coal mining and reclamation operations or, where required, 
for coal exploration.
    Approximate original contour means that surface configuration 
achieved by backfilling and grading of the mined areas so that the 
reclaimed area, including any terracing or access roads, closely 
resembles the general surface configuration of the land prior to mining 
and blends into and complements the drainage pattern of the surrounding 
terrain, with all highwalls, spoil piles and coal refuse piles 
eliminated. Permanent water impoundments may be permitted where the 
regulatory authority has determined that they comply with 30 CFR 816.49 
and 816.56, 816.133 or 817.49, 817.56, and 817.133.
    Aquifer means a zone, stratum, or group of strata that can store and 
transmit water in sufficient quantities for a specific use.
    Arid and semiarid area means, in the context of alluvial valley 
floors, an area of the interior western United States, west of the 100th 
meridian west longitude, experiencing water deficits, where water use by 
native vegetation equals or exceeds that supplied by precipitation. All 
coalfields located in North Dakota west of the 100th meridian west 
longitude, all coalfields in Montana, Wyoming, Utah, Colorado, New 
Mexico, Idaho, Nevada, and Arizona, the Eagle Pass field in Texas, and 
the Stone Canyon and the Ione fields in California are in arid and 
semiarid areas.
    Auger mining means a method of mining coal at a cliff or highwall by 
drilling holes into an exposed coal seam from the highwall and 
transporting the coal along an auger bit to the surface.
    Best technology currently available means equipment, devices, 
systems, methods, or techniques which will (a) prevent, to the extent 
possible, additional contributions of suspended solids to stream flow or 
runoff outside the permit area, but in no event result in contributions 
of suspended solids in excess of requirements set by applicable State or 
Federal laws; and (b) minimize, to the extent possible, disturbances and 
adverse impacts on fish, wildlife and related environmental values, and 
achieve enhancement of those resources where practicable. The term 
includes equipment, devices, systems, methods, or techniques which are 
currently available anywhere as determined by the Director, even if they 
are not in routine use. The term includes, but is not limited to, 
construction practices, siting requirements, vegetative selection and 
planting requirements, animal stocking requirements, scheduling of 
activities and design of sedimentation ponds in accordance with 30 CFR 
parts 816 and 817. Within the constraints of the permanent program, the 
regulatory authority shall have the discretion to determine the best 
technology currently available on a case-by-case basis, as authorized by 
the Act and this chapter.
    Coal exploration means the field gathering of: (a) surface or 
subsurface geologic, physical, or chemical data by mapping, trenching, 
drilling, geophysical, or other techniques necessary to determine the 
quality and quantity of overburden and coal of an area; or (b) the 
gathering of environmental data to establish the conditions of an

[[Page 21]]

area before beginning surface coal mining and reclamation operations 
under the requirements of this chapter.
    Coal mine waste means coal processing waste and underground 
development waste.
    Coal preparation means chemical or physical processing and the 
cleaning, concentrating, or other processing or preparation of coal.
    Coal preparation plant means a facility where coal is subjected to 
chemical or physical processing or cleaning, concentrating, or other 
processing or preparation. It includes facilities associated with coal 
preparation activities, including, but not limited to the following: 
loading facilities; storage and stockpile facilities; sheds; shops, and 
other buildings; water-treatment and water-storage facilities; settling 
basins and impoundments; and coal processing and other waste disposal 
areas.
    Coal processing waste means earth materials which are separated and 
wasted from the product coal during cleaning, concentrating, or other 
processing or preparation of coal.
    Combustible material means organic material that is capable of 
burning, either by fire or through oxidation, accompanied by the 
evolution of heat and a significant temperature rise.
    Compaction means increasing the density of a material by reducing 
the voids between the particles and is generally accomplished by 
controlled placement and mechanical effort such as from repeated 
application of wheel, track, or roller loads from heavy equipment.
    Complete and accurate application means an application for permit 
approval or approval for coal exploration where required, which the 
regulatory authority determines to contain all information required 
under the Act, this subchapter, and the regulatory program that is 
necessary to make a decision on permit issuance.
    Control or controller, when used in parts 773, 774, and 778 of this 
chapter, refers to or means--
    (a) A permittee of a surface coal mining operation;
    (b) An operator of a surface coal mining operation; or
    (c) Any person who has the ability to determine the manner in which 
a surface coal mining operation is conducted.
    Cropland means land used for the production of adapted crops for 
harvest, alone or in a rotation with grasses and legumes, and includes 
row crops, small grain crops, hay crops, nursery crops, orchard crops, 
and other similar specialty crops.
    Cumulative impact area means the area, including the permit area, 
within which impacts resulting from the proposed operation may interact 
with the impacts of all anticipated mining on surface- and ground-water 
systems. Anticipated mining shall include, at a minimum, the entire 
projected lives through bond releases of: (a) The proposed operation, 
(b) all existing operations, (c) any operation for which a permit 
application has been submitted to the regulatory authority, and (d) all 
operations required to meet diligent development requirements for leased 
Federal coal for which there is actual mine development information 
available.
    Disturbed area means an area where vegetation, topsoil, or 
overburden is removed or upon which topsoil, spoil, coal processing 
waste, underground development waste, or noncoal waste is placed by 
surface coal mining operations. Those areas are classified as disturbed 
until reclamation is complete and the performance bond or other 
assurance of performance required by subchapter J of this chapter is 
released.
    Diversion means a channel, embankment, or other manmade structure 
constructed to divert water from one area to another.
    Downslope means the land surface between the projected outcrop of 
the lowest coalbed being mined along each highwall and a valley floor.
    Drinking, domestic or residential water supply means water received 
from a well or spring and any appurtenant delivery system that provides 
water for direct human consumption or household use. Wells and springs 
that serve only agricultural, commercial or industrial enterprises are 
not included except to the extent the water supply is for direct human 
consumption or human sanitation, or domestic use.

[[Page 22]]

    Embankment means an artificial deposit of material that is raised 
above the natural surface of the land and used to contain, divert, or 
store water, support roads or railways, or for other similar purposes.
    Ephemeral stream means a stream which flows only in direct response 
to precipitation in the immediate watershed or in response to the 
melting of a cover of snow and ice, and which has a channel bottom that 
is always above the local water table.
    Essential hydrologic functions means the role of an alluvial valley 
floor in collecting, storing, regulating, and making the natural flow of 
surface or ground water, or both, usefully available for agricultural 
activities by reason of the valley floor's topographic position, the 
landscape, and the physical properties of its underlying materials. A 
combination of these functions provides a water supply during extended 
periods of low precipitation.
    Excess spoil means spoil material disposed of in a location other 
than the mined-out area; provided that spoil material used to achieve 
the approximate original contour or to blend the mined-out area with the 
surrounding terrain in accordance with Sec. Sec. 816.102(d) and 
817.102(d) of this chapter in non-steep slope areas shall not be 
considered excess spoil.
    Existing structure means a structure or facility used in connection 
with or to facilitate surface coal mining and reclamation operations for 
which construction begins prior to the approval of a State program or 
implementation of a Federal program or Federal lands program, whichever 
occurs first.
    Farming means, with respect to alluvial valley floors, the primary 
use of those areas for the cultivation, cropping or harvesting of plants 
which benefit from irrigation, or natural subirrigation, that results 
from the increased moisture content in the alluvium of the valley 
floors. For purposes of this definition, harvesting does not include the 
grazing of livestock.
    Federal program means a program established by the Secretary 
pursuant to section 504 of the Act to regulate coal exploration and 
surface coal mining and reclamation operations on non-Federal and non-
Indian lands within a State in accordance with the Act and this chapter.
    (a) Complete Federal program means a program established by the 
Secretary pursuant to section 504 of the Act before June 3, 1980, or 
upon the complete withdrawal of a State program after June 3, 1980, by 
which the Director regulates all coal exploration and surface coal 
mining and reclamation operations.
    (b) Partial Federal program means a program established by the 
Secretary pursuant to sections 102, 201 and 504 of the Act upon the 
partial withdrawal of a State program, by which the Director may 
regulate appropriate portions of coal exploration and surface coal 
mining and reclamation operations.
    Flood irrigation means, with respect to alluvial valley floors, 
supplying water to plants by natural overflow or the diversion of flows, 
so that the irrigated surface is largely covered by a sheet of water.
    Fugitive dust means that particulate matter not emitted from a duct 
or stack which becomes airborne due to the forces of wind or surface 
coal mining and reclamation operations or both. During surface coal 
mining and reclamation operations it may include emissions from haul 
roads; wind erosion of exposed surfaces, storage piles, and spoil piles; 
reclamation operations; and other activities in which material is either 
removed, stored, transported, or redistributed.
    Gravity discharge means, with respect to underground mining 
activities, mine drainage that flows freely in an open channel 
downgradient. Mine drainage that occurs as a result of flooding a mine 
to the level of the discharge is not gravity discharge.
    Ground cover means the area of ground covered by the combined aerial 
parts of vegetation and the litter that is produced naturally onsite, 
expressed as a percentage of the total area of measurement.
    Ground water means subsurface water that fills available openings in 
rock or soil materials to the extent that they are considered water 
saturated.
    Half-shrub means a perennial plant with a woody base whose annually 
produced stems die back each year.

[[Page 23]]

    Head-of-hollow fill means a fill structure consisting of any 
material, other than organic material, placed in the uppermost reaches 
of a hollow where side slopes of the existing hollow, measured at the 
steepest point, are greater than 20 degrees or the average slope of the 
profile of the hollow from the toe of the fill to the top of the fill is 
greater than 10 degrees. In head-of-hollow fills the top surface of the 
fill, when completed, is at approximately the same elevation as the 
adjacent ridge line, and no significant area of natural drainage occurs 
above the fill draining into the fill area.
    Higher or better uses means postmining land uses that have a higher 
economic value or nonmonetary benefit to the landowner or the community 
than the premining land uses.
    Highwall means the face of exposed overburden and coal in an open 
cut of a surface coal mining activity or for entry to underground mining 
activities.
    Highwall remnant means that portion of highwall that remains after 
backfilling and grading of a remining permit area.
    Historically used for cropland means (a) lands that have been used 
for cropland for any 5 years or more out of the 10 years immediately 
preceding the acquisition, including purchase, lease, or option, of the 
land for the purpose of conducting or allowing through resale, lease or 
option the conduct of surface coal mining and reclamation operations; 
(b) lands that the regulatory authority determines, on the basis of 
additional cropland history of the surrounding lands and the lands under 
consideration, that the permit area is clearly cropland but falls 
outside the specific 5-years-in-10 criterion, in which case the 
regulations for prime farmland may be applied to include more years of 
cropland history only to increase the prime farmland acreage to be 
preserved; or (c) lands that would likely have been used as cropland for 
any 5 out of the last 10 years, immediately preceding such acquisition 
but for the same fact of ownership or control of the land unrelated to 
the productivity of the land.
    Hydrologic balance means the relationship between the quality and 
quantity of water inflow to, water outflow from, and water storage in a 
hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or 
reservoir. It encompasses the dynamic relationships among precipitation, 
runoff, evaporation, and changes in ground and surface water storage.
    Hydrologic regime means the entire state of water movement in a 
given area. It is a function of the climate and includes the phenomena 
by which water first occurs as atmospheric water vapor, passes into a 
liquid or solid form, falls as precipitation, moves along or into the 
ground surface, and returns to the atmosphere as vapor by means of 
evaporation and transpiration.
    Imminent danger to the health and safety of the public means the 
existence of any condition or practice, or any violation of a permit or 
other requirements of the Act in a surface coal mining and reclamation 
operation, which could reasonably be expected to cause substantial 
physical harm to persons outside the permit area before the condition, 
practice, or violation can be abated. A reasonable expectation of death 
or serious injury before abatement exists if a rational person, 
subjected to the same condition or practice giving rise to the peril, 
would avoid exposure to the danger during the time necessary for 
abatement.
    Impounding structure means a dam, embankment or other structure used 
to impound water, slurry, or other liquid or semi-liquid material.
    Impoundments means all water, sediment, slurry or other liquid or 
semi-liquid holding structures and depressions, either naturally formed 
or artificially built.
    In situ processes means activities conducted on the surface or 
underground in connection with in-place distillation, retorting, 
leaching, or other chemical or physical processing of coal. The term 
includes, but is not limited to, in situ gasification, in situ leaching, 
slurry mining, solution mining, borehole mining, and fluid recovery 
mining.
    Intermittent stream means--
    (a) A stream or reach of a stream that drains a watershed of at 
least one square mile, or

[[Page 24]]

    (b) A stream or reach of a stream that is below the local water 
table for at least some part of the year, and obtains its flow from both 
surface runoff and ground water discharge.
    Irreparable damage to the environment means any damage to the 
environment, in violation of the Act, the regulatory program, or this 
chapter, that cannot be corrected by actions of the applicant.
    Knowing or knowingly means that a person who authorized, ordered, or 
carried out an act or omission knew or had reason to know that the act 
or omission would result in either a violation or a failure to abate or 
correct a violation.
    Land use means specific uses or management-related activities, 
rather than the vegetation or cover of the land. Land uses may be 
identified in combination when joint or seasonal uses occur and may 
include land used for support facilities that are an integral part of 
the use. Changes of land use from one of the following categories to 
another shall be considered as a change to an alternative land use which 
is subject to approval by the regulatory authority.
    (a) Cropland. Land used for the production of adapted crops for 
harvest, alone or in rotation with grasses and legumes, that include row 
crops, small grain crops, hay crops, nursery crops, orchard crops, and 
other similar crops.
    (b) Pastureland or land occasionally cut for hay. Land used 
primarily for the long-term production of adapted, domesticated forage 
plants to be grazed by livestock or occasionally cut and cured for 
livestock feed.
    (c) Grazingland. Land used for grasslands and forest lands where the 
indigenous vegetation is actively managed for grazing, browsing, or 
occasional hay production.
    (d) Forestry. Land used or managed for the long-term production of 
wood, wood fiber, or wood-derived products.
    (e) Residential. Land used for single-and multiple-family housing, 
mobile home parks, or other residential lodgings.
    (f) Industrial/Commercial. Land used for--
    (1) Extraction or transformation of materials for fabrication of 
products, wholesaling of products, or long-term storage of products. 
This includes all heavy and light manufacturing facilities.
    (2) Retail or trade of goods or services, including hotels, motels, 
stores, restaurants, and other commercial establishments.
    (g) Recreation. Land used for public or private leisure-time 
activities, including developed recreation facilities such as parks, 
camps, and amusement areas, as well as areas for less intensive uses 
such as hiking, canoeing, and other undeveloped recreational uses.
    (h) Fish and wildlife habitat. Land dedicated wholly or partially to 
the production, protection, or management of species of fish or 
wildlife.
    (i) Developed water resources. Land used for storing water for 
beneficial uses, such as stockponds, irrigation, fire protection, flood 
control, and water supply.
    (j) Undeveloped land or no current use or land management. Land that 
is undeveloped or, if previously developed, land that has been allowed 
to return naturally to an undeveloped state or has been allowed to 
return to forest through natural succession.
    Lands eligible for remining means those lands that would otherwise 
be eligible for expenditures under section 404 or under section 
402(g)(4) of the Act.
    Material damage, in the context of Sec. Sec. 784.20 and 817.121 of 
this chapter, means:
    (a) Any functional impairment of surface lands, features, structures 
or facilities;
    (b) Any physical change that has a significant adverse impact on the 
affected land's capability to support any current or reasonably 
foreseeable uses or causes significant loss in production or income; or
    (c) Any significant change in the condition, appearance or utility 
of any structure or facility from its pre-subsidence condition.
    Materially damage the quantity or quality of water means, with 
respect to alluvial valley floors, to degrade or reduce by surface coal 
mining and reclamation operations the water quantity or quality supplied 
to the alluvial valley floor to the extent that resulting changes would 
signficantly decrease

[[Page 25]]

the capability of the alluvial valley floor to support farming.
    MSHA means the Mine Safety and Health Administration.
    Moist bulk density means the weight of soil (oven dry) per unit 
volume. Volume is measured when the soil is at field moisture capacity 
(1/3 bar moisture tension). Weight is determined after drying the soil 
at 105 [deg]C.
    Mulch means vegetation residues or other suitable materials that aid 
in soil stabilization and soil moisture conservation, thus providing 
micro-climatic conditions suitable for germination and growth.
    Non-commercial building means any building, other than an occupied 
residential dwelling, that, at the time the subsidence occurs, is used 
on a regular or temporary basis as a public building or community or 
institutional building as those terms are defined in Sec. 761.5 of this 
chapter. Any building used only for commercial agricultural, industrial, 
retail or other commercial enterprises is excluded.
    Noxious plants means species that have been included on official 
State lists of noxious plants for the State in which the surface coal 
mining and reclamation operation occurs.
    Occupied residential dwelling and structures related thereto means, 
for purposes of Sec. Sec. 784.20 and 817.121, any building or other 
structure that, at the time the subsidence occurs, is used either 
temporarily, occasionally, seasonally, or permanently for human 
habitation. This term also includes any building, structure or facility 
installed on, above or below, or a combination thereof, the land surface 
if that building, structure or facility is adjunct to or used in 
connection with an occupied residential dwelling. Examples of such 
structures include, but are not limited to, garages; storage sheds and 
barns; greenhouses and related buildings; utilities and cables; fences 
and other enclosures; retaining walls; paved or improved patios, walks 
and driveways; septic sewage treatment facilities; and lot drainage and 
lawn and garden irrigation systems. Any structure used only for 
commercial agricultural, industrial, retail or other commercial purposes 
is excluded.
    Operator means any person engaged in coal mining who removes or 
intends to remove more than 250 tons of coal from the earth or from coal 
refuse piles by mining within 12 consecutive calendar months in any one 
location.
    Other treatment facilities mean any chemical treatments, such as 
flocculation or neutralization, or mechanical structures, such as 
clarifiers or precipitators, that have a point source discharge and are 
utilized:
    (a) To prevent additional contributions of dissolved or suspended 
solids to streamflow or runoff outside the permit area, or
    (b) To comply with all applicable State and Federal water-quality 
laws and regulations.
    Outslope means the face of the spoil or embankment sloping downward 
from the highest elevation to the toe.
    Overburden means material of any nature, consolidated or 
unconsolidated, that overlies a coal deposit, excluding topsoil.
    Own, owner, or ownership, as used in parts 773, 774, and 778 of this 
chapter (except when used in the context of ownership of real property), 
means being a sole proprietor or owning of record in excess of 50 
percent of the voting securities or other instruments of ownership of an 
entity.
    Perennial stream means a stream or part of a stream that flows 
continuously during all of the calendar year as a result of ground-water 
discharge or surface runoff. The term does not include intermittent 
stream or ephemeral stream.
    Performance bond means a surety bond, collateral bond or self-bond 
or a combination thereof, by which a permittee assures faithful 
performance of all the requirements of the Act, this chapter, a State, 
Federal or Federal lands program, and the requirements of the permit and 
reclamation plan.
    Permanent diversion means a diversion remaining after surface coal 
mining and reclamation operations are completed which has been approved 
for retention by the regulatory authority and other appropriate State 
and Federal agencies.
    Permanent impoundment means an impoundment which is approved by the 
regulatory authority and, if required,

[[Page 26]]

by other State and Federal agencies for retention as part of the 
postmining land use.
    Permit means a permit to conduct surface coal mining and reclamation 
operations issued by the State regulatory authority pursuant to a State 
program or by the Secretary pursuant to a Federal program. For purposes 
of the Federal lands program, permit means a permit issued by the State 
regulatory authority under a cooperative agreement or by OSM where there 
is no cooperative agreement.
    Permit area means the area of land, indicated on the approved map 
submitted by the operator with his or her application, required to be 
covered by the operator's performance bond under subchapter J of this 
chapter and which shall include the area of land upon which the operator 
proposes to conduct surface coal mining and reclamation operations under 
the permit, including all disturbed areas; provided that areas 
adequately bonded under another valid permit may be excluded from the 
permit area.
    Permittee means a person holding or required by the Act or this 
chapter to hold a permit to conduct surface coal mining and reclamation 
operations issued by a State regulatory authority pursuant to a State 
program, by the Director pursuant to a Federal program, by the Director 
pursuant to a Federal lands program, or, where a cooperative agreement 
pursuant to section 523 of the Act has been executed, by the Director 
and the State regulatory authority.
    Precipitation event means a quantity of water resulting from 
drizzle, rain, snow, sleet, or hail in a limited period of time. It may 
be expressed in terms of recurrence interval. As used in these 
regulations, precipitation event also includes that quantity of water 
emanating from snow cover as snowmelt in a limited period of time.
    Previously mined area means land affected by surface coal mining 
operations prior to August 3, 1977, that has not been reclaimed to the 
standards of 30 CFR chapter VII.
    Prime farmland means those lands which are defined by the Secretary 
of Agriculture in 7 CFR part 657 (Federal Register Vol. 4 No. 21) and 
which have historically been used for cropland as that phrase is defined 
above.
    Principal shareholder means any person who is the record or 
beneficial owner of 10 percent or more of any class of voting stock.
    Property to be mined means both the surface estates and mineral 
estates within the permit area and the area covered by underground 
workings.
    Rangeland means land on which the natural potential (climax) plant 
cover is principally native grasses, forbs, and shrubs valuable for 
forage. This land includes natural grasslands and savannahs, such as 
prairies, and juniper savannahs, such as brushlands. Except for brush 
control, management is primarily achieved by regulating the intensity of 
grazing and season of use.
    Reasonably available spoil means spoil and suitable coal mine waste 
material generated by the remining operation or other spoil or suitable 
coal mine waste material located in the permit area that is accessible 
and available for use and that when rehandled will not cause a hazard to 
public safety or significant damage to the environment.
    Recharge capacity means the ability of the soils and underlying 
materials to allow precipitation and runoff to infiltrate and reach the 
zone of saturation.
    Reclamation means those actions taken to restore mined land as 
required by this chapter to a postmining land use approved by the 
regulatory authority.
    Recurrence interval means the interval of time in which a 
precipitation event is expected to occur once, on the average. For 
example, the 10-year 24-hour precipitation event would be that 24-hour 
precipitation event expected to occur on the average once in 10 years.
    Reference area means a land unit maintained under appropriate 
management for the purpose of measuring vegetation ground cover, 
productivity and plant species diversity that are produced naturally or 
by crop production methods approved by the regulatory authority. 
Reference areas must be representative of geology, soil, slope, and 
vegetation in the permit area.
    Refuse pile means a surface deposit of coal mine waste that does not 
impound

[[Page 27]]

water, slurry, or other liquid or semi-liquid material.
    Remining means conducting surface coal mining and reclamation 
operations which affect previously mined areas.
    Renewable resource lands means aquifers and areas for the recharge 
of aquifers and other underground waters, areas for agricultural or 
silvicultural production of food and fiber, and grazinglands.
    Replacement of water supply means, with respect to protected water 
supplies contaminated, diminished, or interrupted by coal mining 
operations, provision of water supply on both a temporary and permanent 
basis equivalent to premining quantity and quality. Replacement includes 
provision of an equivalent water delivery system and payment of 
operation and maintenance costs in excess of customary and reasonable 
delivery costs for premining water supplies.
    (a) Upon agreement by the permittee and the water supply owner, the 
obligation to pay such operation and maintenance costs may be satisfied 
by a one-time payment in an amount which covers the present worth of the 
increased annual operation and maintenance costs for a period agreed to 
by the permittee and the water supply owner.
    (b) If the affected water supply was not needed for the land use in 
existence at the time of loss, contamination, or diminution, and if the 
supply is not needed to achieve the postmining land use, replacement 
requirements may be satisfied by demonstrating that a suitable 
alternative water source is available and could feasibly be developed. 
If the latter approach is selected, written concurrence must be obtained 
from the water supply owner.
    Road means a surface right-of-way for purposes of travel by land 
vehicles used in surface coal mining and reclamation operations or coal 
exploration. A road consists of the entire area within the right-of-way, 
including the roadbed, shoulders, parking and side areas, approaches, 
structures, ditches, and surface. The term includes access and haulroads 
constructed, used, reconstructed, improved, or maintained for use in 
surface coal mining and reclamation operations or coal exploration, 
including use by coal hauling vehicles to and from transfer, processing, 
or storage areas. The term does not include ramps and routes of travel 
within the immediate mining area or within spoil or coal mine waste 
disposal areas.
    Safety factor means the ratio of the available shear strength to the 
developed shear stress, or the ratio of the sum of the resisting forces 
to the sum of the loading or driving forces, as determined by accepted 
engineering practices.
    Sedimentation pond means an impoundment used to remove solids from 
water in order to meet water quality standards or effluent limitations 
before the water leaves the permit area.
    Significant, imminent environmental harm to land, air or water 
resources means--
    (a) An environmental harm is an adverse impact on land, air, or 
water resources which resources include, but are not limited to, plant 
and animal life.
    (b) An environmental harm is imminent, if a condition, practice, or 
violation exists which--
    (1) Is causing such harm; or,
    (2) May reasonably be expected to cause such harm at any time before 
the end of the reasonable abatement time that would be set under section 
521(a)(3) of the Act.
    (c) An environmental harm is significant if that harm is appreciable 
and not immediately reparable.
    Siltation structure means a sedimentation pond, a series of 
sedimentation ponds, or other treatment facility.
    Slope means average inclination of a surface, measured from the 
horizontal, generally expressed as the ratio of a unit of vertical 
distance to a given number of units of horizontal distance (e.g., 1v: 
5h). It may also be expressed as a percent or in degrees.
    Soil horizons means contrasting layers of soil parallel or nearly 
parallel to the land surface. Soil horizons are differentiated on the 
basis of field characteristics and laboratory data. The four master soil 
horizons are--
    (a) A horizon. The uppermost mineral layer, often called the surface 
soil. It is the part of the soil in which organic matter is most 
abundant, and leaching

[[Page 28]]

of soluble or suspended particles is typically the greatest;
    (b) E horizon. The layer commonly near the surface below an A 
horizon and above a B horizon. An E horizon is most commonly 
differentiated from an overlying A horizon by lighter color and 
generally has measurably less organic matter than the A horizon. An E 
horizon is most commonly differentiated from an underlying B horizon in 
the same sequum by color of higher value or lower chroma, by coarser 
texture, or by a combination of theses properties;
    (c) B horizon. The layer that typically is immediately beneath the E 
horizon and often called the subsoil. This middle layer commonly 
contains more clay, iron, or aluminum than the A, E, or C horizons; and
    (d) C horizon. The deepest layer of soil profile. It consists of 
loose material or weathered rock that is relatively unaffected by 
biologic activity.
    Soil survey means a field and other investigation, resulting in a 
map showing the geographic distribution of different kinds of soils and 
an accompanying report that describes, classifies, and interprets such 
soils for use. Soil surveys must meet the standards of the National 
Cooperative Soil Survey as incorporated by reference in 30 CFR 
785.17(c)(1).
    Special bituminous coal mines means those mines in existence on 
January 1, 1972, or mines adjoining or having a common boundary with 
those mines for which development began after August 3, 1977, that are 
located in the State of Wyoming and that are being mined or will be 
mined according to the following criteria:
    (a) Surface mining takes place on a relatively limited site for an 
extended period of time. The surface opening of the excavation is at 
least the full size of the excavation and has a continuous border.
    (b) Excavation of the mine pit follows a coal seam that inclines 
15[deg] or more from the horizontal, and as the excavation proceeds 
downward it expands laterally to maintain stability of the pitwall or as 
necessary to accommodate the orderly expansion of the total mining 
operation.
    (c) The amount of material removed from the pit is large in 
comparison to the surface area disturbed.
    (d) There is no practicable alternative to the deep open-pit method 
of mining the coal.
    (e) There is no practicable way to reclaim the land as required in 
subchapter K.
    Spoil means overburden that has been removed during surface coal 
mining operations.
    Stabilize means to control movement of soil, spoil piles, or areas 
of disturbed earth by modifying the geometry of the mass, or by 
otherwise modifying physical or chemical properties, such as by 
providing a protective surface coating.
    State program means a program established by a State and approved by 
the Secretary pursuant to section 503 of the Act to regulate surface 
coal mining and reclamation operations on non-Indian and non-Federal 
lands within that State, according to the requirements of the Act and 
this chapter. If a cooperative agreement under part 745 has been entered 
into, a State program may apply to Federal lands, in accordance with the 
terms of the cooperative agreement.
    Steep slope means any slope of more than 20[deg] or such lesser 
slope as may be designated by the regulatory authority after 
consideration of soil, climate, and other characteristics of a region or 
State.
    Subirrigation means, with respect to alluvial valley floors, the 
supplying of water to plants from underneath or from a semisaturated or 
saturated subsurface zone where water is available for use by 
vegetation.
    Substantially disturb means, for purposes of coal exploration, to 
significantly impact land or water resources by blasting; by removal of 
vegetation, topsoil, or overburden; by construction of roads or other 
access routes; by placement of excavated earth or waste material on the 
natural land surface or by other such activities; or to remove more than 
250 tons of coal.
    Successor in interest means any person who succeeds to rights 
granted under a permit, by transfer, assignment, or sale of those 
rights.
    Surface mining activities means those surface coal mining and 
reclamation

[[Page 29]]

operations incident to the extraction of coal from the earth by removing 
the materials over a coal seam, before recovering the coal, by auger 
coal mining, or by recovery of coal from a deposit that is not in its 
original geologic location.
    Suspended solids or nonfilterable residue, expressed as milligrams 
per liter, means organic or inorganic materials carried or held in 
suspension in water which are retained by a standard glass fiber filter 
in the procedure outlined by the Environmental Protection Agency's 
regulations for waste water and analyses (40 CFR part 136).
    Temporary diversion means a diversion of a stream or overland flow 
which is used during coal exploration or surface coal mining and 
reclamation operations and not approved by the regulatory authority to 
remain after reclamation as part of the approved postmining land use.
    Temporary impoundment means an impoundment used during surface coal 
mining and reclamation operations, but not approved by the regulatory 
authority to remain as part of the approved postmining land use.
    Topsoil means the A and E soil horizon layers of the four master 
soil horizons.
    Toxic-forming materials means earth materials or wastes which, if 
acted upon by air, water, weathering, or microbiological processes, are 
likely to produce chemical or physical conditions in soils or water that 
are detrimental to biota or uses of water.
    Toxic mine drainage means water that is discharged from active or 
abandoned mines or other areas affected by coal exploration or surface 
coal mining and reclamation operations, which contains a substance that 
through chemical action or physical effects is likely to kill, injure, 
or impair biota commonly present in the area that might be exposed to 
it.
    Transfer, assignment, or sale of permit rights means a change of a 
permittee.
    Unanticipated event or condition, as used in Sec. 773.13 of this 
chapter, means an event or condition related to prior mining activity 
which arises from a surface coal mining and reclamation operation on 
lands eligible for remining and was not contemplated by the applicable 
permit.
    Underground development waste means waste-rock mixtures of coal, 
shale, claystone, siltstone, sandstone, limestone, or related materials 
that are excavated, moved, and disposed of from underground workings in 
connection with underground mining activities.
    Underground mining activities means a combination of--
    (a) Surface operations incident to underground extraction of coal or 
in situ processing, such as construction, use, maintenance, and 
reclamation of roads, above-ground repair areas, storage areas, 
processing areas, shipping areas, areas upon which are sited support 
facilities including hoist and ventilating ducts, areas utilized for the 
disposal and storage of waste, and areas on which materials incident to 
underground mining operations are placed; and
    (b) Underground operations such as underground construction, 
operation, and reclamation of shafts, adits, underground support 
facilities, in situ processing, and underground mining, hauling, 
storage, and blasting.
    Undeveloped rangeland means, for purposes of alluvial valley floors, 
lands where the use is not specifically controlled and managed.
    Upland areas means, with respect to alluvial valley floors, those 
geomorphic features located outside the floodplain and terrace complex, 
such as isolated higher terraces, alluvial fans, pediment surfaces, 
landslide deposits, and surfaces covered with residuum, mud flows or 
debris flows, as well as highland areas underlain by bedrock and covered 
by residual weathered material or debris deposited by sheetwash, 
rillwash, or windblown material.
    Valley fill means a fill structure consisting of any material, other 
than organic material, that is placed in a valley where side slopes of 
the existing valley, measured at the steepest point, are greater than 20 
degrees, or where the average slope of the profile of the valley from 
the toe of the fill to the top of the fill is greater than 10 degrees.
    Violation, when used in the context of the permit application 
information or

[[Page 30]]

permit eligibility requirements of sections 507 and 510(c) of the Act 
and related regulations, means--
    (1) A failure to comply with an applicable provision of a Federal or 
State law or regulation pertaining to air or water environmental 
protection, as evidenced by a written notification from a governmental 
entity to the responsible person; or
    (2) A noncompliance for which OSM has provided one or more of the 
following types of notice or a State regulatory authority has provided 
equivalent notice under corresponding provisions of a State regulatory 
program--
    (i) A notice of violation under Sec. 843.12 of this chapter.
    (ii) A cessation order under Sec. 843.11 of this chapter.
    (iii) A final order, bill, or demand letter pertaining to a 
delinquent civil penalty assessed under part 845 or 846 of this chapter.
    (iv) A bill or demand letter pertaining to delinquent reclamation 
fees owed under part 870 of this chapter.
    (v) A notice of bond forfeiture under Sec. 800.50 of this chapter 
when--
    (A) One or more violations upon which the forfeiture was based have 
not been abated or corrected;
    (B) The amount forfeited and collected is insufficient for full 
reclamation under Sec. 800.50(d)(1) of this chapter, the regulatory 
authority orders reimbursement for additional reclamation costs, and the 
person has not complied with the reimbursement order; or
    (C) The site is covered by an alternative bonding system approved 
under Sec. 800.11(e) of this chapter, that system requires 
reimbursement of any reclamation costs incurred by the system above 
those covered by any site-specific bond, and the person has not complied 
with the reimbursement requirement and paid any associated penalties.
    Violation, failure or refusal, for purposes of parts 724 and 846 of 
this chapter, means--
    (1) A failure to comply with a condition of a Federally-issued 
permit or of any other permit that OSM is directly enforcing under 
section 502 or 521 of the Act or the regulations implementing those 
sections; or
    (2) A failure or refusal to comply with any order issued under 
section 521 of the Act, or any order incorporated in a final decision 
issued by the Secretary under the Act, except an order incorporated in a 
decision issued under section 518(b) or section 703 of the Act.
    Violation notice means any written notification from a regulatory 
authority or other governmental entity, as specified in the definition 
of violation in this section.
    Water table means the upper surface of a zone of saturation, where 
the body of ground water is not confined by an overlying impermeable 
zone.
    Willful or willfully means that a person who authorized, ordered or 
carried out an act or omission that resulted in either a violation or 
the failure to abate or correct a violation acted--
    (1) Intentionally, voluntarily, or consciously; and
    (2) With intentional disregard or plain indifference to legal 
requirements.

[44 FR 15316, Mar. 13, 1979]

    Editorial Note: For Federal Register citations affecting Sec. 
701.5, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.

    Effective Date Note: In Sec. 701.5, the definition of Affected 
area, insofar as it excludes roads which are included in the definition 
of Surface coal mining operations, was suspended at 51 FR 41960, Nov. 
20, 1986.



Sec. 701.11  Applicability.

    (a) Any person who conducts surface coal mining operations on non-
Indian or non-Federal lands on or after 8 months from the date of 
approval of a State program or implementation of a Federal program shall 
have a permit issued pursuant to the applicable State or Federal 
program. However, under conditions specified in 30 CFR 773.4(b) of this 
chapter, a person may continue operations under a previously issued 
permit after 8 months from the date of approval of a State program or 
implementation of a Federal program.
    (b) Any person who conducts surface coal mining operations on 
Federal lands on or after 8 months from the date of approval of a State 
program or implementation of a Federal program for the State in which 
the Federal

[[Page 31]]

lands are located shall have a permit issued pursuant to part 740 of 
this chapter. However, under conditions specified in Sec. 740.13(a)(3) 
of this chapter, a person may continue such operations under a mining 
plan previously approved pursuant to 43 CFR part 3480 or a permit issued 
by the State under the interim State program after 8 months after the 
date of approval of a State program or implementation of a Federal 
program.
    (c) Any person who conducts surface coal mining operations on Indian 
lands on or after eight months from the effective date of the Federal 
program for Indian lands shall have a permit issued pursuant to part 750 
of this chapter. However, a person who is authorized to conduct surface 
coal mining operations may continue to conduct those operations beyond 
eight months from the effective date of the Federal program for Indian 
lands if the following conditions are met:
    (1) An application for a permit to conduct those operations has been 
made to the Director within two months after the effective date of the 
Federal program for Indian lands and the initial administrative decision 
on that application has not been issued; and
    (2) Those operations are conducted in compliance with all terms and 
conditions of the existing authorization to mine, the requirements of 
the Act, 25 CFR part 216, and the requirements of all applicable mineral 
agreements, leases or licenses.
    (d) The requirements of subchapter K of this chapter shall be 
effective and shall apply to each surface coal mining and reclamation 
operation for which the surface coal mining operation is required to 
obtain a permit under the Act, on the earliest date upon which the Act 
and this chapter require a permit to be obtained, except as provided in 
paragraph (e) of this section.
    (e)(1) Each structure used in connection with or to facilitate a 
coal exploration or surface coal mining and reclamation operation shall 
comply with the performance standards and the design requirements of 
subchapter K of this chapter, except that--
    (i) An existing structure which meets the performance standards of 
subchapter K of this chapter but does not meet the design requirements 
of subchapter K of this chapter may be exempted from meeting those 
design requirements by the regulatory authority. The regulatory 
authority may grant this exemption only as part of the permit 
application process after obtaining the information required by 30 CFR 
780.12 or 784.12 and after making the findings required in 30 CFR 
773.15;
    (ii) If the performance standard of subchapter B of this chapter is 
at least as stringent as the comparable performance standard of 
subchapter K of this chapter, an existing structure which meets the 
performance standards of subchapter B of this chapter may be exempted by 
the regulatory authority from meeting the design requirements of 
subchapter K of this chapter. The regulatory authority may grant this 
exemption only as part of the permit application process after obtaining 
the information required by 30 CFR 780.12 or 784.12 and after making the 
findings required in 30 CFR 773.15;
    (iii) An existing structure which meets a performance standard of 
subchapter B of this chapter which is less stringent than the comparable 
performance standards of subchapter K of this chapter or which does not 
meet a performance standard of subchapter K of this chapter, for which 
there was no equivalent performance standards in subchapter B of this 
chapter, shall be modified or reconstructed to meet the performance and 
design standard of subchapter K of this chapter pursuant to a compliance 
plan approved by the regulatory authority only as part of the permit 
application as required in 30 CFR 780.12 or 784.12 and according to the 
findings required by 30 CFR 773.15;
    (iv) An existing structure which does not meet the performance 
standards of subchapter B of this chapter and which the applicant 
proposes to use in connection with or to facilitate the coal exploration 
or surface coal mining and reclamation operation shall be modified or 
reconstructed to meet the performance and design standards of subchapter 
K prior to issuance of the permit.
    (2) The exemptions provided in paragraphs (e)(1)(i) and (e)(1)(ii) 
of this section shall not apply to--

[[Page 32]]

    (i) The requirements for existing and new coal mine waste disposal 
facilities; and
    (ii) The requirements to restore the approximate original contour of 
the land.
    (f)(1) Any person conducting coal exploration on non-Federal and 
non-Indian lands on or after the date on which a State program is 
approved or a Federal program implemented, shall either file a notice of 
intention to explore or obtain approval of the regulatory authority, as 
required by 30 CFR part 772.
    (2) Coal exploration performance standards in 30 CFR part 815 shall 
apply to coal exploration on non-Federal and non-Indian lands which 
substantially disturbs the natural land surface 2 months after approval 
of a State program or implementation of a Federal program.

(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)

[44 FR 15316, Mar. 13, 1979, as amended at 44 FR 77446, Dec. 31, 1979; 
48 FR 6935, Feb. 16, 1983; 48 FR 44391, Sept. 28, 1983; 48 FR 44779, 
Sept. 30, 1983; 49 FR 38477, Sept. 28, 1984; 54 FR 13822, Apr. 5, 1989; 
65 FR 79663, Dec. 19, 2000]

    Effective Date Note: A document published at 44 FR 67942, Nov. 27, 
1979, temporarily suspended Sec. 701.11(d) (1) and (2), which were 
redesignated as paragraphs (e) (1) and (2) at 49 FR 38477, Sept. 28, 
1984, insofar as it may be read to retain discretion in the regulatory 
authority to grant an exemption from reconstruction of existing 
structures after making the findings in 30 CFR 773.15.



PART 702_EXEMPTION FOR COAL EXTRACTION INCIDENTAL TO THE EXTRACTION OF OTHER 

MINERALS--Table of Contents



Sec.
702.1 Scope.
702.5 Definitions.
702.10 Information collection.
702.11 Application requirements and procedures.
702.12 Contents of application for exemption.
702.13 Public availability of information.
702.14 Requirements for exemption.
702.15 Conditions of exemption and right of inspection and entry.
702.16 Stockpiling of minerals.
702.17 Revocation and enforcement.
702.18 Reporting requirements.

    Authority: 30 U.S.C. 1201 et seq., as amended.

    Source: 54 FR 52120, Dec. 20, 1989, unless otherwise noted.



Sec. 702.1  Scope.

    This part implements the exemption contained in section 701(28) of 
the Act concerning the extraction of coal incidental to the extraction 
of other minerals where coal does not exceed 16\2/3\ percent of the 
total tonnage of coal and other minerals removed for purposes of 
commercial use or sale.



Sec. 702.5  Definitions.

    As used in this part, the following terms have the meaning 
specified, except where otherwise indicated:
    (a) Cumulative measurement period means the period of time over 
which both cumulative production and cumulative revenue are measured.
    (1) For purposes of determining the beginning of the cumulative 
measurement period, subject to regulatory authority approval, the 
operator must select and consistently use one of the following:
    (i) For mining areas where coal or other minerals were extracted 
prior to August 3, 1977, the date extraction of coal or other minerals 
commenced at that mining area or August 3, 1977, or
    (ii) For mining areas where extraction of coal or other minerals 
commenced on or after August 3, 1977, the date extraction of coal or 
other minerals commenced at that mining area, whichever is earlier.
    (2) For annual reporting purposes pursuant to Sec. 702.18 of this 
part, the end of the period for which cumulative production and revenue 
is calculated is either
    (i) For mining areas where coal or other minerals were extracted 
prior to April 1, 1990, March 31, 1990, and every March 31 thereafter; 
or
    (ii) For mining areas where extraction of coal or other minerals 
commenced on or after April 1, 1990, the last day of the calendar 
quarter during which coal extraction commenced, and each anniversary of 
that day thereafter.
    (b) Cumulative production means the total tonnage of coal or other 
minerals extracted from a mining area during

[[Page 33]]

the cumulative measurement period. The inclusion of stockpiled coal and 
other mineral tonnages in this total is governed by Sec. 702.16.
    (c) Cumulative revenue means the total revenue derived from the sale 
of coal or other minerals and the fair market value of coal or other 
minerals transferred or used, but not sold, during the cumulative 
measurement period.
    (d) Mining area means an individual excavation site or pit from 
which coal, other minerals and overburden are removed.
    (e) Other minerals means any commercially valuable substance mined 
for its mineral value, excluding coal, topsoil, waste and fill material.



Sec. 702.10  Information collection.

    The collections of information contained in Sec. Sec. 702.11, 
702.12, 702.13, 702.15 and 702.18 of this part have been approved by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. and 
assigned clearance number 1029-0089. The information will be used to 
determine the initial and continuing applicability of the incidental 
mining exemption to a particular mining operation. Response is required 
to obtain and maintain the incidental mining exemption in accordance 
with section 701(28) of the Act.
    Public reporting burden for this collection of information is 
estimated to average one hour per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the collection 
of information. Send comments regarding this burden estimate or any 
other aspect of this collection of information, including suggestions 
for reducing the burden, to Information Collection Clearance Officer, 
OSM Department of the Interior, 1951 Constitution Avenue, NW., 
Washington, DC 20240; and to the Office of Management and Budget, 
Paperwork Reduction Project (1029-0089), OMB, Washington, DC 20503.



Sec. 702.11  Application requirements and procedures.

    (a)(1) Any person who plans to commence or continue coal extraction 
after April 1, 1990, under a Federal program or on Indian lands, or 
after the effective date of counterpart provisions in a State program, 
in reliance on the incidental mining exemption shall file a complete 
application for exemption with the regulatory authority for each mining 
area.
    (2) Following incorporation of an exemption application approval 
process into a regulatory program, a person may not commence coal 
extraction based upon the exemption until the regulatory authority 
approves such application, except as provided in paragraph (e)(3) of 
this section.
    (b) Existing operations. Any person who has commenced coal 
extraction at a mining area in reliance upon the incidental mining 
exemption prior to April 1, 1990, in a State with a Federal program or 
on Indian lands, or prior to the effective date of counterpart 
provisions in a State program, may continue mining operations for 60 
days after such effective date. Coal extraction may not continue after 
such 60-day period unless that person files an administratively complete 
application for exemption with the regulatory authority. If an 
administratively complete application is filed within 60 days, the 
person may continue extracting coal in reliance on the exemption beyond 
the 60-day period until the regulatory authority makes an administrative 
decision on such application.
    (c) Additional information. The regulatory authority shall notify 
the applicant if the application for exemption is incomplete and may at 
any time require submittal of additional information.
    (d) Public comment period. Following publication of the newspaper 
notice required by Sec. 702.12(g), the regulatory authority shall 
provide a period of no less than 30 days during which time any person 
having an interest which is or may be adversely affected by a decision 
on the application may submit written comments or objections.
    (e) Exemption determination. (1) No later than 90 days after filing 
of an administratively complete application, the regulatory authority 
shall make a written determination whether, and under what conditions, 
the persons claiming the exemption are exempt

[[Page 34]]

under this part, and shall notify the applicant and persons submitting 
comments on the application of the determination and the basis for the 
determination.
    (2) The determination of exemption shall be based upon information 
contained in the application and any other information available to the 
regulatory authority at that time.
    (3) If the regulatory authority fails to provide an applicant with 
the determination as specified in paragraph (e)(1) of this section, an 
applicant who has not begun may commence coal extraction pending a 
determination on the application unless the regulatory authority issues 
an interim finding, together with reasons therefor, that the applicant 
may not begin coal extraction.
    (f) Administrative review. (1) Any adversely affected person may 
request administrative review of a determination under paragraph (e) of 
this section within 30 days of the notification of such determination in 
accordance with procedures established under 43 CFR 4.1280 when OSM is 
the regulatory authority or under corresponding State procedures when a 
State is the regulatory authority.
    (2) A petition for administrative review filed under 43 CFR 4.1280 
or under corresponding State procedures shall not suspend the effect of 
a determination under paragraph (e) of this section.



Sec. 702.12  Contents of application for exemption.

    An application for exemption shall include at a minimum:
    (a) The name and address of the applicant;
    (b) A list of the minerals sought to be extracted;
    (c) Estimates of annual production of coal and the other minerals 
within each mining area over the anticipated life of the mining 
operation;
    (d) Estimated annual revenues to be derived from bona fide sales of 
coal and other minerals to be extracted within the mining area;
    (e) Where coal or the other minerals are to be used rather than 
sold, estimated annual fair market values at the time of projected use 
of the coal and other minerals to be extracted from the mining area;
    (f) The basis for all annual production, revenue, and fair market 
value estimates;
    (g) A description, including county, township if any, and boundaries 
of the land, of sufficient certainty that the mining areas may be 
located and distinguished from other mining areas;
    (h) An estimate to the nearest acre of the number of acres that will 
compose the mining area over the anticipated life of the mining 
operation;
    (i) Evidence of publication, in a newspaper of general circulation 
in the county of the mining area, of a public notice that an application 
for exemption has been filed with the regulatory authority (The public 
notice must identify the persons claiming the exemption and must contain 
a description of the proposed operation and its locality that is 
sufficient for interested persons to identify the operation.);
    (j) Representative stratigraphic cross-section(s) based on test 
borings or other information identifying and showing the relative 
position, approximate thickness and density of the coal and each other 
mineral to be extracted for commercial use or sale and the relative 
position and thickness of any material, not classified as other 
minerals, that will also be extracted during the conduct of mining 
activities;
    (k) A map of appropriate scale which clearly identifies the mining 
area;
    (l) A general description of mining and mineral processing 
activities for the mining area;
    (m) A summary of sales commitments and agreements for future 
delivery, if any, which the applicant has received for other minerals to 
be extracted from the mining area, or a description of potential markets 
for such minerals;
    (n) If the other minerals are to be commercially used by the 
applicant, a description specifying the use;
    (o) For operations having extracted coal or other minerals prior to 
filing an application for exemption, in addition to the information 
required above, the following information must also be submitted:
    (1) Any relevant documents the operator has received from the 
regulatory

[[Page 35]]

authority documenting its exemption from the requirements of the Act;
    (2) The cumulative production of the coal and other minerals from 
the mining area; and
    (3) Estimated tonnages of stockpiled coal and other minerals; and
    (p) Any other information pertinent to the qualification of the 
operation as exempt.



Sec. 702.13  Public availability of information.

    (a) Except as provided in paragraph (b) of this section, all 
information submitted to the regulatory authority under this part shall 
be made immediately available for public inspection and copying at the 
local offices of the regulatory authority having jurisdiction over the 
mining operations claiming exemption until at least three years after 
expiration of the period during which the subject mining area is active.
    (b) The regulatory authority may keep information submitted to the 
regulatory authority under this part confidential if the person 
submitting it requests in writing, at the time of submission, that it be 
kept confidential and the information concerns trade secrets or is 
privileged commercial or financial information of the persons intending 
to conduct operations under this part.
    (c) Information requested to be held as confidential under paragraph 
(b) of this section shall not be made publicly available until after 
notice and opportunity to be heard is afforded persons both seeking and 
opposing disclosure of the information.



Sec. 702.14  Requirements for exemption.

    (a) Activities are exempt from the requirements of the Act if all of 
the following are satisfied:
    (1) The cumulative production of coal extracted from the mining area 
determined annually as described in this paragraph does not exceed 16\2/
3\ percent of the total cumulative production of coal and other minerals 
removed during such period for purposes of bona fide sale or reasonable 
commercial use.
    (2) Coal is produced from a geological stratum lying above or 
immediately below the deepest stratum from which other minerals are 
extracted for purposes of bona fide sale or reasonable commercial use.
    (3) The cumulative revenue derived from the coal extracted from the 
mining area determined annually shall not exceed 50 percent of the total 
cumulative revenue derived from the coal and other minerals removed for 
purposes of bona fide sale or reasonable commercial use. If the coal 
extracted or the minerals removed are used by the operator or 
transferred to a related entity for use instead of being sold in a bona 
fide sale, then the fair market value of the coal or other minerals 
shall be calculated at the time of use or transfer and shall be 
considered rather than revenue.
    (b) Persons seeking or that have obtained an exemption from the 
requirements of the Act shall comply with the following:
    (1) Each other mineral upon which an exemption under this part is 
based must be a commercially valuable mineral for which a market exists 
or which is mined in bona fide anticipation that a market will exist for 
the mineral in the reasonably foreseeable future, not to exceed twelve 
months from the end of the current period for which cumulative 
production is calculated. A legally binding agreement for the future 
sale of other minerals is sufficient to demonstrate the above standard.
    (2) If either coal or other minerals are transferred or sold by the 
operator to a related entity for its use or sale, the transaction must 
be made for legitimate business purposes.



Sec. 702.15  Conditions of exemption and right of inspection and entry.

    A person conducting activities covered by this part shall:
    (a) Maintain on-site or at other locations available to authorized 
representatives of the regulatory authority and the Secretary 
information necessary to verify the exemption including, but not limited 
to, commercial use and sales information, extraction tonnages, and a 
copy of the exemption application and exemption approved by the 
regulatory authority;

[[Page 36]]

    (b) Notify the regulatory authority upon the completion of the 
mining operation or permanent cessation of all coal extraction 
activities; and
    (c) Conduct operations in accordance with the approved application 
or when authorized to extract coal under Sec. 702.11(b) or Sec. 
702.11(e)(3) prior to submittal or approval of an exemption application, 
in accordance with the standards of this part for Federal programs and 
on Indian lands or in accordance with counterpart provisions when 
included in State programs.
    (d) Authorized representatives of the regulatory authority and the 
Secretary shall have the right to conduct inspections of operations 
claiming exemption under this part.
    (e) Each authorized representative of the regulatory authority and 
the Secretary conducting an inspection under this part:
    (1) Shall have a right of entry to, upon, and through any mining and 
reclamation operations without advance notice or a search warrant, upon 
presentation of appropriate credentials;
    (2) May, at reasonable times and without delay, have access to and 
copy any records relevant to the exemption; and
    (3) Shall have a right to gather physical and photographic evidence 
to document conditions, practices or violations at a site.
    (f) No search warrant shall be required with respect to any activity 
under paragraphs (d) and (e) of this section, except that a search 
warrant may be required for entry into a building.



Sec. 702.16  Stockpiling of minerals.

    (a) Coal. Coal extracted and stockpiled may be excluded fom the 
calculation of cumulative production until the time of its sale, 
transfer to a related entity or use:
    (1) Up to an amount equaling a 12-month supply of the coal required 
for future sale, transfer or use as calculated based upon the average 
annual sales, transfer and use from the mining area over the two 
preceding years; or
    (2) For a mining area where coal has been extracted for a period of 
less than two years, up to an amount that would represent a 12-month 
supply of the coal required for future sales, transfer or use as 
calculated based on the average amount of coal sold, transferred or used 
each month.
    (b) Other minerals. (1) The regulatory authority shall disallow all 
or part of an operator's tonnages of stockpiled other minerals for 
purposes of meeting the requirements of this part if the operator fails 
to maintain adequate and verifiable records of the mining area of 
origin, the disposition of stockpiles or if the disposition of the 
stockpiles indicates the lack of commercial use or market for the 
minerals.
    (2) The regulatory authority may only allow an operator to utilize 
tonnages of stockpiled other minerals for purposes of meeting the 
requirements of this part if:
    (i) The stockpiling is necessary to meet market conditions or is 
consistent with generally accepted industry practices; and
    (ii) Except as provided in paragraph (b)(3) of this section, the 
stockpiled other minerals do not exceed a 12-month supply of the mineral 
required for future sales as approved by the regulatory authority on the 
basis of the exemption application.
    (3) The regulatory authority may allow an operator to utilize 
tonnages of stockpiled other minerals beyond the 12-month limit 
established in paragraph (b)(2) of this section if the operator can 
demonstrate to the regulatory authority's satisfaction that the 
additional tonnage is required to meet future business obligations of 
the operator, such as may be demonstrated by a legally binding agreement 
for future delivery of the minerals.
    (4) The regulatory authority may periodically revise the other 
mineral stockpile tonnage limits in accordance with the criteria 
established by paragraphs (b) (2) and (3) of this section based on 
additional information available to the regulatory authority.



Sec. 702.17  Revocation and enforcement.

    (a) Regulatory authority responsibility. The regulatory authority 
shall conduct an annual compliance review of the mining area, utilizing 
the annual report submitted pursuant to Sec. 702.18, an on-site 
inspection and any other information available to the regulatory 
authority.

[[Page 37]]

    (b) If the regulatory authority has reason to believe that a 
specific mining area was not exempt under the provisions of this part or 
counterpart provisions of the State regulatory program at the end of the 
previous reporting period, is not exempt, or will be unable to satisfy 
the exemption criteria at the end of the current reporting period, the 
regulatory authority shall notify the operator that the exemption may be 
revoked and the reason(s) therefor. The exemption will be revoked unless 
the operator demonstrates to the regulatory authority within 30 days 
that the mining area in question should continue to be exempt.
    (c)(1) If the regulatory authority finds that an operator has not 
demonstrated that activities conducted in the mining area qualify for 
the exemption, the regulatory authority shall revoke the exemption and 
immediately notify the operator and intervenors. If a decision is made 
not to revoke an exemption, the regulatory authority shall immediately 
notify the operator and intervenors.
    (2) Any adversely affected person may request administrative review 
of a decision whether to revoke an exemption within 30 days of the 
notification of such decision in accordance with procedures established 
under 43 CFR 4.1280 when OSM is the regulatory authority or under 
corresponding State procedures when a State is the regulatory authority.
    (3) A petition for administrative review filed under 43 CFR 4.1280 
or under corresponding State procedures shall not suspend the effect of 
a decision whether to revoke an exemption.
    (d) Direct enforcement. (1) An operator mining in accordance with 
the terms of an approved exemption shall not be cited for violations of 
the regulatory program which occurred prior to the revocation of the 
exemption.
    (2) An operator who does not conduct activities in accordance with 
the terms of an approved exemption and knows or should know such 
activities are not in accordance with the approved exemption shall be 
subject to direct enforcement action for violations of the regulatory 
program which occur during the period of such activities.
    (3) Upon revocation of an exemption or denial of an exemption 
application, an operator shall stop conducting surface coal mining 
operations until a permit is obtained and shall comply with the 
reclamation standards of the applicable regulatory program with regard 
to conditions, areas and activities existing at the time of revocation 
or denial.



Sec. 702.18  Reporting requirements.

    (a)(1) Following approval by the regulatory authority of an 
exemption for a mining area, the person receiving the exemption shall, 
for each mining area, file a written report annually with the regulatory 
authority containing the information specified in paragraph (b) of this 
section.
    (2) The report shall be filed no later than 30 days after the end of 
the 12-month period as determined in accordance with the definition of 
Cumulative measurement period in Sec. 702.5 of this part.
    (3) The information in the report shall cover:
    (i) Annual production of coal and other minerals and annual revenue 
derived from coal and other minerals during the preceding 12-month 
period, and
    (ii) The cumulative production of coal and other minerals and the 
cumulative revenue derived from coal and other minerals.
    (b) For each period and mining area covered by the report, the 
report shall specify:
    (1) The number of tons of extracted coal sold in bona fide sales and 
total revenue derived from such sales;
    (2) The number of tons of coal extracted and used or transferred by 
the operator or related entity and the estimated total fair market value 
of such coal;
    (3) The number of tons of coal stockpiled;
    (4) The number of tons of other commercially valuable minerals 
extracted and sold in bona fide sales and total revenue derived from 
such sales;
    (5) The number of tons of other commercially valuable minerals 
extracted and used or transferred by the operator or related entity and 
the estimated total fair market value of such minerals; and

[[Page 38]]

    (6) The number of tons of other commercially valuable minerals 
removed and stockpiled by the operator.



PART 705_RESTRICTION ON FINANCIAL INTERESTS OF STATE EMPLOYEES--Table of 

Contents



Sec.
705.1 Purpose.
705.2 Objectives.
705.3 Authority.
705.4 Responsibility.
705.5 Definitions.
705.6 Penalties.
705.10 Information collection.
705.11 Who shall file.
705.13 When to file.
705.15 Where to file.
705.17 What to report.
705.18 Gifts and gratuities.
705.19 Resolving prohibited interests.
705.21 Appeals procedures.

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

    Source: 42 FR 56060, Oct. 20, 1977, unless otherwise noted.



Sec. 705.1  Purpose.

    This part sets forth the minimum policies and procedures that States 
must establish and use to implement section 517(g) of the Act in order 
to eligible for reimbursement of costs of enforcing and administering 
the initial regulatory program under section 502, or for grants for 
developing, administering and enforcing a State regulatory program under 
section 705 of the Act, or to assume primary regulatory authority under 
section 503 of the Act (Pub. L. 95-87). Compliance with the policies and 
procedures in this part will satisfy the requirements of section 517(g) 
of the Act. Section 517(g) prohibits certain employees of the State 
Regulatory Authority from having any direct or indirect financial 
interest in any underground or surface coal mining operation. The 
regulations in this part are applicable to employees of the State 
Regulatory Authority as defined in Sec. 705.5.



Sec. 705.2  Objectives.

    The objectives of this part are:
    (a) To ensure that the States adopt a standard program for 
implementing the provisions in section 517(g) of the Act.
    (b) To establish methods which will ensure, as required by section 
517(g) of the Act, that each employee of the State Regulatory Authority 
who performs any function or duty under the Act does not have a direct 
or indirect financial interest in any underground or surface coal mining 
operation.
    (c) To establish the methods by which the monitoring, enforcing and 
reporting responsibilities of the Secretary of the Interior as stated in 
section 517(g) will be accomplished.



Sec. 705.3  Authority.

    (a) The Secretary of the Interior is authorized by Pub. L. 95-87 to:
    (1) Establish the methods by which he or she and State officials 
will monitor and enforce the provisions contained in section 517(g) of 
the Act;
    (2) Establish appropriate provisions for employees of the State 
Regulatory Authority who perform any function or duty under the Act to 
file a statement and supplements thereto in order to identify any 
financial interest which may be affected by section 517(g), and
    (3) Report annually to the Congress the actions taken and not taken 
during the preceding calendar year under section 517(g) of the Act.
    (b) The Governor of the State, the Head of the State Regulatory 
Authority, or such other State official designated by State law, is 
authorized to expand the provisions in this part in order to meet the 
particular needs within the State.
    (c) The Office of Inspector General, U.S. Department of the 
Interior, is authorized to conduct on behalf of the Secretary periodic 
audits related to the provisions contained in section 517(g) of the Act 
and related to the provisions in this part. These audits will be 
conducted on a cyclical basis or upon request of the Secretary or the 
Director.

[42 FR 56060, Oct. 20, 1977, as amended at 56 FR 46987, Sept. 17, 1991]



Sec. 705.4  Responsibility.

    (a) The Head of each State Regulatory Authority shall;
    (1) Provide advice, assistance, and guidance to all State employees 
required to file statements pursuant to Sec. 705.11;

[[Page 39]]

    (2) Promptly review the statement of employment and financial 
interests and supplements, if any, filed by each employee, to determine 
if the employee has correctly identified those listed employment and 
financial interests which constitute a direct or indirect financial 
interest in an underground or surface coal mining operation;
    (3) Resolve prohibited financial interest situations by ordering or 
initiating remedial action or by reporting the violations to the 
Director who is responsible for initiating action to impose the 
penalties of the Act;
    (4) Certify on each statement that review has been made, that 
prohibited financial interests, if any, have been resolved, and that no 
other prohibited interests have been identified from the statement;
    (5) Submit to the Director such Statistics and information as he or 
she may request to enable preparation of the required annual report to 
Congress;
    (6) Submit to the Director the initial listing and the subsequent 
annual listings of positions as required by Sec. 705.11 (b), (c), and 
(d);
    (7) Furnish a blank statement 45 days in advance of the filing date 
established by Sec. 705.13(a) to each State employee required to file a 
statement; and
    (8) Inform annually each State employee required to file a statement 
with the Head of the State Regulatory Authority, or such other official 
designated by State law or regulation, of the name, address, and 
telephone number of the person whom they may contact for advice and 
counseling.
    (b) The Director, Office of Surface Mining Reclamation and 
Enforcement, shall:
    (1) Provide advice, assistance, and counseling to the Heads of all 
State Regulatory Authorities concerning implementation of these 
regulations;
    (2) Promptly review the statement of employment and financial 
interests and supplements, if any, filed by each Head of the State 
Regulatory Authority. The Director will review the statement to 
determine if the Head of the State Regulatory Authority has correctly 
identified those listed employment and financial interests which 
constitute a direct or indirect financial interest in an underground or 
surface coal mining operation;
    (3) Recommend to the State Attorney General, or such other State 
official designated by State law or the Governor of the State, the 
remedial action to be ordered or initiated, recommend to the Secretary 
that action be taken to impose the penalties of the Act, or recommend to 
the Secretary that other appropriate action be taken with respect to 
reimbursements, grants, or State programs;
    (4) Certify on each statement filed by the Head of the State 
Regulatory Authority that the State has completed the review of the 
statement, that prohibited financial interests have been resolved, and 
that no other prohibited interests have been identified from the 
statement;
    (5) Monitor the program by using reports requested from Heads of 
State Regulatory Authorities and by using periodic audits performed by 
the Office of Inspector General, U.S. Department of the Interior;
    (6) Prepare for the Secretary of the Interior a consolidated report 
to the Congress as part of the annual report submitted under section 706 
of the Act, on the actions taken and not taken during the preceding 
calendar year under section 517(g);
    (7) Designate if so desired other qualified Office of Surface Mining 
Reclamation and Enforcement employees as assistant counselors to assist 
with the operational duties associated with filing and reviewing the 
statements from the Heads of each State Regulatory Authority;
    (8) Furnish a blank statement by December 15 of each year, to the 
Head of each State Regulatory Authority; and
    (9) Inform annually, the head of each State Regulatory Authority of 
the requirement to file his or her statement with the Director and 
supply the name, address, and telephone number of the person whom they 
may contact for advice and counseling.
    (c) State Regulatory Authority employees performing any duties or 
functions under the Act shall:
    (1) Have no direct or indirect financial interest in coal mining 
operations;
    (2) File a fully completed statement of employment and financial 
interest

[[Page 40]]

120 days after these regulations become effective or upon entrance to 
duty, and annually thereafter on the specified filing date; and
    (3) Comply with directives issued by persons responsible for 
approving each statement and comply with directives issued by those 
persons responsible for ordering remedial action.
    (d) Members of advisory boards and commissions established in 
accordance with State laws or regulations to represent multiple 
interests, who perform a function or duty under the Act, shall recuse 
themselves from proceedings which may affect their direct or indirect 
financial interests.

[42 FR 56060, Oct. 20, 1977, as amended at 51 FR 37122, Oct. 17, 1986; 
56 FR 46987, Sept. 17, 1991]



Sec. 705.5  Definitions.

    Act. Means the Surface Mining Control and Reclamation Act of 1977, 
Pub. L. 95-87.
    Coal mining operation. Means the business of developing, producing, 
preparing or loading bituminous coal, subbituminous coal, anthracite, or 
lignite, or of reclaiming the areas upon which such activities occur.
    Direct financial interest. Means ownership or part ownership by an 
employee of lands, stocks, bonds, debentures, warrants, partnership 
shares, or other holdings and also means any other arrangement where the 
employee may benefit from his or her holding in or salary from coal 
mining operations. Direct financial interests include employment, 
pensions, creditor, real property and other financial relationships.
    Director. Means the Director or Acting Director of the Office of 
Surface Mining Reclamation and Enforcement within the U.S. Department of 
the Interior.
    Employee. Means (a) any person employed by the State Regulatory 
Authority who performs any function or duty under the Act, and (b) 
advisory board or commission members and consultants who perform any 
function or duty under the Act, if they perform decisionmaking functions 
for the State Regulatory Authority under the authority of State law or 
regulations. However, members of advisory boards or commissions 
established in accordance with State law or regulations to represent 
multiple interests are not considered to be employees. State officials 
may through State law or regulations expand this definition to meet 
their program needs.
    Indirect financial interest. Means the same financial relationships 
as for direct ownership, but where the employee reaps the benefits of 
such interests, including interests held by his or her spouse, minor 
child and other relatives, including in-laws, residing in the employee's 
home. The employee will not be deemed to have an indirect financial 
interest if there is no relationship between the employee's functions or 
duties and the coal mining operation in which the spouse, minor children 
or other resident relatives hold a financial interest.
    Office. Means the Office of Surface Mining Reclamation and 
Enforcement, U.S. Department of the Interior.
    Performing any function or duty under this Act. Means those 
decisions or actions, which if performed or not performed by an 
employee, affect the programs under the Act.
    Prohibited financial interest. Means any direct or indirect 
financial interest in any coal mining operation.
    Secretary. Means the Secretary of the Interior.
    State Regulatory Authority. Means that office in each State which 
has primary responsibility at the State level for administering this 
Act. Until an office is established under the provisions of section 503 
or section 504 of the Act, this term shall refer to those existing State 
offices having primary jurisdiction for regulating, enforcing, and 
inspecting any surface coal mining and reclamation operations within the 
State during the interim period between the effective date of the Act 
and the establishment of the State Regulatory Authority under section 
503 or section 504.



Sec. 705.6  Penalties.

    (a) Criminal penalties are imposed by section 517(g) of the Surface 
Mining Control and Reclamation Act of 1977, Pub. L. 95-87. Section 
517(g) prohibits each employee of the State Regulatory Authority who 
performs any function

[[Page 41]]

or duty under the Act from having a direct or indirect financial 
interest in any underground or surface coal mining operation. The Act 
provides that whoever knowingly violates the provisions of section 
517(g) shall, upon conviction, be punished by a fine of not more than 
$2,500, or by imprisonment of not more than one year, or by both.
    (b) Regulatory penalties are imposed by this part. The provisions in 
section 517(g) of the Act make compliance with the financial interest 
requirements a condition of employment for employees of the State 
Regulatory Authority who perform any functions or duties under the Act. 
Accordingly, an employee who fails to file the required statement will 
be considered in violation of the intended employment provisions of 
section 517(g) and will be subject to removal from his or her position.



Sec. 705.10  Information collection.

    The collections of information contained in Sec. Sec. 705.11 and 
705.17 have been approved by the Office of Management and Budget under 
44 U.S.C. 3501 et seq. and assigned clearance number 1029-0067. The 
information is being collected on OSM Form 23 and will be used to meet 
the requirements of section 517(g) of the Surface Mining Control and 
Reclamation Act of 1977, which provides that no employee of the State 
regulatory authority shall have direct or indirect financial interests 
in any underground or surface coal mining operation. This information 
will be used by officials of the state regulatory authority to determine 
whether each State employee complies with the financial interest 
provisions of section 517(g). The obligation to respond is mandatory in 
accordance with section 517(g). Public reporting burden for this 
information is estimated to average 20 minutes per response per state 
employee and 30 minutes per response per State regulatory authority, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding this 
burden estimate or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Information 
Collection Clearance Officer, Office of Surface Mining, 1951 
Constitution Avenue NW., room 5415-L, Washington, DC 20240; and the 
Office of Management and Budget, Paperwork Reduction Project 1029-0067, 
Washington, DC 20503.

[56 FR 46988, Sept. 17, 1991]



Sec. 705.11  Who shall file.

    (a) Any employee who performs any function or duty under the Act is 
required to file a statement of employment and financial interests. 
Members of advisory boards and commissions established in accordance 
with State laws or regulations to represent multiple interests, who 
perform a function or duty under the Act, must file a statement of 
employment and financial interests. An employee who occupies a position 
which has been determined by the Head of the State Regulatory Authority 
not to involve performance of any function or duty under the Act or who 
is no longer employed by the State Regulatory Authority at the time a 
filing is due, is not required to file a statement.
    (b) The Head of each State Regulatory Authority shall prepare a list 
of those positions within the State Regulatory Authority that do not 
involve performance of any functions or duties under the Act. State 
Regulatory Authorities may be organized to include more activities than 
are covered by the Act. For example, if a State has identified its 
Department of Natural Resources as the State Regulatory Authority there 
may be only one or two offices within that Department which have 
employees who perform any functions, or duties under the Act. In those 
cases, the Head of the State Regulatory Authority shall list the title 
of boards, offices, bureaus or divisions within the State Regulatory 
Authority which do not perform any functions or duties under the Act and 
list the positions not performing functions or duties under the Act for 
only those boards, offices, bureaus or divisions that do have some 
employees performing functions or duties under the Act. Only those 
employees who are employed in a listed organizational unit or who occupy 
a listed position will be exempted from the filing requirements of 
section 517(g) of the Act.

[[Page 42]]

    (c) The Head of each State Regulatory Authority shall prepare and 
submit to the director, an initial listing of positions that do not 
involve performance of any functions or duties under the Act within 60 
days of the effective date of these regulations.
    (d) The Head of each State Regulatory Authority shall annually 
review and update this listing. For monitoring and reporting reasons, 
the listing must be submitted to the Director and must contain a written 
justification for inclusion of the positions listed. Proposed revisions 
or a certification that revision is not required shall be submitted to 
the Director by no later than September 30 of each year. The Head of 
each State Regulatory Authority may revise the listing by the addition 
or deletion of positions at any time he or she determines such revisions 
are required to carry out the purpose of the law or the regulations of 
this part. Additions to and deletions from the listing of positions are 
effective upon notification to the incumbents of the positions added or 
deleted.
    (e) The Secretary or the Director may modify the listing at any time 
one or both of them determines that the listing submitted by the Head of 
a State Regulatory Authority indicates that coverage is not sufficient 
to carry out the purpose of the law or the regulations of this part.

[42 FR 56060, Oct. 20, 1977, as amended at 51 FR 37122, Oct. 17, 1986]



Sec. 705.13  When to file.

    (a) Employees and members of advisory boards and commissions 
representing multiple interests performing functions or duties under the 
Act shall file:
    (1) Within 120 days of the effective date of these regulations; and
    (2) Annually on February 1 of each year, or at such other date as 
may be agreed to by the Director, provided that such alternative date 
will allow sufficient time to obtain information needed by the Director 
for his or her annual report to the Congress.
    (b) New employees and new members of advisory boards and commissions 
representing multiple interest hired, appointed, or transferred to 
perform functions or duties under the Act will be required to file at 
the time of entrance to duty.
    (c) New employees and new members of advisory boards and commissions 
representing multiple interests are not required to file an annual 
statement on the subsequent annual filing date if this date occurs 
within two months after their initial statement was filed. For example, 
an employee entering duty on December 2, 1986 would file a statement on 
that date. Because December 2 is within two months of February 1 the 
employee would not be required to file his or her next annual statement 
until February 1, 1988.

[51 FR 37122, Oct. 17, 1986]



Sec. 705.15  Where to file.

    The head of the State Regulatory Authority shall file his or her 
statement with the Director. All other employees and members of advisory 
boards and commissions representing multiple interests, as provided in 
Sec. 705.11, shall file their statements with the head of the State 
Regulatory Authority or such other official as may be designated by 
State law or regulation.

[51 FR 37122, Oct. 17, 1986]



Sec. 705.17  What to report.

    (a) Each employee shall report all information required on the 
statement of employment and financial interests of the employee, his or 
her spouse, minor children, or other relatives who are fulltime 
residents of the employee's home. The report shall be on OSM Form 23 as 
provided by the Office. The statement consists of three major parts, (1) 
a listing of all financial interests, including employment, security, 
real property, creditor and other financial interests held during the 
course of the preceding year, (2) a certification that none of the 
listed financial interests represent a direct or indirect financial 
interest in an underground or surface coal mining operation except as 
specifically identified and described by the employee as part of the 
certificate and (3) a certification by the reviewer that the form was 
reviewed, that prohibited interests have been resolved, and that no 
other prohibited interests have been identified from the statement.

[[Page 43]]

    (b) Listing of all financial interests. The statement will set forth 
the following information regarding any financial interest:
    (1) Employment. Any continuing financial interests in business 
entities and nonprofit organizations through a pension or retirement 
plan, shared income, salary or other income arrangement as a result of 
prior or current employment. The employee, his or her spouse or other 
resident relative is not required to report a retirement plan from which 
he or she will receive a guaranteed income. A guaranteed income is one 
which is unlikely to be changed as a result of actions taken by the 
State Regulatory Authority.
    (2) Securities. Any financial interest in business entities and 
nonprofit organizations through ownership of stock, stock options, 
bonds, securities or other arrangements including trusts. An employee is 
not required to report mutual funds, investment clubs or regulated 
investment companies not specializing in underground and surface coal 
mining operations.
    (3) Real Property. Ownership, lease, royalty or other interests or 
rights in lands or minerals. Employees are not required to report lands 
developed and occupied for a personal residence.
    (4) Creditors. Debts owed to business entities and nonprofit 
organizations. Employees are not required to report debts owed to 
financial institutions (banks, savings and loan associations, credit 
unions, and the like) which are chartered to provide commercial or 
personal credit. Also excluded are charge accounts and similar short 
term debts for current and ordinary household and living expenses.
    (c) Employee certification, and, if applicable, a listing of 
exceptions.
    (1) The statement will provide for a signed certification by the 
employee that to the best of his or her knowledge, (i) none of the 
listed financial interests represent an interest in an underground or 
surface coal mining operation except as specifically identified and 
described as exceptions by the employee as part of the certificate, and 
(ii) the information shown on the statement is true, correct, and 
complete.
    (2) An employee is expected to (i) have complete knowledge of his or 
her personal involvement in business enterprises such as a sole 
proprietorship and partnership, his or her outside employment and the 
outside employment of the spouse and other covered relatives, and (ii) 
be aware of the information contained in the annual financial statement 
or other corporate or business reports routinely circulated to investors 
or routinely made available to the public.
    (3) The exceptions shown in the employee certification of the form 
must provide enough information for the Head of the State Regulatory 
Authority to determine the existence of a direct or indirect financial 
interest. Accordingly, the exceptions should:
    (i) List the financial interests;
    (ii) Show the number of shares, estimated value or annual income of 
the financial interests; and
    (iii) Include any other information which the employee believes 
should be considered in determining whether or not the interest 
represents a prohibited interest.
    (4) Employees are cautioned to give serious consideration to their 
direct and indirect financial interests before signing the statement of 
certification. Signing the certification without listing known 
prohibited financial interests may be cause for imposing the penalties 
prescribed in Sec. 705.6(a).

[42 FR 56060, Oct. 20, 1977, as amended at 56 FR 46988, Sept. 17, 1991]



Sec. 705.18  Gifts and gratuities.

    (a) Except as provided in paragraph (b) of this section, employees 
shall not solicit or accept, directly or indirectly, any gift, gratuity, 
favor, entertainment, loan or any other thing of monetary value, from a 
coal company which:
    (1) Conducts or is seeking to conduct, operations or activities that 
are regulated by the State Regulatory Authority; or
    (2) Has interests that may be substantially affected by the 
performance or non-performance of the employee's official duty.
    (b) The prohibitions in paragraph (a) of this section do not apply 
in the context of obvious family or personal relationships, such as 
those between the

[[Page 44]]

parents, children, or spouse of the employee and the employee, when the 
circumstances make it clear that it is those relationships rather than 
the business of the persons concerned which are the motivating factors. 
An employee may accept:
    (1) Food and refreshments of nominal value on infrequent occasions 
in the ordinary course of a luncheon, dinner, or other meeting where an 
employee may properly be in attendance; and
    (2) Unsolicited advertising or promotional material, such as pens, 
pencils, note pads, calendars and other items of nominal value.
    (c) Employees found guilty of violating the provisions of this 
section will be subject to administrative remedies in accordance with 
existing or adopted State regulations or policies.



Sec. 705.19  Resolving prohibited interests.

    (a) Actions to be taken by the Head of the State Regulatory 
Authority:
    (1) Remedial action to effect resolution. If an employee has a 
prohibited financial interest, the Head of the State Regulatory 
Authority shall promptly advise the employee that remedial action which 
will resolve the prohibited interest is required within 90 days.
    (2) Remedial action may include:
    (i) Reassignment of the employee to a position which performs no 
function or duty under the Act, or
    (ii) Divestiture of the prohibited financial interest, or
    (iii) Other appropriate action which either eliminates the 
prohibited interest or eliminates the situation which creates the 
conflict.
    (3) Reports of noncompliance. If 90 days after an employee is 
notified to take remedial action that employee is not in compliance with 
the requirements of the Act and these regulations, the Head of the State 
Regulatory Authority shall report the facts of the situation to the 
Director who shall determine whether action to impose the penalties 
prescribed by the Act should be initiated. The report to the Director 
shall include the original or a certified true copy of the employee's 
statement and any other information pertinent to the Director's 
determination, including a statement of actions being taken at the time 
the report is made.
    (b) Actions to be taken by the Director:
    (1) Remedial action to effect resolution. Violations of the 
regulations in this part of the Head of a State Regulatory Authority, 
will be cause for remedial action by the Governor of the State or other 
appropriate State official based on recommendations from the Director on 
behalf of the Secretary. The Governor or other appropriate State 
official shall promptly advise the Head of the State Regulatory 
Authority that remedial action which will resolve the prohibited 
interest is required within 90 days.
    (2) Remedial action should be consistent with the procedures 
prescribed for other State employees by Sec. 705.19(a)(2).
    (3) Reports on noncompliance.
    (i) If 90 days after the Head of State Regulatory Authority is 
notified to take remedial action the Governor or other appropriate State 
official notifies the Director that the Head of the State Regulatory 
Authority is not in compliance with the Act and these regulations, the 
Director shall report the facts of the situation to the Secretary who 
shall determine whether the action to impose the penalties prescribed by 
the Act, or to impose the eligibility restrictions prescribed by Sec. 
705.1 should be initiated.
    (ii) Within 30 days of receipt of a noncompliance report from the 
Head of a Regulatory Authority under Sec. 705.19(a)(3), the Director 
shall notify the Head of the State Regulatory Authority and the employee 
involved of additional action to be taken. Actions which the Director 
may take include but are not limited to the granting of additional time 
for resolution or the initiation of action to impose the penalties 
prescribed by the Act.



Sec. 705.21  Appeals procedures.

    Employees have the right to appeal an order for remedial action 
under Sec. 705.19, and shall have 30 days to exercise this right before 
disciplinary action is initiated.
    (a) Employees other than the Head of the State Regulatory Authority, 
may file their appeal, in writing, through established procedures within 
their particular State.

[[Page 45]]

    (b) The Head of the State Regulatory Authority may file his or her 
appeal, in writing, with the Director who will refer it to the Conflict 
of Interest Appeals Board within the U.S. Department of the Interior.



PART 706_RESTRICTION ON FINANCIAL INTERESTS OF FEDERAL EMPLOYEES--Table of 

Contents



Sec.
706.1 Purpose.
706.2 Objectives.
706.3 Definitions.
706.4 Authority.
706.5 Responsibility.
706.6 Penalties.
706.11 Who shall file.
706.13 When to file.
706.15 Where to file.
706.17 What to report.
706.18 Gifts and gratuities.
706.19 Resolving prohibited interests.
706.21 Appeals procedures.

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

    Source: 42 FR 56060, Oct. 20, 1977, unless otherwise noted.



Sec. 706.1  Purpose.

    This part sets forth the minimum policies and procedures to be 
followed by Federal employees to satisfy the requirements of section 
201(f) of the Act. The requirements of this part are in addition to 
Executive Order 11222 of May 8, 1965, and other applicable regulations 
related to conflict of interest. Section 201(f) prohibits certain 
Federal employees from having any direct or indirect financial interest 
in underground or surface coal mining operations. The regulations of 
this part are applicable to Federal employees as defined in Sec. 706.3.



Sec. 706.2  Objectives.

    The objectives of this part are:
    (a) To ensure that affected Federal agencies adopt a standard 
program for implementing the provisions in section 201(f) of the Act.
    (b) To establish methods which will ensure, as required by section 
201(f) of the Act, that each Federal employee who performs any function 
or duty under the Act does not have a direct or indirect financial 
interest in an underground or surface coal mining operation.
    (c) To establish the methods by which the monitoring, enforcing and 
reporting responsibilities of the Director and the Secretary of the 
Interior under section 201(f) will be accomplished.



Sec. 706.3  Definitions.

    Act. Means the Surface Mining Control and Reclamation Act of 1977, 
Pub. L. 95-87.
    Coal mining operation. Means the business of developing, producing, 
preparing or loading bituminous coal, subbituminous coal, anthracite or 
lignite or of reclaiming the areas upon which such activities occur.
    Direct financial interest. Means ownership or part ownership by an 
employee of lands, stocks, bonds, debentures, warrants, partnership 
shares, or other holdings and also means any other arrangement where the 
employee may benefit from his or her holding in or salary from coal 
mining operations. Direct financial interests include employment, 
pensions, creditor, real property and other financial relationships.
    Director. Means the Director or Acting Director of the Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior.
    Employee. Means any person employed by the Office of Surface Mining 
Reclamation and Enforcement within the U.S. Department of the Interior 
and any other person employed by the Federal Government who performs 
functions or duties under the Act without regard to the duration or 
nature of his or her appointment.
    Indirect financial interest. Means the same financial relationships 
as for direct ownership, but where the employee reaps the benefits of 
such interests, including interests held by his or her spouse, minor 
child and other relatives, including inlaws, residing in the employee's 
home. The employee will not be deemed to have an indirect financial 
interest if there is no relationship between the employee's functions or 
duties and the coal mining operation in which the spouse, minor children 
or other resident relatives hold a financial interest.
    Office. Means the Office of Surface Mining Reclamation and 
Enforcement, U.S. Department of the Interior.

[[Page 46]]

    Other Federal agency. Means any executive Federal agency or office 
or part thereof not a part of the U.S. Department of the Interior, and 
includes but is not limited to, the following agencies: The Department 
of Agriculture, the Department of Justice, the Corps of Engineers, the 
Environmental Protection Agency, the Council on Environmental Quality 
and the Energy Research and Development Administration.
    Performing any function or duty under this act. Means those 
decisions or actions, which if performed or not performed by an 
employee, affect the programs under the Act.
    Prohibited financial interest. Means any direct or indirect 
financial interest in any coal mining operation.
    Secretary. Means the Secretary of the Interior.



Sec. 706.4  Authority.

    (a) The Director is authorized by Pub. L. 95-87 to:
    (1) Establish the methods by which the provisions in section 201(f) 
of the Act will be monitored and enforced;
    (2) Establish appropriate provisions for all employees who perform 
any function or duty under the Act to file a statement and supplements 
thereto concerning their financial interests which may be affected by 
section 201(f); and
    (3) Report annually to the Congress on the actions taken and not 
taken during the preceding calendar year under section 201(f) of the 
Act.
    (b) Other Federal agencies with employees who perform functions or 
duties under the Act may adopt financial interest regulations pursuant 
to the Act which are consistent with the requirements in this part. If 
any such agency does not adopt regulations pursuant to this part, that 
agency shall enter into a memorandum of understanding with the Director, 
to have the employees of that agency who perform functions or duties 
under the Act file their statements with the Director. The Director will 
review statements filed with him or her, applying the regulations of the 
Department of the Interior. Where the Director determines that remedial 
action is necessary, he or she will refer the case to the employing 
agency with a recommendation as to the action to be taken.
    (c) The Office of Inspector General within the U.S. Department of 
the Interior, will conduct periodic audits of Interior's compliance with 
the provisions contained in section 201(f) of the Act and the provisions 
of this part. The Office of Inspector General will arrange for such 
periodic audits of other Federal agencies to be performed by the audit 
unit of each such agency. The audits will be conducted on a cyclical 
basis or upon request of the Secretary of the Interior or the Director. 
Copies of all audit reports and related responses on corrective actions 
will be provided to the Director.

[42 FR 56060, Oct. 20, 1977, as amended at 56 FR 46988, Sept. 17, 1991]



Sec. 706.5  Responsibility.

    (a) The Director, the Head of each other Federal agency, and the 
Head of each other bureau or office within the U.S. Department of the 
Interior, have the following common responsibilities concerning 
employees within their organizations performing any functions or duties 
under the Act, and shall:
    (1) Provide advice, assistance and counseling to employees 
concerning financial interest matters related to the Act;
    (2) Promptly review the statement of employment and financial 
interests and supplements, if any, filed by each employee to determine 
if the employee has correctly identified those listed employment and 
financial interests which constitute a direct or indirect financial 
interest in an underground or surface coal mining operation;
    (3) Certify on each statement that review has been made, that 
prohibited financial interests if any, have been resolved, and that no 
other prohibited interests have been identified from the statement;
    (4) Resolve prohibited financial interest situations by promptly 
notifying and ordering the employee to take remedial action within 90 
days, or by initiating action to impose the penalties of the Act;
    (5) Furnish a blank statement by December 15 of each year to each 
employee required to file a statement

[[Page 47]]

within his or her employing organization; and
    (6) Inform annually each employee required to file a statement 
within his or her employing organization of the name, address, and 
telephone number of the person whom they may contact for advice and 
counseling.
    (b) In addition to the common responsibilities in paragraph (a) of 
this section the Director shall:
    (1) Monitor the program by using reports requested from the Heads of 
other Federal agencies, from the Heads of other bureaus and offices 
within the U.S. Department of the Interior, and by using periodic audits 
performed by the Office of Inspector General, U.S. Department of the 
Interior and by other Federal agencies;
    (2) Prepare for the Secretary a consolidated report to the Congress 
as part of the annual report submitted under section 706 of the Act, on 
the actions taken and not taken during the preceding calendar year under 
section 201(f);
    (3) Refer recommendations to officials of other Federal agencies 
concerning those cases requiring remedial action for employees of the 
other Federal agency who filed with the Director because that other 
Federal agency did not choose to adopt its own financial interest 
regulations pursuant to the Act.
    (4) Report to the Solicitor, U.S. Department of the Interior, 
through the Office of Inspector General, U.S. Department of the 
Interior, cases of knowing violations of the provisions in section 
201(f). The Solicitor will transfer such reports to the U.S. Department 
of Justice.
    (5) Designate, if so desired, other qualified Office employees as 
assistant counselors to assist with the operational duties associated 
with filing and reviewing financial statements;
    (6) Furnish an adequate supply of blank statements to the Heads of 
those other Federal agencies which decide to have their employees file 
with the Director; and
    (7) Submit to the Department of the Interior Ethics Counselor such 
statistics and information he may request in accordance with 43 CFR 
20.735-17 as adopted.
    (c) In addition to the common responsibilities in paragraph (a) of 
this section, the Head of each other Federal agency with employees 
performing any functions or duties under the Act shall:
    (1) Decide whether to adopt independent procedures for the filing 
and review of financial statements or to enter into a memorandum of 
understanding with the Director that the U.S. Department of the Interior 
will provide and review the financial statements and recommend any 
necessary remedial action to the Head of the employing agency;
    (2) Submit to the Director such statistics and information the 
Director may request to enable preparation of the required annual report 
to the Congress, and to ensure uniform application of the provision in 
section 201(f) of the Act; and
    (3) Report to the Director and the U.S. Department of Justice cases 
of knowing violations of the provisions in section 201(f).
    (d) In addition to the common responsibilities in paragraph (a), the 
Heads of other bureaus or offices within the U.S. Department of the 
Interior with employees performing any functions or duties under the Act 
shall:
    (1) Submit to the Director such statistics and information the 
Director may request to enable preparation of the required annual report 
to Congress, and to ensure uniform application of provisions in section 
201(f) of the Act;
    (2) Submit to the Department of the Interior Ethics Counselor such 
statistics and information he may request in accordance with 43 CFR 
20.735-17 as adopted, and
    (3) Report to the Director cases of knowing violations of the 
provisions in section 201(f).
    (e) Employees shall:
    (1) Have no direct or indirect financial interests in coal mining 
operations;
    (2) File a fully completed statement of employment and financial 
interests 120 days after these regulations become effective or upon 
entrance to duty, and annually thereafter on the specified filing date, 
and
    (3) Comply with directives issued by persons responsible for 
approving each statement and comply with directives

[[Page 48]]

issued by those persons responsible for ordering remedial action.

[42 FR 56060, Oct. 20, 1977, as amended at 56 FR 46988, Sept. 19, 1991]



Sec. 706.6  Penalties.

    (a) Criminal penalties are imposed by section 201(f) of the Surface 
Mining Control and Reclamation Act of 1977, Pub. L. 95-87, which 
prohibits each employee of the Office or any other Federal employee who 
performs any function or duty under the Act from having a direct or 
indirect financial interest in underground or surface coal mining 
operations. The Act provides that whoever knowingly violates the 
provisions of section 201(f) shall, upon conviction, be punished by a 
fine of not more than $2,500, or by imprisonment for not more than one 
year, or both.
    (b) Regulatory penalties are imposed by this part. The provisions in 
section 201(f) of the Act make compliance with the financial interest 
requirements a condition of employment for all Office employees and for 
other Federal employees who perform any functions or duties under the 
Act. Accordingly, an employee who fails to file the required financial 
statement will be considered in violation of the intended employment 
provisions of section 201(f) and will be subject to removal from his or 
her position.



Sec. 706.11  Who shall file.

    (a) Every employee in the Office is required to file a statement of 
employment and financial interests.
    (b) Any other Federal employee who performs any function or duty 
under the Act is required to file a statement of employment and 
financial interests. The Head of each other Federal agency and the Heads 
of other bureaus and offices within the U.S. Department of the Interior 
shall prepare and submit a report within 60 days of the effective date 
of these regulations, either listing the Federal positions identified as 
performing functions or duties under the Act, or listing the 
organizational unit and showing the total number of employees within the 
unit who must file a statement. Revision to the listing or certification 
that revision is not required shall be submitted to the Director by no 
later than September 30 of each year. The Secretary, the Director, or 
the Heads of the other affected Federal organizations may revise the 
list by the addition or deletion of positions at any time such revisions 
are required to carry out the purpose of the law or regulations of this 
part. Additions to or deletions from the list of positions are effective 
upon notification to the incumbents.



Sec. 706.13  When to file.

    (a) Employees performing functions or duties under the Act will be 
required to file:
    (1) Within 120 days of the effective date of these regulations, and
    (2) Annually on February 1 of each year or at such other date as may 
be agreed to by the Director, provided that such alternative date will 
allow sufficient time to obtain information needed by the Director for 
his or her annual report to the Congress.
    (b) New employees hired, appointed, or transferred to perform 
functions or duties under the Act will be required to file at the time 
of entrance to duty.
    (c) New employees are not required to file an annual statement on 
the subsequent annual filing date if this date occurs within two months 
after their initial statement was filed. For example, an employee 
entering duty on December 1, 1978 would file a statement on that date. 
Because December 1 is within two months of February 1 the employee would 
not be required to file his or her next annual statement until February 
1, 1980.



Sec. 706.15  Where to file.

    (a) Each Office employee shall file his or her statement of 
employment and financial interests with the Director.
    (b) Each Department of the Interior employee, who is not an Office 
employee but does perform any function or duty under the Act, shall file 
a statement of employment and financial interests with his or her 
appropriate Ethics Counselor as identified in 43 CFR 20.735-22(c).
    (c) Each employee of another Federal agency who performs a function 
or duty under the Act shall file a statement of employment and financial 
interests with the official designated by the Head of the other Federal 
agency.

[[Page 49]]



Sec. 706.17  What to report.

    (a) Each employee shall report all information required on the 
statement of employment and financial interests of the employee, his or 
her spouse, minor children, or other relatives who are fulltime 
residents of the employee's home. The report shall be on a form provided 
by the Office or on a similar form adopted by another Federal agency. 
The statement shall consist of three major parts, (1) a listing of all 
financial interests, including employment, security, real property, 
creditor and other financial interests held during the course of the 
preceding year, (2) a certification that none of the listed financial 
interests represent a direct or indirect financial interest in an 
underground or surface coal mining operation except as specifically 
identified and described by the employee as part of the certificate, and 
(3) a certification by the reviewer that the form was reviewed, that 
prohibited interests have been resolved, and that no other prohibited 
interests have been identified from the statement.
    (b) Listing of all financial interests. The statement will set forth 
the following information regarding any financial interest:
    (1) Employment. Any continuing financial interests in business 
entities and nonprofit organizations through a pension or retirement 
plan, shared income, salary or other income arrangement as a result of 
prior or current employment. The employee, his or her spouse or other 
resident relative is not required to report a statement plan from which 
he or she will receive a guaranteed income. A guaranteed income is one 
which is unlikely to be changed as a result of actions taken by the 
Federal Government under the Act.
    (2) Securities. Any financial interest in business entities and 
nonprofit organizations through ownership of stock, stock options, 
bonds, securities or other arrangements including trusts. An employee is 
not required to report holdings in widely diversified mutual funds, 
investment clubs or regulated investment companies not specializing in 
underground and surface coal mining operations.
    (3) Real property. Ownership, lease, royalty or other interests or 
rights in lands or minerals. Employees are not required to report lands 
developed and occupied for a personal residence.
    (4) Creditors. Debts owed to business entities and nonprofit 
organizations. Employees are not required to report debts owed to 
financial institutions (banks, savings and loan associations, credit 
unions, and the like) which are chartered to provide commercial or 
personal credit. Also excluded are charge accounts and similar short 
term debts for current and ordinary household and living expenses.
    (c) Employee certification, and if applicable, a listing of 
exceptions.
    (1) The statement will provide for a signed certification by the 
employee that to the best of his or her knowledge, (i) none of the 
listed financial interests represent an interest in an underground or 
surface coal mining operation except as specifically identified and 
described as exceptions by the employee as part of the certificate, and 
(ii) the information shown on the statement is true, correct, and 
complete.
    (2) An employee is expected to (i) have complete knowledge of his or 
her personal involvement in business enterprises such as a sole 
proprietorship and partnership, his or her outside employment and the 
outside employment of the spouse and other covered relatives, and (ii) 
be aware of the information contained in the annual financial statements 
or other corporate or business reports routinely circulated to investors 
or routinely made available to the public.
    (3) The exceptions shown in the employee certification of the form 
must provide enough information for the Director, the Head of another 
Federal agency, or the Head of other bureaus or offices within the U.S. 
Department of the Interior to determine the existence of a direct or 
indirect financial interest. Accordingly, the exceptions should:
    (i) List the financial interests;
    (ii) Show the number of shares, estimated value or annual income of 
the financial interests; and
    (iii) Include any other information which the employee believes 
should be considered in determining whether or

[[Page 50]]

not the interest represents a prohibited interest.
    (4) Employees are cautioned to give serious consideration to their 
direct and indirect financial interests before signing the statement of 
certification. Signing the certification without listing known 
prohibited financial interests may be cause for imposing the penalties 
prescribed in Sec. 706.6(a).



Sec. 706.18  Gifts and gratuities.

    (a) Except as provided in paragraph (b) of this section, employees 
shall not solicit or accept, directly or indirectly, any gift, gratuity, 
favor, entertainment, loan, or any other thing of monetary value, from a 
coal company which:
    (1) Conducts or is seeking to conduct operations or activities that 
are regulated by the Federal Government; or
    (2) Has interests that may be substantially affected by the 
performance or nonperformance of the employee's official duty.
    (b) The prohibitions in paragraph (a) of this section do not apply 
in the context of obvious family or personal relationships, such as 
those between the parents, children, or spouse of the employee and the 
employee, when the circumstances make it clear that it is those 
relationships rather than the business of the persons concerned which 
are the motivating factors. An employee may accept:
    (1) Food and refreshments of nominal value on infrequent occasions 
in the ordinary course of a luncheon, dinner, or other meeting where an 
employee may properly be in attendance, and
    (2) Unsolicited advertising or promotional material, such as pens, 
pencils, note pads, calendars and other items of nominal value.
    (c) Employees found guilty of violating the provisions of this 
section will be subject to administrative remedies in accordance with 
existing Federal regulations or policies.



Sec. 706.19  Resolving prohibited interests.

    Actions to be taken by the Director, the heads of other Federal 
agencies, and the heads of other affected bureaus and offices within the 
U.S. Department of the Interior include:
    (a) Remedial action to effect resolution. If an employee has a 
prohibited financial interest, the head of the organizational entity 
(Department, bureau, office, etc.) where the employee works shall 
promptly advise the employee that remedial action which will resolve the 
prohibited interest is required within 90 days.
    (b) Remedial action may include: (1) Reassignment of the employee to 
a position which performs no function or duty under the Act, or
    (2) Divestiture of the prohibited financial interest, or
    (3) Other appropriate action which either eliminates the prohibited 
financial interest or eliminates the situation which creates the 
conflict.
    (c) Reports of noncompliance. If 90 days after an employee is 
notified to take remedial action that employee is not in compliance with 
the requirements of the Act and these regulations, the official, other 
than the Director, who ordered the remedial action shall promptly report 
the facts of the situation to the Director. The reports to the Director 
shall include the original or a certified true copy of the employee's 
statement and any other information pertinent to the Director, including 
a statement of actions being taken at the time the report is made. 
Within 30 days of receipt of a noncompliance report, the Director shall 
notify the head of the employing organization and the employee involved 
of additional action to be taken. Actions which the Director may take 
include but are not limited to the granting of additional time for 
resolution or the initiation of action to impose the penalties 
prescribed by the Act.



Sec. 706.21  Appeals procedures.

    Employees have the right to appeal an order for remedial action 
under Sec. 706.19 and shall have 30 days to exercise this right before 
disciplinary action is initiated.
    (a) Office employees and other Department of the Interior employees 
may file their appeal, in writing, in accordance with the provisions in 
43 CFR 20.735-25(b).
    (b) Employees of other Federal agencies may file their appeal, in 
writing,

[[Page 51]]

in accordance with the established procedures of their employing agency.



PART 707_EXEMPTION FOR COAL EXTRACTION INCIDENT TO GOVERNMENT-FINANCED HIGHWAY 

OR OTHER CONSTRUCTION--Table of Contents



Sec.
707.1 Scope.
707.4 Responsibility.
707.5 Definitions.
707.10 Information collection.
707.11 Applicability.
707.12 Information to be maintained on site.

    Authority: Secs. 102, 201, 501, and 528 of Pub. L. 95-87, 91 Stat. 
448, 449, 467, and 514 (30 U.S.C. 1202, 1211, 1251, 1278).

    Source: 44 FR 15322, Mar. 13, 1979, unless otherwise noted.



Sec. 707.1  Scope.

    (a) This part establishes the procedures for determining those 
surface coal mining and reclamation operations which are exempt from the 
Act and this chapter because the extraction of coal is an incidental 
part of Federal, State, or local government-financed highway or other 
construction.
    (b) This part exempts the extraction of coal which is incidental to 
government-financed construction from the requirements of the Act and 
this Chapter, if that extraction meets specified criteria which ensure 
that the construction is government-financed and that the extraction of 
coal is incidental to it.



Sec. 707.4  Responsibility.

    (a) The regulatory authority is responsible for enforcing the 
requirements of this part.
    (b) Any person conducting coal extraction as an incidental part of 
government-financed construction is responsible for possessing, on the 
site of the extraction operation, the documentation required by 30 CFR 
707.12.



Sec. 707.5  Definitions.

    As used in this part, the following terms have the specified 
meaning:
    Extraction of coal as an incidental part means the extraction of 
coal which is necessary to enable the construction to be accomplished. 
For purposes of this part, only that coal extracted from within the 
right-of-way, in the case of a road, railroad, utility line or other 
such construction, or within the boundaries of the area directly 
affected by other types of government-financed construction, may be 
considered incidental to that construction. Extraction of coal outside 
the right-of-way or boundary of the area directly affected by the 
construction shall be subject to the requirements of the Act and this 
chapter.
    Government financing agency means a Federal, State, county, 
municipal, or local unit of government, or a department, bureau, agency 
or office of the unit which, directly or through another unit of 
government, finances construction.
    Government-financed construction means construction funded at 50 
percent or more by funds appropriated from a government financing 
agency's budget or obtained from general revenue bonds. Government 
financing at less than 50 percent may qualify if the construction is 
undertaken as an approved reclamation project under Title IV of the Act. 
Construction funded through government financing agency guarantees, 
insurance, loans, funds obtained through industrial revenue bonds or 
their equivalent, or in-kind payments does not qualify as government-
financed construction.

[44 FR 15322, Mar. 13, 1979, as amended at 64 FR 7482, Feb. 12, 1999; 68 
FR 65625, Nov. 20, 2003]



Sec. 707.10  Information collection.

    Since the information collection requirement contained in 30 CFR 
707.12 consists only of expenditures on information collection 
activities that would be incurred by persons in the normal course of 
their activities, it is exempt from the requirements of the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.) and does not require clearance by 
OMB.

[64 FR 7482, Feb. 12, 1999]



Sec. 707.11  Applicability.

    (a) Coal extraction which is an incidental part of government-
financed construction is exempt from the Act and this chapter.

[[Page 52]]

    (b) Any person who conducts or intends to conduct coal extraction 
which does not satisfy paragraph (a) of this section shall not proceed 
until a permit has been obtained from the regulatory authority under a 
State, Federal or Federal lands program.



Sec. 707.12  Information to be maintained on site.

    Any person extracting coal incident to government-financed highway 
or other construction who extracts more than 250 tons of coal or affects 
more than two acres shall maintain, on the site of the extraction 
operation and available for inspection, documents which show--
    (a) A description of the construction project;
    (b) The exact location of the construction, right-of-way or the 
boundaries of the area which will be directly affected by the 
construction; and
    (c) The government agency which is providing the financing and the 
kind and amount of public financing, including the percentage of the 
entire construction costs represented by the government financing.

[[Page 53]]



                SUBCHAPTER B_INITIAL PROGRAM REGULATIONS



PART 710_INITIAL REGULATORY PROGRAM--Table of Contents



Sec.
710.1 Scope.
710.2 Objectives.
710.3 Authority.
710.4 Responsibility.
710.5 Definitions.
710.10 Information collection.
710.11 Applicability.
710.12 Special exemption for small operators.

    Authority: 30 U.S.C. 1201 et seq., as amended, and Pub. L. 100-34.

    Source: 42 FR 62677, Dec. 13, 1977, unless otherwise noted.



Sec. 710.1  Scope.

    (a) This part provides general introductory and applicability 
material for the initial regulatory program required by section 502 and 
other sections of the Act which require early implementation. The 
initial regulatory program is effective until permanent programs are 
approved in accordance with sections 503, 504, or 523 of the Act.
    (b) The initial regulatory program which this part introduces 
includes--
    (1) Environmental performance standards of parts 715 through 718 of 
this chapter.
    (2) Inspection and enforcement procedures of parts 720 through 723 
of this chapter; and
    (3) Reimbursements to States of part 725 of this chapter.



Sec. 710.2  Objectives.

    The objectives of the initial regulatory program are to--
    (a) Protect the health and safety of the public and minimize the 
damage to the environment resulting from surface coal mining operations 
during the interval between enactment of the Act and adoption of a 
permanent State or Federal regulatory program; and
    (b) Coordinate the State and Federal regulatory programs to 
accomplish the purposes of the Act.



Sec. 710.3  Authority.

    (a) The Secretary is directed to implement an initial regulatory 
program within six months after the date of enactment of the Act in each 
State which regulates any aspect of surface coal mining under one or 
more State laws until a State program has been approved or until a 
Federal program has been implemented.
    (b) The Secretary is also authorized to regulate surface coal mining 
and reclamation operations on Federal Lands by the Mineral Leasing Act 
of February 25, 1920, as amended (30 U.S.C. 181-287) and the Minerals, 
Leasing Act for Acquired Lands (30 U.S.C. 351-359) and on Indian lands 
by various Indian lands acts. Additional regulations under these Acts 
are in 30 CFR part 211,\1\ 43 CFR part 3041 and 25 CFR part 177.
---------------------------------------------------------------------------

    \1\ Editorial Note: 30 CFR part 211 was redesignated as 43 CFR part 
3480 at 48 FR 41589, Sept. 16, 1983.
---------------------------------------------------------------------------



Sec. 710.4  Responsibility.

    (a) Under the general direction of the Assistant Secretary, Energy 
and Minerals, the Director is responsible for administering the initial 
regulatory program established by the Secretary.
    (b) The States are responsible for issuing permits and inspection 
and enforcement on lands on which operations are regulated by a State to 
insure compliance with the initial performance standards in parts 715 
through 718 of this chapter. States are required to file copies of 
inspection reports with the Office. States are also responsible for 
assuring that permits are not issued which would be in conflict with the 
restriction on mining found in section 510 of the Act, particularly in 
regard to alluvial valley floors and prime farm lands, and section 
522(e) of the Act in regard to prohibitions of mining on certain lands.



Sec. 710.5  Definitions.

    As used throughout the initial regulatory program the following 
terms have the specified meanings unless otherwise indicated:
    Acid drainage means water with a pH of less than 6.0 discharged from 
active

[[Page 54]]

or abandoned mines and from areas affected by coal mining operations.
    Acid-forming materials means earth materials that contain sulfide 
mineral or other materials which, if exposed to air, water, or 
weathering processes, will cause acids that may create acid drainage.
    Alluvial valley floors means unconsolidated stream-laid deposits 
holding streams where water availability is sufficient for subirrigation 
or flood irrigation agricultural activities but does not include upland 
areas which are generally overlain by a thin veneer of colluvial 
deposits composed chiefly of debris from sheet erosion, deposits by 
unconcentrated runoff or slope wash, together with talus, other mass 
movement accumulation and windblown deposits.
    Approximate original contour means that surface configuration 
achieved by backfilling and grading of the mined area so that the 
reclaimed area, including any terracing or access roads, closely 
resembles the general surface configuration of the land prior to mining 
and blends into and complements the drainage pattern of the surrounding 
terrain, with all highwalls and spoil piles eliminated; water 
impoundments may be permitted where the regulatory authority determines 
that they are in compliance with Sec. 715.17.
    Aquifer means a zone, stratum, or group of strata that can store and 
transmit water in sufficient quantities for a specific use.
    Combustible material means organic material that is capable of 
burning either by fire or through a chemical process (oxidation) 
accompanied by the evolution of heat and a significant temperature rise.
    Compaction means the reduction of pore spaces among the particles of 
soil or rock, generally done by running heavy equipment over the earth 
materials.
    Disturbed area means those lands that have been affected by surface 
coal mining and reclamation operations.
    Diversion means a channel, embankment, or other manmade structure 
constructed for the purpose of diverting water from one area to another.
    Downslope means the land surface between a valley floor and the 
projected outcrop of the lowest coalbed being mined along each highwall.
    Embankment means an artificial deposit of material that is raised 
above the natural surface of the land and used to contain, divert, or 
store water, support roads or railways, or other similar purposes.
    Essential hydrologic functions means, with respect to alluvial 
valley floors, the role of the valley floor in collecting, storing, and 
regulating the natural flow of surface water and ground water, and in 
providing a place for irrigated and subirrigated farming, by reason of 
its position in the landscape and the characteristics of its underlying 
material.
    Flood irrigation means irrigation through natural overflow or the 
temporary diversion of high flows in which the entire surface of the 
soil is covered by a sheet of water.
    Ground water means subsurface water that fills available openings in 
rock or soil materials such that they may be considered water-saturated.
    Head-of-hollow fill means a fill structure consisting of any 
material, other than coal processing waste and organic material, placed 
in the uppermost reaches of a hollow where side slopes of the fill 
measured at the steepest point are greater that 20[deg] or the profile 
of the hollow from the toe of the fill to the top of the fill is greater 
than 10[deg]. In fills with less than 250.00 cubic yards of material, 
associated with contour mining, the top surface of the fill will be at 
the elevation of the coal seam. In all other head-of-hollow fills, the 
top surface of the fill, when completed, is at approximately the same 
elevation as the adjacent ridge line, and no significant area of natural 
drainage occurs above the fill draining into the fill area.
    Highwall means the face of exposed overburden and coal in an open 
cut of a surface or for entry to an underground coal mine.
    Hydrologic balance means the relationship between the quality and 
quantity of inflow to, outflow from, and storage in a hydrologic unit 
such as a drainage basin, aquifer, soil zone, lake,

[[Page 55]]

or reservoir. It encompasses the quantity and quality relationships 
between precipitation, runoff, evaporation, and the change in ground and 
surface water storage.
    Hydrologic regime means the entire state of water movement in a 
given area. It is a function of the climate, and includes the phenomena 
by which water first occurs as atmospheric water vapor, passes into a 
liquid or solid form and falls as precipitation, moves thence along or 
into the ground surface, and returns to the atmosphere a vapor by means 
of evaporation and transpiration.
    Impoundment means a closed basin formed naturally or artificially 
built, which is dammed or excavated for the retention of water, 
sediment, or waste.
    Intermittent or perennial stream means a stream or part of a stream 
that flows continuously during all (perennial) or for at least one month 
(intermittent) of the calendar year as a result of ground-water 
discharge or surface runoff. The term does not include an ephemeral 
stream which is one that flows for less than one month of a calendar 
year and only in direct response to precipitation in the immediate 
watershed and whose channel bottom is always above the local water 
table.
    Leachate means a liquid that has percolated through soil, rock, or 
waste and has extracted dissolved or suspended materials.
    Noxious plants means species that have been included on official 
State lists of noxious plants for the State in which the operation 
occurs.
    Overburden means material of any nature, consolidated or 
unconsolidated, that overlies a coal deposit, excluding topsoil.
    Outslope means the exposed area sloping away from a bench or terrace 
being constructed as a part of a surface coal mining and reclamation 
operation.
    Productivity means the vegetative yield produced by a unit area for 
a unit of time.
    Recharge capacity means the ability of the soils and underlying 
materials to allow precipitation and runoff to infiltrate and reach the 
zone of saturation.
    Roads means access and haul roads constructed, used, reconstructed, 
improved, or maintained for use in surface coal mining and reclamation 
operations, including use by coal-hauling vehicles leading to transfer, 
processing, or storage areas. The term includes any such road used and 
not graded to approximate original contour within 45 days of 
construction other than temporary roads used for topsoil removal and 
coal haulage roads within the pit area. Roads maintained with public 
funds such as all Federal, State, county, or local roads are excluded.
    Recurrence interval means the precipitation event expected to occur, 
on the average, once in a specified interval. For example, the 10-year 
24-hour precipitation event would be that 24-hour precipitation event 
expected to be exceeded on the average once in 10 years. Magnitude of 
such events are as defined by the National Weather Service Technical 
Paper No. 40, ``Rainfall Frequency Atlas of the U.S.,'' May 1961, and 
subsequent amendments or equivalent regional or rainfall probability 
information developed therefrom.
    Runoff means precipitation that flows overland before entering a 
defined stream channel and becoming streamflow.
    Safety factor means the ratio of the available shear strength to the 
developed shear stress on a potential surface of sliding determined by 
accepted engineering practice.
    Sediment means undissolved organic and inorganic material 
transported or deposited by water.
    Sedimentation pond means any natural or artifical structure or 
depression used to remove sediment from water and store sediment or 
other debris.
    Slope means average inclination of a surface, measured from the 
horizontal. Normally expressed as a unit of vertical distance to a given 
number of units of horizontal distance (e.g., 1v to 5h=20 percent=11.3 
degrees).
    Soil horizons means contrasting layers of soil lying one below the 
other, parallel or nearly parallel to the land surface. Soil horizons 
are differentiated on the basis of field characteristics and laboratory 
data. The three major soil horizons are--
    (a) A horizon. The uppermost layer in the soil profile often called 
the surface soil. It is the part of the soil in which organic matter is 
most abundant, and

[[Page 56]]

where leaching of soluble or suspended particles is the greatest.
    (b) B horizon. The layer immediately beneath the A horizon and often 
called the subsoil. This middle layer commonly contains more clay, iron, 
or aluminum than the A or C horizons.
    (c) C horizon. The deepest layer of the soil profile. It consists of 
loose material or weathered rock that is relatively unaffected by 
biologic activity.
    Spoil means overburden that has been removed during surface mining.
    Stabilize means any method used to control movement of soil, spoil 
piles, or areas of disturbed earth and includes increasing bearing 
capacity, increasing shear strength, draining, compacting, or 
revegetating.
    Subirrigation means irrigation of plants with water delivered to the 
roots from underneath.
    Surface water means water, either flowing or standing, on the 
surface of the earth.
    Suspended solids means organic or inorganic materials carried or 
held in suspension in water that will remain on a 0.45 micron filter.
    Toxic-forming materials means earth materials or wastes which, if 
acted upon by air, water, weathering, or microbiological processes, are 
likely to produce chemical or physical conditions in soils or water that 
are detrimental to biota or uses of water.
    Toxic-mine drainage means water that is discharged from active or 
abandoned mines and other areas affected by coal mining operations and 
which contains a substance which through chemical action or physical 
effects is likely to kill, injure, or impair biota commonly present in 
the area that might be exposed to it.
    Valley fill means a fill structure consisting of any material other 
than coal waste and organic material that is placed in a valley where 
side slopes of the fill measured at the steepest point are greater than 
20[deg] or the profile of the hollow from the toe of the fill to the top 
of the fill is greater than 10[deg].
    Waste means earth materials, which are combustible, physically 
unstable, or acid-forming or toxic-forming, wasted or otherwise 
separated from product coal and are slurried or otherwise transported 
from coal processing facilities or preparation plants after physical or 
chemical processing, cleaning, or concentrating of coal.
    Water table means upper surface of a zone of saturation, where the 
body of ground water is not confined by an overlying impermeable zone.

[42 FR 62677, Dec. 13, 1977, as amended at 44 FR 30628, May 25, 1979]



Sec. 710.10  Information collection.

    The collections of information contained in Sec. Sec. 710.4, 
710.11, and 710.12 have been approved by the Office of Management and 
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1029-
0095. The information will be used in administering the Initial 
Regulatory Program. Response is required to obtain a benefit in 
accordance with 30 U.S.C. 1201 et seq. Public reporting burden for this 
collection of information is estimated to average one hour per response, 
including the time for reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. Send comments regarding this 
burden estimate or any other aspect of this collection of information, 
including suggestions for reducing the burden, to Information Collection 
Clearance Officer, OSM, Department of the Interior, 1951 Constitution 
Avenue, NW., Washington, DC 20240; and to the Office of Management and 
Budget, Paperwork Reduction Project (1029-0095), OMB, Washington, DC 
20503.

[56 FR 6227, Feb. 14, 1991]



Sec. 710.11  Applicability.

    (a) Operations on lands on which such operations are regulated by a 
State. (1) The requirements of the initial regulatory program do not 
apply to surface mining and reclamation operations which occur on lands 
within a State which does not regulate any part of such operations.
    (2) General obligations. (i) A person conducting coal mining 
operations shall have a permit if required by the State in which he is 
mining and shall comply with State laws and regulations that are not 
inconsistent with the Act and this chapter.

[[Page 57]]

    (ii) A person conducting coal mining operations shall not engage in 
any operations which result in a condition or constitute a practice that 
creates an imminent danger to the health or safety of the public.
    (iii) A person conducting coal mining operations shall not engage in 
any operations which result in a condition or constitute a practice that 
causes or can reasonably be expected to cause significant, imminent 
environmental harm to land, air, or water resources.
    (3) Performance standards obligations. (i) A person who conducts any 
coal mining operations under an initial permit issued by a State on or 
after February 3, 1978, shall comply with the requirements of the 
initial regulatory program. Such permits shall contain terms that comply 
with the relevant performance standards of the initial regulatory 
program.
    (ii) On and after May 3, 1978, any person conducting coal mining 
operations shall comply with the initial regulatory program, except as 
provided in Sec. 710.12 of this part.
    (iii) A person shall comply with the obligations of this section 
until he has received a permit to operate under a permanent State or 
Federal regulatory program.
    (b) Operations on Indian lands. Any person who conducts surface coal 
mining and reclamation operations on Indian lands on or after December 
16, 1977, in accordance with section 750.11(c) of this chapter, or who 
was otherwise subject to 25 CFR part 216, subpart B prior to September 
22, 1994; shall comply with the performance standards of this 
subchapter.
    (c) Operations on Federal lands. (1) A person conducting coal mining 
operations on Federal lands under a permit approved on or after February 
3, 1978, shall comply with the performance standards of this chapter.
    (2) Any person conducting coal mining operations on Federal lands on 
and after May 3, 1978, shall comply with the performance standards of 
this chapter.
    (d) Operations on all lands. (1) The requirements of this chapter 
apply to operations conducted after the effective date of these 
regulations on lands from which the coal has not yet been removed and to 
any other lands used, disturbed, or redisturbed in connection with or to 
facilitate mining or to comply with the requirements of the Act or these 
regulations.
    (2) Any pre-existing, nonconforming structure or facility which is 
used in connection with or to facilitate mining after the effective date 
of these regulations shall comply with the requirements of the 
regulations, unless--
    (i) The permittee submits to the regulatory authority by March 1, 
1978, a statement in writing demonstrating that it is physically 
impossible to bring the structure or facility into compliance by May 4, 
1978. The statement shall include the steps to be taken to reconstruct 
the structure or facility in conformance with applicable performance 
standards and a schedule for reconstruction including the estimated date 
of completion;
    (ii) The regulatory authority finds in writing that it is physically 
impossible to bring the structure or facility into compliance by May 4, 
1978;
    (iii) The construction work is to be performed in accordance with 
plans designed by a professional engineer; and
    (iv) The construction work is to be started and completed as soon as 
possible and in no event is to be started later than May 4, 1978 and 
completed later than November 4, 1978.
    (3) Notwithstanding paragraph (d)(2) of this section, any 
sedimentation pond, or related pre-existing, non-conforming structure or 
facility which is used in connection with or to facilitate mining after 
the effective date of these regulations shall comply with the 
requirements of the regulations unless--
    (i) The permittee submits to the regulatory authority and to the 
Director by May 3, 1978, a statement in writing demonstrating that it is 
physically impossible to bring the structure or facility into compliance 
by May 3, 1978. The statement shall include the steps to be taken to 
reconstruct the structure or facility in conformance with applicable 
performance standards and a schedule for reconstruction including the 
estimated date of completion;
    (ii) The regulatory authority finds in writing that it is physically 
impossible to bring the structure or facility into compliance by May 3, 
1978;

[[Page 58]]

    (iii) The construction work is to be performed in accordance with 
plans designed by a professional engineer;
    (iv) The construction work is to be started and completed as soon as 
possible and in no event is to be started later than June 3, 1978 and 
completed later than November 4, 1978; and
    (v) The Director approves of any schedules which contain an 
estimated date of completion beyond October 3, 1978.
    (4) The Director shall be deemed to have approved such schedules 
referred to in paragraph (d)(3)(v) of this section, unless written 
disapproval is received by the operator on or before June 3, 1978.
    (e) Satisfying Permanent Program Performance Standards in lieu of 
Initial Program Performance Standards. Where there is a counterpart 
Permanent Program performance standard in subchapter K of this chapter 
that corresponds to an Initial Program performance standard in 
subchapter B of this chapter, meeting either performance standard will 
satisfy the requirements of subchapter B of this chapter.

[42 FR 62677, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978, as amended at 43 
FR 5001, Feb. 7, 1978; 43 FR 8091, Feb. 27, 1978; 49 FR 38477, Sept. 28, 
1984; 56 FR 6227, Feb. 14, 1991; 59 FR 43419, Aug. 23, 1994]



Sec. 710.12  Special exemption for small operators.

    (a) As used in this section--
    (1) Permittee means a person holding a permit under State law and to 
whom the permit was originally issued.
    (2) Renewed permit means any extension of the original area of 
duration of a permit.
    (b) If a person is an eligible permittee under paragraph (c) of this 
section and intends to conduct surface coal mining operations on or 
after May 3, 1978, that permittee may receive from the Director a 
limited exemption from the performance standards of this chapter. The 
exemption shall not--
    (1) Include the Special Performance Standard of Sec. 716.2(a)(1) of 
this chapter regarding the handling of spoil;
    (2) Apply to surface coal mining operations to be conducted under a 
permit or renewed permit issued on or after August 3, 1977;
    (3) Include any general or special performance standard with which a 
permittee is required to comply by a State;
    (4) Relieve the permittee of the general obligations imposed by 
Sec. 710.11(a) of this part regarding conditions or practices creating 
imminent danger or causing significant, imminent environmental harm; or
    (5) Relieve the permittee of any obligations under State law, 
regulation or permit.
    (c) A permittee is eligible for an exemption under this section--
    (1) If the actual and attributed production of that permittee is 
estimated by the Director not to exceed 100,000 tons of coal during the 
year ending on December 31, 1978; and
    (2) If that permittee--
    (i) Was in existence on July 31, 1976, and during the year ending on 
July 31, 1977, the actual and attributed production of that permittee 
was 100,000 tons of coal or less from all surface and underground coal 
mining operations; or
    (ii) Came into existence after July 31, 1976, and prior to May 2, 
1977, and the actual and attributed production from all surface and 
underground coal mining operations of that permittee in the average 
calendar month was an amount of coal which when multiplied by 12 yields 
a product of 100,000 tons or less.
    (iii) And, in the case of a business organization, has not undergone 
a substantial change in ownership since May 2, 1977, other than a 
substantial change due to the death of an owner.
    (d) Application for an exemption under this section shall be 
submitted to the Director of the Office by March 1, 1978 with a copy to 
the State regulatory authority.
    (e) The request for exemption shall be in the form of an affidavit 
under oath and shall include--
    (1) The name and address of the permittee and of persons who control 
the permittee by reason of stock ownership or otherwise.
    (2) The name, location, Mining Enforcement and Safety Administration 
identification numbers, and permit numbers of the surface coal mining 
operations for which exemption is sought, including a statement of the 
dates each

[[Page 59]]

permit was issued or renewed and will expire.
    (3) The date and method by which the permittee was created if the 
permittee is not an individual.
    (4) A listing of all surface and underground coal mining operations 
showing--
    (i) Actual production for the year ending July 31, 1977, attributed 
to the permittee and the inclusive dates of operation.
    (ii) Estimated production for the year ending December 31, 1978, 
attributed to the permittee and the anticipated dates of operation.
    (5) A copy of coal severance tax returns for coal produced during 
the year ending on July 31, 1977.
    (6) A copy of a notice the permittee has published in a local 
newspaper of general circulation in the area of each mine for which an 
exemption is sought once a week for two weeks stating--
    (i) That an application for a small operator exemption will be 
filed, which if granted would exempt the operator from certain 
environmental protection performance standards in the Act;
    (ii) The name and address of the permittee;
    (iii) The location of the surface coal mining operations to which 
the exemption will apply; and
    (iv) That public comments may be submitted to the Director, Office 
of Surface Mining Reclamation and Enforcement.
    (f) Production from the following operations shall be attributed to 
the permittee--
    (1) All coal produced by operations beneficially owned entirely by 
the permittee, or controlled by reasons of ownership, direction of the 
management, or in any other manner by the permittee.
    (2) The pro rata share, based upon percentage of beneficial 
ownership, of coal produced by operations in which the permittee owns 
more than a 5-percent interest.
    (3) All coal produced by persons who own more than 5 percent of the 
permittee or who directly or indirectly control the permittee by reason 
of stock ownership, direction of the management or in any other manner.
    (4) The pro rata share of coal produced by operations owned or 
controlled by the person who owns or controls the permittee.
    (g) The Director shall grant the request for an exemption if, upon 
the basis of the request and any State regulatory authority or public 
comments, or any other information, he finds that--
    (1) The permittee has satisfied his burden of proof by demonstrating 
eligibility for the exemption; and
    (2) The exemption will not be inconsistent with State law, 
regulation or permit terms.
    (h) Any person aggrieved by the decision of the Director under this 
section may appeal within 20 days from receipt of that decision to The 
Office of Hearing and Appeals under 43 CFR part 4. The Office of 
Hearings and Appeals and the Secretary shall have the authority to stay 
the exemption pending the outcome of the appeal.
    (i) The exemption shall be effective on the date approved. It shall 
remain in effect until expiration or renewal of the State permit to 
which it applies, December 31, 1978, or until revoked, whichever is 
earlier.
    (j) The Director shall revoke the exemption upon finding that the 
exemption was erroneously issued or that the exempted operation has or 
will produce more than 100,000 tons of coal per year.

[42 FR 62677, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978, as amended at 43 
FR 5001, Feb. 7, 1978]



PART 715_GENERAL PERFORMANCE STANDARDS--Table of Contents



Sec.
715.10 Information collection.
715.11 General obligations.
715.12 Signs and markers.
715.13 Postmining use of land.
715.14 Backfilling and grading.
715.15 Disposal of excess spoil.
715.16 Topsoil handling.
715.17 Protection of the hydrologic system.
715.18 Dams constructed of or impounding waste material.
715.19 Use of explosives.
715.20 Revegetation.
715.200 Interpretative rules related to general performance standards.

    Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.).

[[Page 60]]


    Source: 42 FR 62680, Dec. 13, 1977, unless otherwise noted.



Sec. 715.10  Information collection.

    The information collection requirements contained in 30 CFR 
715.13(d); 715.17 (b)(1)(v) and (j)(3); 715.18(b) (2) and (6); and 
715.19 (b), (c), (d) and (e)(4) have been approved by the Office of 
Management and Budget under 44 U.S.C. 3507 and assigned clearance number 
1029-0007. The information is being collected to meet the performance 
standards in section 515(b)(2) of P.L. 95-87 and are applicable during 
the initial regulatory program. This information will be used by OSM in 
measuring compliance with the performance standards until permanent 
programs are in effect in the States. The obligation to respond is 
mandatory.

[47 FR 33685, Aug. 4, 1982]



Sec. 715.11  General obligations.

    (a) Compliance. All surface coal mining and reclamation operations 
conducted on lands where any element of the operations is regulated by a 
State shall comply with the initial performance standards of this part 
according to the time schedule specified in Sec. 710.11. part 717 of 
this chapter establishes performance standards for surface effects of 
underground coal mines. Initial regulations regarding the special 
Initial Performance Standards are established by part 716 of this 
chapter for--
    (1) Surface coal mining operations on steep slopes;
    (2) Surface coal mining operations involving mountaintop removal;
    (3) Special bituminous coal mines;
    (4) Anthracite surface coal mining operations;
    (5) Surface coal mining operations in Alaska; and
    (6) Surface coal mining operations on prime farmlands.

Where State environmental protection standards are adopted for a 
specific State because they are more stringent than the standards of 
parts 715, 716, and 717, they will be published in part 718 of this 
chapter.
    (b) Authorizations to operate. A copy of all current permits, 
licenses, approved plans, or other authorizations to operate the mine 
shall be available for inspection at or near the mine site.
    (c)(1) Mine maps. Any person conducting surface coal mining and 
reclamation operations on and after May 3, 1978, shall submit two copies 
of an accurate map of the mine and permit area at a scale of 1:6000 or 
larger. The map shall show as of May 3, 1978, the lands from which coal 
has not yet been removed and the lands and structures which have been 
used or disturbed to facilitate mining. One copy of the mine map shall 
be submitted to the State regulatory authority and one copy shall be 
submitted to the Regional Director, OSM, before July 3, 1978.
    (2) In addition to the requirements of paragraph (c)(1) of this 
section, any person who conducted surface coal mining and reclamation 
operations pursuant to a small operator's exemption shall submit before 
March 15, 1979, two copies of an accurate map of each mine showing the 
permit area at a scale of 1:6000 or larger. One copy shall be submitted 
to the state regulatory authority and one copy to the appropriate 
Regional Director, OSM. The map shall show as of December 31, 1978 or 
the expiration date of the exemption (whichever is earlier) the lands 
from which coal had not yet been removed, the lands and structures which 
had been used or disturbed to facilitate mining, and the lands which had 
not been disturbed. The map need not be submitted if these areas have 
already been shown on mine maps submitted to the state regulatory 
authority, if a copy is available to the appropriate Regional Director 
pursuant to paragraph (c)(1) of this section or 30 CFR 720.13(b).
    (d) Indian lands--(1) Mine maps. Any person conducting surface coal 
mining and reclamation operations on Indian lands under this part shall 
submit no fewer than 7 copies of an accurate map of the mine and 
authorized mining areas at a scale of 1:6000 or larger. The map shall 
show, as of December 16, 1977, the lands where coal has not yet been 
removed and the lands and structures that have been used or disturbed to 
facilitate surface coal mining operations.
    (2) Consultation with tribal governments. Any requirement in this 
part for consultation with or notification to

[[Page 61]]

State and local governments shall be interpreted as requiring, in like 
manner, consultation with or notification to tribal governments. OSM 
shall consult with the Bureau of Indian Affairs with respect to special 
requirements relating to the protection of noncoal resources and with 
the Bureau of Land Management with respect to the requirements relating 
to the development, production, and recovery of mineral resources on 
Indian lands.

[42 FR 62680, Dec. 13, 1977, as amended at 44 FR 6682, Feb. 1, 1979; 59 
FR 43419, Aug. 23, 1994]



Sec. 715.12  Signs and markers.

    (a) Specifications. All signs required to be posted shall be of a 
standard design that can be seen and read easily and shall be made of 
durable material. The signs and other markers shall be maintained during 
all operations to which they pertain and shall conform to local 
ordinances and codes.
    (b) Mine and permit identification signs. Signs identifying the mine 
area shall be displayed at all points of access to the permit area from 
public roads and highways. Signs shall show the name, business address, 
and telephone number of the permittee and identification numbers of 
current mining and reclamation permits or other authorizations to 
operate. Such signs shall not be removed until after release of all 
bonds.
    (c) Perimeter markers. The perimeter of the permit area shall be 
clearly marked by durable and easily recognized markers, or by other 
means approved by the regulatory authority.
    (d) Buffer zone markers. Buffer zones as defined in Sec. 715.17 
shall be marked in a manner consistent with the perimeter markers along 
the interior boundary of the buffer zone.
    (e) Blasting signs. If blasting is necessary to conduct surface coal 
mining operations, signs reading ``Blasting Area'' shall be displayed 
conspicuously at the edge of blasting areas along access and haul roads 
within the mine property. Signs reading ``Blasting Area'' and explaining 
the blasting warning and all-clear signals shall be posted at all 
entrances to the permit area.
    (f) Topsoil markers. Where topsoil or other vegetation-supporting 
material is segregated and stockpiled according to Sec. 715.16(c), the 
stockpiled material shall be marked. Markers shall remain in place until 
the material is removed.



Sec. 715.13  Postmining use of land.

    (a) General. All disturbed areas shall be restored in a timely 
manner (1) to conditions that are capable of supporting the uses which 
they were capable of supporting before any mining, or (2) to higher or 
better uses achievable under criteria and procedures of paragraph (d) of 
this section.
    (b) Determining premining use of land. The premining uses of land to 
which the postmining land use is compared shall be those uses which the 
land previously supported if the land had not been previously mined and 
had been properly managed.
    (1) The postmining land use for land that has been previously mined 
and not reclaimed shall be judged on the basis of the highest and best 
use that can be achieved and is compatible with surrounding areas.
    (2) The postmining land use for land that has received improper 
management shall be judged on the basis of the premining use of 
surrounding lands that have received proper management.
    (3) If the premining use of the land was changed within 5 years of 
the beginning of mining, the comparison of postmining use to premining 
use shall include a comparison with the historic use of the land as well 
as its use immediately preceding mining.
    (c) Land-use categories. Land use is categorized in the following 
groups. Change from one to another land use category in premining to 
postmining constitutes an alternate land use and the permittee shall 
meet the requirements of paragraph (d) of this section and all other 
applicable environmental protection performance standards of this 
chapter.
    (1) Heavy industry. Manufacturing facilities, powerplants, airports 
or similar facilities.
    (2) Light industry and commercial services. Office buildings, 
stores, parking facilities, apartment housed, motels, hotels, or similar 
facilities.

[[Page 62]]

    (3) Public services. Schools, hospitals, churches, libraries, water-
treatment facilities, solid-waste disposal facilities, public parks and 
recreation facilities, major transmission lines, major pipelines, 
highways, underground and surface utilities, and other servicing 
structures and appurtenances.
    (4) Residential. Single- and multiple-family housing (other than 
apartment houses) with necessary support facilities. Support facilities 
may include commercial services incorporated in and comprising less than 
5 percent of the total land area of housing capacity, associated open 
space, and minor vehicle parking and recreation facilities supporting 
the housing.
    (5) Cropland. Land used primarily for the production of cultivated 
and close-growing crops for harvest alone or in association with sod 
crops. Land used for facilities in support of farming operations are 
included.
    (6) Rangeland. Includes rangelands and forest lands which support a 
cover of herbaceous or scrubby vegetation suitable for grazing or 
browsing use.
    (7) Hayland or pasture. Land used primarily for the long-term 
production of adapted, domesticated forage plants to be grazed by 
livestock or cut and cured for livestock feed.
    (8) Forest land. Land with at least a 25 percent tree canopy or land 
at least 10 percent stocked by forest trees of any size, including land 
formerly having had such tree cover and that will be naturally or 
artificially reforested.
    (9) Impoundments of water. Land used for storing water for 
beneficial uses such as stock ponds, irrigation, fire protection, 
recreation, or water supply.
    (10) Fish and wildlife habitat and recreation lands. Wetlands, fish 
and wildlife habitat, and areas managed primarily for fish and wildlife 
or recreation.
    (11) Combined uses. Any appropriate combination of land uses where 
one land use is designated as the primary land use and one or more other 
land uses are designated as secondary land uses.
    (d) Criteria for approving alternative postmining use of land. An 
alternative postmining land use shall be approved by the regulatory 
authority, after consultation with the landowner or the land-management 
agency having jurisdiction over State or Federal lands, if the following 
criteria are met. Proposals to remove an entire coal seam running 
through the upper part of a mountain, ridge, or hill must also meet 
these criteria in addition to the requirements of Sec. 716.3 of this 
chapter.
    (1) The proposed land use is compatible with adjacent land use and, 
where applicable, with existing local, State or Federal land use 
policies and plans. A written statement of the views of the authorities 
with statutory responsibilities for land use policies and plans shall 
accompany the request for approval. The permittee shall obtain any 
required approval of local, State or Federal land management agencies, 
including any necessary zoning or other changes necessarily required for 
the final land use.
    (2) Specific plans have been prepared which show the feasibility of 
the proposed land use as related to needs, projected land use trends, 
and markets and that include a schedule showing how the proposed use 
will be developed and achieved within a reasonable time after mining and 
be sustained. The regulatory authority may require appropriate 
demonstrations to show that the planned procedures are feasible, 
reasonable, and integrated with mining and reclamation, and that the 
plans will result in successful reclamation.
    (3) Provision of any necessary public facilities is assured as 
evidenced by letters of commitment from parties other than the 
permittee, as appropriate, to provide them in a manner compatible with 
the permittee's plans.
    (4) Specific and feasible plans for financing attainment and 
maintenance of the postmining land use including letters of commitment 
from parties other than the permittee as appropriate, if the postmining 
land use is to be developed by such parties.
    (5) The plans are designed under the general supervision of a 
registered professional engineer, or other appropriate professional, who 
will ensure that the plans conform to applicable accepted standards for 
adequate land stability, drainage, and vegetative cover, and aesthetic 
design appropriate for the postmining use of the site.
    (6) The proposed use or uses will neither present actual or probable 
hazard

[[Page 63]]

to public health or safety nor will they pose any actual or probable 
threat of water flow diminution or pollution.
    (7) The use or uses will not involve unreasonable delays in 
reclamation.
    (8) Necessary approval of measures to prevent or mitigate adverse 
effects on fish and wildlife has been obtained from the regulatory 
authority and appropriate State and Federal fish and wildlife management 
agencies.
    (9) Proposals to change premining land uses of range, fish and 
wildlife habitat, forest land, hayland, or pasture to a postmining 
cropland use, where the cropland would require continous maintenance 
such as seeding, plowing, cultivation, fertilzation, or other similar 
practices to be practicable or to comply with applicable Federal, State, 
and local laws, shall be reviewed by the regulatory authority to assure 
that--
    (i) There is a firm written commitment by the permittee or by the 
landowner or land manager to provide sufficient crop management after 
release of applicable performance bonds to assure that the proposed 
postmining cropland use remains practical and reasonable;
    (ii) There is sufficient water available and committed to maintain 
crop production; and
    (iii) Topsoil quality and depth are shown to be sufficient to 
support the proposed use.
    (10) The regulatory authority has provided by public notice not less 
than 45 days nor more than 60 days for interested citizens and local, 
State and Federal agencies to review and comment on the proposed land 
use.

[42 FR 62680, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978]



Sec. 715.14  Backfilling and grading.

    In order to achieve the approximate orginal contour, the permittee 
shall, except as provided in this section, transport, backfill, compact 
(where advisable to ensure stability or to prevent leaching of toxic 
materials), and grade all spoil material to eliminate all highwalls, 
spoil piles, and depressions. Cut-and-fill terraces may be used only in 
those situations expressly identified in this section. The postmining 
graded slopes must approximate the premining natural slopes in the area 
as defined in paragraph (a).
    (a) Slope measurements. (1) To determine the natural slopes of the 
area before mining, sufficient slopes to adequately represent the land 
surface configuration, and as approved by the regulatory authority in 
accordance with site conditions, must be accurately measured and 
recorded. Each measurement shall consist of an angle of inclination 
along the prevailing slope extending 100 linear feet above and below or 
beyond the coal outcrop or the area to be disturbed; or, where this is 
impractical, at locations specified by the regulatory authority. Where 
the area has been previously mined, the measurements shall extend at 
least 100 feet beyond the limits of mining disturbances as determined by 
the regulatory authority to be representative of the premining 
configuration of the land. Slope measurements shall take into account 
natural variations in slope so as to provide accurate representation of 
the range of natural slopes and shall reflect geomorphic differences of 
the area to be disturbed. Slope measurements may be made from 
topographic maps showing contour lines, having sufficient detail and 
accuracy consistent with the submitted mining and reclamation plan.
    (2) After the disturbed area has been graded, the final graded 
slopes shall be measured at the beginning and end of lines established 
on the prevailing slope at locations representative of premining slope 
conditions and approved by the regulatory authority. These measurements 
must not be made so as to allow unacceptably steep slopes to be 
constructed.
    (b) Final graded slopes. (1) The final graded slopes shall not 
exceed either the approximate premining slopes as determined according 
to paragraph (a)(1) and approved by the regulatory authority or any 
lesser slope specifed by the regulatory based on consideration of soil, 
climate, or other characteristics of the surrounding area. Postmining 
final graded slopes need not be uniform. The requirements of this 
paragraph may be modifed by the regulatory authority where the mining is 
reaffecting previously mined lands that have not been restored to the

[[Page 64]]

standards of this section and sufficient spoil is not available to 
return to the slope determined according to paragraph (a)(1). Where such 
modifications are approved, the permittee shall, as a minimum, be 
required to--
    (i) Retain all overburden and spoil on the solid portion of existing 
or new benches; and
    (ii) Backfill and grade to the most moderate slope possible to 
eliminate the highwall which does not exceed the angle of repose or such 
lesser slopes as is necessary to assure stability.
    (2) On approval by the regulatory authority and in order to conserve 
soil moisture, ensure stability, and control erosion on final graded 
slopes, cut-and-fill terraces may be allowed if the terraces are 
compatible with the postmining land use approved under Sec. 715.13, and 
are appropriate substitutes for construction of lower grades on the 
reclaimed lands. The terraces shall meet the following requirements:
    (i) Where specialized grading, foundation conditions, or roads are 
required for the approved postmining land use, the final grading may 
include a terrace of adequate width to ensure the safety, stability, and 
erosion control necessary to implement the postmining land use plan.
    (ii) The vertical distance between terraces shall be as specified by 
the regulatory authority to prevent excessive erosion and to provide 
long-term stability.
    (iii) The slope of the terrace outslope shall not exceed 1v:2h (50 
percent). Outslopes which exceed 1v:2h (50 percent) may be approved if 
they have a minimum static safety factor of more than 1.5 and provide 
adequate control over erosion and closely resemble the surface 
configuration of the land prior to mining. In no case may highwalls be 
left as part of terraces.
    (iv) Culverts and underground rock drains shall be used on the 
terrace only when approved by the regulatory authority.
    (3) All operations on steep slopes of 20 degrees or more or on such 
lesser slopes as the regulatory authority defines as a steep slope shall 
meet the provisions of Sec. 716.2 of this chapter.
    (c) Mountaintop removal. The requirements of this paragraph and of 
Sec. 716.3 shall apply to surface mining operations which remove entire 
coal seams in the upper part of a mountain, ridge, or hill by removing 
all of the overburden, and where the requirements for achieving the 
approximate original contour of this section cannot be met. Final graded 
top plateau slopes on the mined area shall be less than 1v:5h so as to 
create a level plateau or gently rolling configuration and the outslopes 
of the plateau shall not exceed 1v:2h, except where engineering data 
substantiates and the regulatory authority finds that a minimum static 
safety factor of 1.5 (or higher factors specified by the regulatory 
authority) will be attained. Although the area need not be restored to 
approximate original contour, all highwalls, spoil piles, and 
depressions except as provided in paragraphs (d) and (e) of this section 
shall be eliminated. All mountaintop removal operations shall in 
addition meet the provisions of Sec. 716.3 of this chapter.
    (d) Small depressions. The requirement of this section to achieve 
approximate original contour does not prohibit construction of small 
depressions if they are approved by the regulatory authority to minimize 
erosion, conserve soil moisture or promote revegetation. These 
depressions shall be compatible with the approved postmining land use 
and shall not be inappropriate substitutes for construction of lower 
grades on the reclaimed lands. Depressions approved under this section 
shall have a holding capacity of less than 1 cubic yard of water or, if 
it is necessary that they be larger, shall not restrict normal access 
throughout the area or constitute a hazard. Large, permanent 
impoundments shall be governed by paragraph (e) of this section and by 
Sec. 715.17.
    (e) Permanent impoundments. Permanent impoundments may be retained 
in mined and reclaimed areas provided all highwalls are eliminated by 
grading to appropriate contour and the provisions for postmining land 
use (Sec. 715.13) and protection of the hydrologic balance (Sec. 
715.17) are met. No impoundments shall be constructed on top of areas in 
which excess materials are deposited pursuant to Sec. 715.15 of this 
part. Impoundments shall not be used to meet

[[Page 65]]

the requirements of paragraph (j) of this section.
    (f) Definition of thin and thick restored overburden. The thin 
overburden provisions of paragraph (g) of this section may apply only 
where the final thickness is less than 0.8 of the initial thickness. The 
thick overburden provisions of paragraph (h) of this section may apply 
only where the final thickness is greater than 1.2 of the initial 
thickness. Initial thickness is the sum of the overburden thickness and 
coal thickness. Final thickness is the product of the overburden 
thickness times the bulking factor to be determined for each mine area. 
The provisions of paragraphs (g) and (h) apply only when operations 
cannot be carried out to comply with the requirements of paragraph (a) 
of this section to achieve the approximate original contour.
    (g) Thin overburden. In surface coal mining operations carried out 
continuously in the same limited pit area for more than 1 year from the 
day coal-removal operations begin and where the volume of all available 
spoil and suitable waste materials is demonstrated to be insufficient to 
achieve approximate original contour, surface coal mining operations 
shall be conducted to meet, at a minimum, the following standards:
    (1) Transport, backfill, and grade, using all available spoil and 
suitable waste materials from the entire mine area, to attain the lowest 
practicable stable grade, which may not exceed the angle of repose, and 
to provide adequate drainage and long-term stability of the regraded 
areas.
    (2) Eliminate highwalls by grading or backfilling to stable slopes 
not exceeding 1v:2h (50 percent), or such lesser slopes as the 
regulatory authority may specify to reduce erosion, maintain the 
hydrologic balance, or allow the approved postmining land use.
    (3) Transport, backfill, grade, and revegetate to achieve an 
ecologically sound land use compatible with the prevailing land use in 
unmined areas surrounding the permit area.
    (4) Transport, backfill, and grade to ensure the impoundments are 
constructed only where it has been demonstrated to the regulatory 
authority's satisfaction that all requirements of Sec. 715.17 have been 
met and that the impoundments have been approved by the regulatory 
authority as meeting the requirements of this part and all other 
applicable Federal and State regulations.
    (h) Thick overburden. In surface coal mining operations where the 
volume of spoil is demonstrated to be more than sufficient to achieve 
the approximate original contour surface coal mining operations shall be 
conducted to meet at a minimum the following standards:
    (1) Transport, backfill, and grade all spoil and wastes not required 
to achieve approximate original contour in the surface mining area to 
the lowest practicable grade.
    (2) Deposit, backfill, and grade excess spoil and wastes only within 
the permit area and dispose of such materials in conformance with this 
part.
    (3) Transport, backfill, and grade excess spoil and wastes to 
maintain the hydrologic balance in accordance with this part and to 
provide long-term stability.
    (4) Transport, backfill, grade, and revegetate wastes and excess 
spoil to achieve an ecologically sound land use compatible with the 
prevailing land uses in unmined areas surrounding the permit area.
    (5) Eliminate all highwalls and depressions except as stated in 
paragraph (e) of this section by backfilling with spoil and suitable 
waste materials.
    (i) Regrading or stabilizing rills and gullies. When rills or 
gullies deeper than 9 inches form in areas that have been regraded and 
the topsoil replaced but vegetation has not yet been established the 
permittee shall fill, grade, or otherwise stabilize the rills and 
gullies and reseed or replant the areas according to Sec. 715.20. The 
regulatory authority shall specify that rills or gullies of lesser size 
be stabilized if the rills or gullies will be disruptive to the approved 
postmining land use or may result in additional erosion and 
sedimentation.
    (j) Covering coal and acid-forming, toxic-forming, combustible, and 
other waste materials; stabilizing backfilled materials; and using waste 
material for fill--(1) Cover. All exposed coal seams remaining after 
mining and any acid-forming, toxic-forming, combustible

[[Page 66]]

materials, or any other waste materials identified by the regulatory 
authority that are exposed, used, or produced during mining shall be 
covered with a minimum of 4 feet of nontoxic and noncombustible 
material; or, if necessary, treated to neutralize toxicity in order to 
prevent water pollution and sustained combustion, and to minimize 
adverse effects on plant growth and land uses. Where necessary to 
protect against upward migration of salts, exposure by erosion, to 
provide an adequate depth for plant growth, or to otherwise meet local 
conditions, the regulatory authority shall specify thicker amounts of 
cover using nontoxic material. Acid-forming or toxic-forming material 
shall not be buried or stored in proximity to a drainage course so as to 
cause or pose a threat of water pollution or otherwise violate the 
provisions of Sec. 715.17 of this part.
    (2) Stabilization. Backfilled materials shall be selectively placed 
and compacted wherever necessary to prevent leaching of toxic-forming 
materials into surface or subsurface waters in accordance with Sec. 
715.17 and wherever necessary to ensure the stability of the backfilled 
materials. The method of compacting material and the design 
specifications shall be approved by the regulatory authority before the 
toxic materials are covered.
    (3) Use of waste materials as fill. Before waste materials from a 
coal preparation or conversion facility or from other activities 
conducted outside the permit area such as municipal wastes are used for 
fill material, it must be demonstrated to the regulatory authority by 
hydrogeological means and chemical and physical analyses that use of 
these materials will not adversely affect water quality, water flow, and 
vegetation; will not present hazards to public health and safety; and 
will not cause instability in the backfilled area.
    (k) Grading along the contour. All final grading, preparation of 
overburden before replacement of topsoil, and placement of topsoil, in 
accordance with Sec. 715.16, shall be done along the contour to 
minimize subsequent erosion and instability. If such grading, 
preparation or placement along the contour would be hazardous to 
equipment operators then grading, preparation or placement in a 
direction other than generally parallel to the contour may be used. In 
all cases, grading, preparation, or placement shall be conducted in a 
manner which minimizes erosion and provides a surface for replacement of 
topsoil which will minimize slippage.

[42 FR 62680, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978, as amended at 47 
FR 18553, Apr. 29, 1982]



Sec. 715.15  Disposal of excess spoil.

    (a) General requirements. (1) Spoil not required to achieve the 
approximate original contour within the area where overburden has been 
removed shall be hauled or conveyed to and placed in designated disposal 
areas within a permit area, if the disposal areas are authorized for 
such purposes in the approved permit application in accordance with 
paragraphs (a) through (d) of this section. The spoil shall be placed in 
a controlled manner to ensure--
    (i) That leachate and surface runoff from the fill will not degrade 
surface or ground waters or exceed the effluent limitations of Sec. 
715.17(a)
    (ii) Stability of the fill; and
    (iii) That the land mass designated as the disposal area is suitable 
for reclamation and revegetation compatible with the natural 
surroundings.
    (2) The fill shall be designed using recognized professional 
standards, certified by a registered professional engineer, and approved 
by the regulatory authority.
    (3) All vegetative and organic materials shall be removed from the 
disposal area and the topsoil shall be removed, segregated, and stored 
or replaced under Sec. 715.16. If approved by the regulatory authority, 
organic material may be used as mulch or may be included in the topsoil 
to control erosion, promote growth of vegetation, or increase the 
moisture retention of the soil.
    (4) Slope protection shall be provided to minimize surface erosion 
at the site. Diversion design shall conform with the requirements of 
Sec. 715.17(c). All disturbed areas, including diversion ditches that 
are not riprapped, shall be vegetated upon completion of construction.

[[Page 67]]

    (5) The disposal areas shall be located on the most moderately 
sloping and naturally stable areas available as approved by the 
regulatory authority. If such placement provides additional stability 
and prevents mass movement, fill materials suitable for disposal shall 
be placed upon or above a natural terrace, bench, or berm.
    (6) The spoil shall be hauled or conveyed and placed in horizontal 
lifts in a controlled manner, concurrently compacted as necessary to 
ensure mass stability and prevent mass movement, covered, and graded to 
allow surface and subsurface drainage to be compatible with the natural 
surroundings and ensure a long-term static safety factor of 1.5.
    (7) The final configuration of the fill must be suitable for 
postmining land uses approved in accordance with Sec. 715.13, except 
that no depressions or impoundments shall be allowed on the completed 
fill.
    (8) Terraces may be utilized to control erosion and enhance 
stability if approved by the regulatory authority and consistent with 
Sec. 715.14(b)(2).
    (9) Where the slope in the disposal area exceeds 1v:2.8h (36 
percent), or such lesser slope as may be designated by the regulatory 
authority based on local conditions, keyway cuts (excavations to stable 
bedrock) or rock toe buttresses shall be constructed to stabilize the 
fill. Where the toe of the spoil rests on a downslope, stability 
analyses shall be performed to determine the size of rock toe buttresses 
and key way cuts.
    (10) The fill shall be inspected for stability by a registered 
engineer or other qualified professional specialist experienced in the 
construction of earth and rockfill embankments at least quarterly 
throughout construction and during the following critical construction 
periods: (i) Removal of all organic material and topsoil, (ii) placement 
of underdrainage systems, (iii) installation of surface drainage 
systems, (iv) placement and compaction of fill materials, and (v) 
revegetation. The registered engineer or other qualified professional 
specialist shall provide to the regulatory authority a certified report 
within 2 weeks after each inspection that the fill has been constructed 
as specified in the design approved by the regulatory authority. A copy 
of the report shall be retained at the minesite.
    (11) Coal processing wastes shall not be disposed of in head-of-
hollow or valley fills, and may only be disposed of in other excess 
spoil fills, if such waste is--
    (i) Demonstrated to be nontoxic and nonacid forming; and
    (ii) Demonstrated to be consistent with the design stability of the 
fill.
    (12) If the disposal area contains springs, natural or manmade 
watercourses, or wet-weather seeps, an underdrain system consisting of 
durable rock shall be constructed from the wet areas in a manner that 
prevents infiltration of the water into the spoil material. The 
underdrain system shall be protected by an adequate filter and shall be 
designed and constructed using standard geotechnical engineering 
methods.
    (13) The foundation and abutments of the fill shall be stable under 
all conditions of construction and operation. Sufficient foundation 
investigation and laboratory testing of foundation materials shall be 
performed in order to determine the design requirements for stability of 
the foundation. Analyses of foundation conditions shall include the 
effect of underground mine workings, if any, upon the stability of the 
structure.
    (14) Excess spoil may be returned to underground mine workings, but 
only in accordance with a disposal program approved by the regulatory 
authority and MSHA.
    (15) Disposal of excess spoil from an upper actively mined bench to 
a lower pre-existing bench by means of gravity transport is permitted 
provided that:
    (i) The operator receives the prior written approval of the 
regulatory authority upon demonstration by the operator that the spoil 
to be disposed of by gravity transport is not necessary for elimination 
of the highwall and return of the upper bench to approximate original 
contour;
    (ii) The following conditions and performance standards in addition 
to the environmental performance standards of this part are met:
    (A) The highwall of the lower bench intersects (meets) the upper 
actively

[[Page 68]]

mined bench with no natural slope between them;
    (B) The gravity transport points are determined on a site specific 
basis by the operator and approved by the regulatory authority to 
minimize hazards to health and safety and to ensure that damage will be 
minimized should spoil accidentally move down-slope of the lower bench;
    (C) The excess spoil is placed only on solid portions of the lower 
pre-existing bench;
    (D) All excess spoil on the lower solid bench, including that spoil 
immediately below the gravity transport points, is rehandled and placed 
in a controlled manner to eliminate as much of the lower highwall as 
practicable. Rehandling and placing the excess spoil on the lower solid 
bench shall consist of placing the excess spoil in horizontal lifts in a 
controlled manner, concurrently compacted as necessary to ensure mass 
stability and prevent mass movement, and graded to allow surface and 
subsurface drainage to be compatible with the natural surroundings to 
ensure a long term static safety factor of 1.3. Spoil on the bench prior 
to the current mining operation need not be rehandled except to ensure 
stability of the fill.
    (E) A safety berm is constructed on the solid portion of the lower 
bench prior to gravity transport of the excess spoil. Where there is 
insufficient material on the lower bench to construct a safety berm, 
only that amount of spoil necessary for the construction of the berm may 
be gravity transported to the lower bench prior to construction of the 
berm. The safety berm must be removed by the operator by final grading 
operations;
    (F) The area of the lower bench used to facilitate the disposal of 
excess spoil is considered a disturbed area.
    (b) Valley fills. Valley fills shall meet all of the requirements of 
paragraph (a) of this section and the additional requirements of this 
section.
    (1) The fill shall be designed to attain a long-term static safety 
factor of 1.5 based upon data obtained from subsurface exploration, 
geotechnical testing, foundation design, and accepted engineering 
analyses.
    (2) A subdrainage system for the fill shall be constructed in 
accordance with the following:
    (i) A system of underdrains constructed of durable rock shall meet 
the requirements of paragraph (2)(iv) of this section and:
    (A) Be installated along the natural drainage system;
    (B) Extend from the toe to the head of the fill; and
    (C) Contain lateral drains to each area of potential drainage or 
seepage.
    (ii) A filter system to insure the proper functioning of the rock 
underdrain system shall be designed and constructed using standard 
geotechnical engineering methods.
    (iii) In constructing the underdrains, no more than 10 percent of 
the rock may be less than 12 inches in size and no single rock may be 
larger than 25 percent of the width of the drain. Rock used in 
underdrains shall meet the requirements of paragraph (2)(iv) of this 
section. The minimum size of the main underdrain shall be:

------------------------------------------------------------------------
                                                         Minimum size of
                                   Predominant type of   drain, in feet
  Total amount of fill material       fill material    -----------------
                                                         Width    Height
------------------------------------------------------------------------
Less than 1,000,000 yd \3\.......  Sandstone..........       10        4
 Do..............................  Shale..............       16        8
More than 1,000,000 yd \3\.......  Sandstone..........       16        8
 Do..............................  Shale..............       16       16
------------------------------------------------------------------------

    (iv) Underdrains shall consist of nondegradable, non-acid or toxic 
forming rock such as natural sand and gravel, sandstone, limestone, or 
other durable rock that will not slake in water and will be free of 
coal, clay or shale.
    (3) Spoil shall be hauled or conveyed and placed in a controlled 
manner and concurrently compacted as specified by the regulatory 
authority, in lifts no greater than 4 feet or less if required by the 
regulatory authority to--
    (i) Achieve the densities designed to ensure mass stability;
    (ii) Prevent mass movement;
    (iii) Avoid contamination of the rock underdrain or rock core; and
    (iv) Prevent formation of voids.
    (4) Surface water runoff from the area above the fill shall be 
diverted away from the fill and into stabilized diversion channels 
designed to pass safely the runoff from a 100-year, 24-hour 
precipitation event or larger

[[Page 69]]

event specified by the regulatory authority. Surface runoff from the 
fill surface shall be diverted to stabilized channels off the fill which 
will safely pass the runoff from a 100-year, 24-hour precipitation 
event. Diversion design shall comply with the requirements of Sec. 
715.17(c).
    (5) The tops of the fill and any terrace constructed to stabilize 
the face shall be graded no steeper than 1v:20h (5 percent). The 
vertical distance between terraces shall not exceed 50 feet.
    (6) Drainage shall not be directed over the outslope of the fill.
    (7) The outslope of the fill shall not exceed 1v:2h (50 percent). 
The regulatory authority may require a flatter slope.
    (c) Head-of-hollow fills. Disposal of spoil in the head-of-hollow 
fill shall meet all standards set forth in paragraphs (a) and (b) and 
the additional requirements of this section.
    (1) The fill shall be designed to completely fill the disposal site 
to the approximate elevation of the ridgeline. A rock-core chimney drain 
may be utilized instead of the subdrain and surface diversion system 
required for valley fills. If the crest of the fill is not approximately 
at the same elevation as the low point of the adjacent ridgeline, the 
fill must be designed as specified in paragraph (b), with diversion of 
runoff around the fill. A fill associated with contour mining and placed 
at or near the coal seam, and which does not exceed 250,000 cubic yards 
may use the rock-core chimney drain.
    (2) The alternative rock-core chimney drain system shall be designed 
and incorporated into the construction of head-of-hollow fills as 
follows:
    (i) The fill shall have, along the vertical projection of the main 
buried stream channel or rill a vertical core of durable rock at least 
16 feet thick which shall extend from the toe of the fill to the head of 
the fill, and from the base of the fill to the surface of the fill. A 
system of lateral rock underdrains shall connect this rock core to each 
area of potential drainage or seepage in the disposal area. Rocks used 
in the rock core and underdrains shall meet the requirements of 
paragraph (b)(2)(iv).
    (ii) A filter system to ensure the proper functioning of the rock 
core shall be designed and constructed using standard geotechnical 
engineering methods.
    (iii) The grading may drain surface water away from the outslope of 
the fill and toward the rock core. The maximum slope of the top of the 
fill shall be 1v:33h (3 percent). Instead of the requirements of 
paragraph (a)(7) of this section, a drainage pocket may be maintained at 
the head of the fill during and after construction, to intercept surface 
runoff and discharge the runoff through or over the rock drain, if 
stability of the fill is not impaired. In no case shall this pocket or 
sump have a potential for impounding more than 10,000 cubic feet of 
water. Terraces on the fill shall be graded with a 3- to 5-percent grade 
toward the fill and a 1-percent slope toward the rock core.
    (3) The drainage control system shall be capable of passing safely 
the runoff from a 100-year, 24-hour precipitation event, or larger event 
specified by the regulatory authority.
    (d) Durable rock fills. In lieu of the requirements of paragraphs 
(b) and (c) of this section the regulatory authority may approve 
alternate methods for disposal of hard rock spoil, including fill 
placement by dumping in a single lift, on a site specific basis, 
provided the services of a registered professional engineer experienced 
in the design and construction of earth and rockfill embankments are 
utilized and provided the requirements of this paragraph and paragraph 
(a) are met. For this section, hard rock spoil shall be defined as 
rockfill consisting of at least 80 percent by volume of sandstone, 
limestone, or other rocks that do not slake in water. Resistance of the 
hard rock spoil to slaking shall be determined by using the slake index 
and slake durability tests in accordance with guidelines and criteria 
established by the regulatory authority.
    (1) Spoil is to be transported and placed in a specified and 
controlled manner which will ensure stability of the fill.
    (i) The method of spoil placement shall be designed to ensure mass 
stability and prevent mass movement in

[[Page 70]]

accordance with the additional requirements of this section.
    (ii) Loads of noncemented clay shale and/or clay spoil in the fill 
shall be mixed with hard rock spoil in a controlled manner to limit on a 
unit basis concentrations of noncemented clay shale and clay in the 
fill. Such materials shall comprise no more than 20 percent of the fill 
volume as determined by tests performed by a registered engineer and 
approved by the regulatory authority.
    (2)(i) Stability analyses shall be made by the registered 
professional engineer. Parameters used in the stability analyses shall 
be based on adequate field reconnaissance, subsurface investigations, 
including borings, and laboratory tests.
    (ii) The embankment which constitutes the valley fill or head-of-
hollow fill shall be designed with the following factors of safety:

------------------------------------------------------------------------
                                                                Minimum
                Case                     Design condition      factor of
                                                                safety
------------------------------------------------------------------------
I...................................  End of construction...         1.5
II..................................  Earthquake............         1.1
------------------------------------------------------------------------

    (3) The design of a head-of-hollow fill shall include an internal 
drainage system which will ensure continued free drainage of anticipated 
seepage from precipitation and from springs or wet weather seeps.
    (i) Anticipated discharge from springs and seeps and due to 
precipitation shall be based on records and/or field investigations to 
determine seasonal variation. The design of the internal drainage system 
shall be based on the maximum anticipated discharge.
    (ii) All granular material used for the drainage system shall be 
free of clay and consist of durable particles such as natural sands and 
gravels, sandstone, limestone or other durable rock which will not slake 
in water.
    (iii) The internal drain shall be protected by a properly designed 
filter system.
    (4) Surface water runoff from the areas adjacent to and above the 
fill shall not be allowed to flow onto the fill and shall be diverted 
into stabilized channels which are designed to pass safely the runoff 
from a 100-year, 24-hour precipitation event. Diversion design shall 
comply with the requirements of Sec. 715.17(c).
    (5) The top surface of the completed fill shall be graded such that 
the final slope after settlement will be no steeper than 1v:20h (5 
percent) toward properly designed drainage channels in natural ground 
along the periphery of the fill. Surface runoff from the top surface of 
the fill shall not be allowed to flow over the outslope of the fill.
    (6) Surface runoff from the outslope of the fill shall be diverted 
off the fill to properly designed channels which will pass safely a 100-
year, 24-hour precipitation event. Diversion design shall comply with 
the requirements of Sec. 715.17(c).
    (7) Terraces shall be constructed on the outslope if required for 
control of erosion or for roads included in the approved postmining land 
use plan. Terraces shall meet the following requirements:
    (i) The slope of the outslope between terrace benches shall not 
exceed 1v:2h (50 percent.).
    (ii) To control surface runoff, each terrace bench shall be graded 
to a slope of 1v:20h (5 percent) toward the embankment. Runoff shall be 
collected by a ditch along the intersection of each terrace bench and 
the outslope.
    (iii) Terrace ditches shall have a 5-percent slope toward the 
channels specified in paragraph (d)(6) of this section, unless steeper 
slopes are necessary in conjunction with approved roads.
    (e) Preexisting benches. (1) The regulatory authority may approve 
the disposal of excess spoil through placement on preexisting benches: 
Provided, That the standards set forth in paragraphs (a)(1)-(a)(5) and 
(a)(7)-(a)(14) of this section and the requirements of this paragraph 
(e) are met.
    (2) All spoil shall be placed on the solid portion of the 
preexisting bench.
    (3) The fill shall be designed, using standard geotechnical 
analysis, to attain a long-term static safety factor of 1.3 for all 
portions of the fill.
    (4) The preexisting bench shall be backfilled and graded to--
    (i) Achieve the most moderate slope possible which does not exceed 
the angle of repose, and

[[Page 71]]

    (ii) Eliminate the highwall to the extent practicable.

[44 FR 30628, May 25, 1979, as amended at 46 FR 37233, July 17, 1981; 47 
FR 18555, Apr. 29, 1982]



Sec. 715.16  Topsoil handling.

    To prevent topsoil from being contaminated by spoil or waste 
materials, the permittee shall remove the topsoil as a separate 
operation from areas to be disturbed. Topsoil shall be immediately 
redistributed according to the requirements of paragraph (b) of this 
section on areas graded to the approved postmining configuration. The 
topsoil shall be segregated, stockpiled, and protected from wind and 
water erosion and from contaminants which lessen its capability to 
support vegetation if sufficient graded areas are not immediately 
available for redistribution.
    (a) Topsoil removal. All topsoil to be salvaged shall be removed 
before any drilling for blasting, mining, or other surface disturbance.
    (1) All topsoil shall be removed unless use of alternative materials 
is approved by the regulatory authority in accordance with paragraph 
(a)(4) of this section. Where the removal of topsoil results in erosion 
that may cause air or water pollution, the regulatory authority shall 
limit the size of the area from which topsoil may be removed at any one 
time and specify methods of treatment to control erosion of exposed 
overburden.
    (2) All of the A horizon of the topsoil as identified by soil 
surveys shall be removed according to paragraph (a) and then replaced on 
disturbed areas as the surface soil layers. Where the A horizon is less 
than 6 inches, a 6-inch layer that includes the A horizon and the 
unconsolidated material immediately below the A horizon (or all 
unconsolidated material if the total available is less than 6 inches) 
shall be removed and the mixture segregated and replaced as the surface 
soil layer.
    (3) Where necessary to obtain soil productivity consistent with 
postmining land use, the regulatory authority may require that the B 
horizon or portions of the C horizon or other underlying layers 
demonstrated to have comparable quality for root development be 
segregated and replaced as subsoil.
    (4) Selected overburden materials may be used instead of, or as a 
supplement to, topsoil where the resulting soil medium is equal to or 
more suitable for vegetation, and if all the following requirements are 
met:
    (i) The permittee demonstrates that the selected overburden 
materials or an overburden-topsoil mixture is more suitable for 
restoring land capability and productivity by the results of chemical 
and physical analyses. These analyses shall include determinations of 
pH, percent organic material, nitrogen, phosphorus, potassium, texture 
class, and water-holding capacity, and such other analyses as required 
by the regulatory authority. The regulatory authority also may require 
that results of field-site trials or greenhouse tests be used to 
demonstrate the feasibility of using such overburden materials.
    (ii) The chemical and physical analyses and the results of field-
site trials and greenhouse tests are accompanied by a certification from 
a qualified soil scientist or agronomist.
    (iii) The alternative material is removed, segregated, and replaced 
in conformance with this section.
    (b) Topsoil redistribution. (1) After final grading and before the 
topsoil is replaced, regraded land shall be scarified or otherwise 
treated to eliminate slippage surfaces and to promote root penetration.
    (2) Topsoil shall be redistributed in a manner that--
    (i) Achieves an approximate uniform thickness consistent with the 
postmining land uses;
    (ii) Prevents excess compaction of the spoil and topsoil; and
    (iii) Protects the topsoil from wind and water erosion before it is 
seeded and planted.
    (c) Topsoil storage. If the permit allows storage of topsoil, the 
stockpiled topsoil shall be placed on a stable area within the permit 
area where it will not be disturbed or be exposed to excessive water, 
wind erosion, or contaminants which lessen its capability to support 
vegetation before it can be redistributed on terrain graded to final 
contour. Stockpiles shall be selectively placed and protected from wind 
and

[[Page 72]]

water erosion, unnecessary compaction, and contamination by undesirable 
materials either by a vegetative cover as defined in Sec. 715.20(g) or 
by other methods demonstrated to provide equal protection such as snow 
fences, chemical binders, and mulching. Unless approved by the 
regulatory authority, stockpiled topsoil shall not be moved until 
required for redistribution on a disturbed area.
    (d) Nutrients and soil amendments. Nutrients and soil amendments in 
the amounts and analyses as determined by soil tests shall be applied to 
the surface soil layer so that it will support the postmining 
requirements of Sec. 715.13 and the revegetation requirements of Sec. 
715.20.



Sec. 715.17  Protection of the hydrologic system.

    The permittee shall plan and conduct coal mining and reclamation 
operations to minimize disturbance to the prevailing hydrologic balance 
in order to prevent long-term adverse changes in the hydrologic balance 
that could result from surface coal mining and reclamation operations, 
both on- and off-site. Changes in water quality and quantity, in the 
depth to ground water, and in the location of surface water drainage 
channels shall be minimized such that the postmining land use of the 
disturbed land is not adversely affected and applicable Federal and 
State statutes and regulations are not violated. The permittee shall 
conduct operations so as to minimize water pollution and shall, where 
necessary, use treatment methods to control water pollution. The 
permittee shall emphasize surface coal mining and reclamation practices 
that will prevent or minimize water pollution and changes in flows in 
preference to the use of water treatment facilities. Practices to 
control and minimize pollution include, but are not limited to, 
stabilizing disturbed areas through grading, diverting runoff, achieving 
quick growing stands of temporary vegetation, lining drainage channels 
with rock or vegetation, mulching, sealing acid-forming and toxic-
forming materials, and selectively placing waste materials in backfill 
areas. If pollution can be controlled only by treatment, the permittee 
shall operate and maintain the necessary water-treatment facilities for 
as long as treatment is required.
    (a) Water quality standards and effluent limitations. All surface 
drainage from the disturbed area, including disturbed areas that have 
been graded, seeded, or planted, shall be passed through a sedimentation 
pond or a series of sedimentation ponds before leaving the permit area. 
Sedimentation ponds shall be retained until drainage from the disturbed 
areas has met the water quality requirements of this section and the 
revegetation requirements of Sec. 715.20 have been met. The regulatory 
authority may grant exemptions from this requirement only when the 
disturbed drainage area within the total disturbed area is small and if 
the permittee shows that sedimentation ponds are necessary to meet the 
effluent limitations of this paragraph and to maintain water quality in 
downstream receiving waters. For purpose of this section only, disturbed 
area shall not include those areas in which only diversion ditches, 
sedimentation ponds, or roads are installed in accordance with this 
section and the upstream area is not otherwise disturbed by the 
permittee. Sedimentation ponds required by this paragraph shall be 
constructed in accordance with paragraph (e) of this section in 
appropriate locations prior to any mining in the affected drainage area 
in order to control sedimentation or otherwise treat water in accordance 
with this paragraph. Discharges from areas disturbed by surface coal 
mining and reclamation operations must meet all applicable Federal and 
State laws and regulations and, at a minimum, the following numerical 
effluent limitations:

   Effluent Limitations, in Milligrams Per Liter, mg/l, Except for pH
------------------------------------------------------------------------
                                                              Average of
                                                                daily
                                                  Maximum     values for
           Effluent characteristics              allowable        30
                                                    \1\      consecutive
                                                              discharge
                                                               days \1\
------------------------------------------------------------------------
Iron, total...................................          7.0          3.5
Manganese, total..............................          4.0          2.0
Total suspended solids \2\....................         70.0         35.0
pH \3\........................................       (\4\ )       (\4\ )
------------------------------------------------------------------------
\1\ Based on representative sampling.

[[Page 73]]

 
\2\ In Arizona, Colorado, Montana, New Mexico, North Dakota, South
  Dakota, Utah, and Wyoming, total suspended solids limitations will be
  determined on a case-by-case basis, but they must not be greater than
  45 mg/l (maximum allowable) and 30 mg/l (average of daily value for 30
  consecutive discharge days) based on a representative sampling.
\3\ Where the application of neutralization and sedimentation treatment
  technology results in inability to comply with the manganese
  limitation set forth, the regulatory authority may allow the pH level
  in the discharge to exceed to a small extent the upper limit of 9.0 in
  order that the manganese limitations will be achieved.
\4\ Within the range 6.0 to 9.0.

    (1) Any overflow or other discharge of surface water from the 
disturbed area within the permit area demonstrated by the permittee to 
result from a precipitation event larger than a 10-year, 24-hours 
frequency event will not be subject to the effluent limitations of 
paragraph (a).
    (2) The permittee shall install, operate, and maintain adequate 
facilities to treat any water discharged from the disturbed area that 
violates applicable federal or State laws or regulations or the 
limitations of paragraph (a). If the pH of waters to be discharged from 
the disturbed area is normally less than 6.0, an automatic line feeder 
or other neutralization process approved by the regulatory authority 
shall be installed operated, and maintained. If, the regulatory 
authority finds (i) that small and infrequent treatment requirements to 
meet applicable standards do not necessitate use of an automatic 
neutralization process, and (ii) that the mine normally produces less 
than 500 tons of coal per day, then the regulatory authority may approve 
the use of a manual system if the permittee ensures consistent and 
timely treatment.
    (3) The effluent limitations for manganese shall be applicable only 
to acid drainage.
    (b) Surface-water monitoring. (1) The permittee shall submit for 
approval by the regulatory authority a surface-water monitoring program 
which meets the following requirements:
    (i) Provides adequate monitoring of all discharge from the disturbed 
area.
    (ii) Provides adequate data to describe the likely daily and 
seasonal variation in discharges from the disturbed area in terms of 
water flow, pH, total iron, total managanese, and total suspended solids 
and, if requested by the regulatory authority, any other parameter 
characteristic of the discharge.
    (iii) Provides monitoring at appropriate frequencies to measure 
normal and abnormal variations in concentrations.
    (iv) Provides an analytical quality control system including 
standard methods of analysis such as those specified in 40 CFR 136.
    (v) Within sixty (60) days of the end of each sixty (60) day sample 
collection period, a report of all samples shall be made to the 
regulatory authority, unless the discharge for which water monitoring 
reports are required is subject to regulation by a National Pollution 
Discharge Elimination System (NPDES) permit issued in compliance with 
the Clean Water Act of 1977 (33 U.S.C. 1251-1378), (A) which includes 
equivalent reporting requirements, and (B) which requires filing of the 
water monitoring report within 90 days or less of sample collection. For 
such discharges, the reporting requirements of this paragraph may be 
satisfied by submitting to the regulatory authority on the same time 
schedule as required by the NPDES permit or within ninety (90) days 
following sample collection, whichever is earlier, either (1) a copy of 
the completed reporting form filed to meet the NPDES permit 
requirements, or (2) a letter identifying the State or Federal 
government official with whom the reporting form was filed to meet the 
NPDES permit requirements and the date of filing. In all cases in which 
analytical results of the sample collections indicate a violation of a 
permit condition or applicable standard has occurred, the operator shall 
notify the regulatory authority immediately. Where an NPDES permit 
effluent limitation requirement has been violated, the permittee should 
forward a copy of the Discharge Monitoring Report, EPA Form 3320-1, 
concurrently with notification of the violation.
    (2) After disturbed areas have been regraded and stabilized in 
accordance with this part, the permittee shall monitor surface water 
flow and quality. Data from this monitoring shall be used to demonstrate 
that the quality and quantity of runoff without treatment will be 
consistent with the requirement of this section to minimize

[[Page 74]]

disturbance to the prevailing hydrologic balance and with the 
requirements of this part to attain the approved postmining land use. 
These data shall provide a basis for approval by the regulatory 
authority for removal of water quality or flow control systems and for 
determining when the requirements of this section are met. The 
regulatory authority shall determine the nature of data, frequency of 
collection, and reporting requirements.
    (3) Equipment, structures, and other measures necessary to 
accurately measure and sample the quality and quantity of surface water 
discharges from the disturbed area of the permit area shall be properly 
installed, maintained, and operated and shall be removed when no longer 
required.
    (c) Diversion and conveyance of overland flow away from disturbed 
areas. In order to minimize erosion and to prevent or remove water from 
contacting toxic-producing deposits, overland flow from undisturbed 
areas may, if required or approved by the regulatory authority, be 
diverted away from disturbed areas by means of temporary or permanent 
diversion structures. The following requirements shall be met:
    (1) Temporary diversion structures shall be constructed to safely 
pass the peak runoff from a precipitation event with a one year 
recurrence interval, or a larger event as specified by the regulatory 
authority. The design criteria must assure adequate protection of the 
environment and public during the existence of the temporary diversion 
structure.
    (2) Permanent diversion structures are those remaining after mining 
and reclamation and approved for retention by the regulatory authority 
and other appropriate State and Federal agencies. To protect fills and 
property and to avoid danger to public health and safety, permanent 
diversion structures shall be constructed to safely pass the peak runoff 
from a precipitation event with a 100-year recurrence interval, or a 
larger event as specified by the regulatory authority. Permanent 
diversion structures shall be constructed with gently sloping banks that 
are stabilized by vegetation. Asphalt, concrete, or other similar 
linings shall not be used unless specifically required to prevent 
seepage or to provide stability and are approved by the regulatory 
authority.
    (3) Diversions shall be designed, constructed, and maintained in a 
manner to prevent additional contributions of suspended solids to 
streamflow or to runoff outside the permit area to the extent possible, 
using the best technology currently available. In no event shall such 
contributions be in excess of requirements set by applicable State or 
Federal law. Appropriate sediment control measures for these diversions 
shall include, but not be limited to, maintenances of appropriate 
gradients, channel lining, revegetation, roughness structures, and 
detention basins.
    (d) Stream channel diversions. (1) Flow from perennial and 
intermittent streams within the permit area may be diverted only when 
the diversions are approved by the regulatory authority and they are in 
compliance with local, State, and Federal statutes and regulations. When 
streamflow is allowed to be diverted, the new stream channel shall be 
designed and constructed to meet the following requirements:
    (i) The average stream gradient shall be maintained and the channel 
designed, constructed, and maintained to remain stable and to prevent 
additional contributions of suspended solids to streamflow, or to runoff 
outside the permit area to the extent possible, using the best 
technology currently available. In no event shall such contributions be 
in excess of requirements set by applicable State or Federal law. 
Erosion control structures such as channel lining structures, retention 
basins, and artificial channel roughness structures shall be used only 
when approved by the regulatory agency for temporary diversions where 
necessary or for permanent diversions where they are stable and will 
require only infrequent maintenance.
    (ii) Channel, bank, and flood-plain configurations shall be adequate 
to safely pass the peak runoff of a precipitation event with a 10-year 
recurrence interval for temporary diversions and a 100-year recurrence 
interval for permanent diversions, or larger events as specified by the 
regulatory authority.
    (iii) Fish and wildlife habitat and water and vegetation of 
significant

[[Page 75]]

value for wildlife shall be protected in consultation with appropriate 
State and Federal fish and wildlife management agencies.
    (2) All temporary diversion structures shall be removed and the 
affected land regraded and revegetated consistent with the requirements 
of Sec. Sec. 715.14 and 715.20. At the time such diversions are 
removed, the permittee shall ensure that downstream water treatment 
facilities previously protected by the diversion are modified or removed 
to prevent overtopping or failure of the facilities.
    (3) Buffer zone. No land within 100 feet of an intermittent or 
perennial stream shall be disturbed by surface coal mining and 
reclamation operations unless the regulatory authority specifically 
authorizes surface coal mining and reclamation operations through such a 
stream. The area not to be disturbed shall be designated a buffer zone 
and marked as specified in Sec. 715.12.
    (e) Sedimentation ponds--(1) General requirements. Sedimentation 
ponds shall be used individually or in series and shall--
    (i) Be constructed before any disturbance of the undisturbed area to 
be drained into the pond;
    (ii) Be located as near as possible to the disturbed area and out of 
perennial streams; unless approved by the regulatory authority;
    (iii) Meet all the criteria of this section.
    (2) Sediment storage volume. Sedimentation ponds shall provide a 
minimum sediment storage volume.
    (3) Detention time. Sedimentation ponds shall provide the required 
theoretical detention time for the water inflow or runoff entering the 
pond from a 10-year, 24-hour precipitation event (design event).
    (4) Dewatering. The water storage resulting from inflow shall be 
removed by a nonclogging dewatering device or a conduit spillway 
approved by the regulatory authority. The dewatering device shall not be 
located at a lower elevation than the maximum elevation of the 
sedimentation storage volume.
    (5) Each person who conducts surface mining activities shall design, 
construct, and maintain sedimentation ponds to prevent short-circuiting 
to the extent possible.
    (6) The design, construction, and maintenance of a sedimentation 
pond or other sediment control measures in accordance with this section 
shall not relieve the person from compliance with applicable effluent 
limitations as contained in paragraph (a) of this section.
    (7) There shall be no out-flow through the emergency spillway during 
the passage of the runoff resulting from the 10-year, 24-hour 
precipitation event or lesser events through the sedimentation pond.
    (8) Sediment shall be removed from sedimentation ponds.
    (9) An appropriate combination of principal and emergency spillways 
shall be provided to safely discharge the runoff from a 25-year, 24-hour 
precipitation event, or larger event specified by the regulatory 
authority. The elevation of the crest of the emergency spillway shall be 
a minimum of 1.0 foot above the crest of the principal spillway. 
Emergency spillway grades and allowable velocities shall be approved by 
the regulatory authority.
    (10) The minimum elevation at the top of the settled embankment 
shall be 1.0 foot above the water surface in the pond with the emergency 
spillway flowing at design depth. For embankments subject to settlement, 
this 1.0 foot minimum elevation requirement shall apply at all times, 
including the period after settlement.
    (11) The constructed height of the dam shall be increased a minimum 
of 5 percent over the design height to allow for settlement, unless it 
has been demonstrated to the regulatory authority that the material used 
and the design will ensure against all settlement.
    (12) The minimum top width of the embankment shall not be less than 
the quotient of (H+35)/5, where H is the height, in feet, of the 
embankment as measured from the upstream toe of the embankment.
    (13) The combined upstream and downstream side slopes of the settled 
embankment shall not be less than 1v:5h, with neither slope steeper than 
1v:2h. Slopes shall be designed to be stable in all cases, even if 
flatter side slopes are required.

[[Page 76]]

    (14) The embankment foundation areas shall be cleared of all organic 
matter, all surfaces sloped to no steeper than 1v:1h, and the entire 
foundation surface scarified.
    (15) The fill material shall be free of sod, large roots, other 
large vegetative matter, and frozen soil, and in on case shall coal-
processing waste be used.
    (16) The placing and spreading of fill material shall be started at 
the lowest point of the foundation. The fill shall be brought up in 
horizontal layers of such thickness as is required to facilitate 
compaction and meet the design requirements of this section. Compaction 
shall be conducted as specified in the design approved by the regulatory 
authority.
    (17) If a sedimentation pond has an embankment that is more than 20 
feet in height, as measured from the upstream toe of the embankment to 
the crest of the emergency spillway, or has a storage volume of 20 acre-
feet or more, the following additional requirements shall be met:
    (i) An appropriate combination of principal and emergency spillways 
shall be provided to discharge safely the runoff resulting from a 100-
year, 24-hour precipitation event, or a larger event specified by the 
regulatory authority.
    (ii) The embankment shall be designed and constructed with a static 
safety factor of at least 1.5, or a higher safety factor as designated 
by the regulatory authority to ensure stability.
    (iii) Appropriate barriers shall be provided to control seepage 
along conduits that extend through the embankment.
    (iv) The criteria of the Mine Safety and Health Administration as 
published in 30 CFR 77.216 shall be met.
    (18) Each pond shall be designed and inspected during construction 
under the supervision of, and certified after construction by, a 
registered professional engineer.
    (19) The entire embankment including the surrounding areas disturbed 
by construction shall be stabilized with respect to erosion by a 
vegetative cover or other means immediately after the embankment is 
completed. The active upstream face of the embankment where water will 
be impounded may be riprapped or otherwise stabilized. Areas in which 
the vegetation is not successful or where rills and gullies develop 
shall be repaired and revegetated in accordance with Sec. 715.20.
    (20) All ponds, including those not meeting the size or other 
criteria of 30 CFR 77.216(a), shall be examined for structural weakness, 
erosion, and other hazardous conditions, and reports and modifications 
shall be made to the regulatory authority, in accordance with 30 CFR 
77.216-3. With the approval of the regulatory authority, dams not 
meeting these criteria (30 CFR 77.216(a)) shall be examined four times 
per year.
    (21) Sedimentation ponds shall not be removed until the disturbed 
area has been restored, and the vegetation requirements of Sec. 715.20 
are met and the drainage entering the pond has met the applicable State 
and Federal water quality requirements for the receiving stream. When 
the sedimentation pond is removed, the affected land shall be regraded 
and revegetated in accordance with Sec. Sec. 715.14, 715.16, and 
715.20, unless the pond has been approved by the regulatory authority 
for retention as being compatible with the approved postmining land use. 
If the regulatory authority approves retention, the sedimentation pond 
shall meet all the requirements for permanent impoundments of paragraph 
(k) of this section.
    (22)(i) Where surface mining activities are proposed to be conducted 
on steep slopes, as defined in Sec. 716.2 of this chapter, special 
sediment control measures may be followed if the person has demonstrated 
to the regulatory authority that a sedimentation pond (or series of 
ponds) constructed according to paragraph (e) of this section--
    (A) Will jeopardize public health and safety; or
    (B) Will result in contributions of suspended solids to streamflow 
in excess of the incremental sediment volume trapped by the additional 
pond size required.
    (ii) Special sediment control measures shall include but not be 
limited to--
    (A) Designing, constructing, and maintaining a sedimentation pond as 
near as physically possible to the disturbed area which complies with 
the

[[Page 77]]

design criteria of this section to the maximum extent possible.
    (B) A plan and commitment to employ sufficient onsite sedimentation 
control measures including bench sediment storage, filtration by natural 
vegetation, mulching, and prompt revegetation which, in conjunction with 
the required sediment pond, will achieve and maintain applicable 
effluent limitations. The plan submitted pursuant to this paragraph 
shall include a detailed description of all onsite control measures to 
be employed, a quantitative analysis demonstrating that onsite 
sedimentation control measures, in conjunction with the required 
sedimentation pond, will achieve and maintain applicable effluent 
limitations, and maps depicting the location of all onsite sedimentation 
control measures.
    (f) Discharge structures. Discharges from sedimentation ponds and 
diversions shall be controlled, where necessary, using energy 
dissipators, surge ponds, and other devices to reduce erosion and 
prevent deepening or enlargement of stream channels and to minimize 
disturbances to the hydrologic balance.
    (g) Acid and toxic materials. Drainage from acid-forming and toxic-
forming mine waste materials and soils into ground and surface water 
shall be avoided by--
    (1) Identifying, burying, and treating where necessary, spoil or 
other materials that, in the judgment of the regulatory authority, will 
be toxic to vegetation or that will adversely affect water quality if 
not treated or buried. Such material shall be disposed of in accordance 
with the provision of Sec. 715.14(j);
    (2) Preventing or removing water from contact with toxic-producing 
deposits;
    (3) Burying or otherwise treating all toxic or harmful materials 
within 30 days, if such materials are subject to wind and water erosion, 
or within a lesser period designated by the regulatory authority. If 
storage of such materials is approved, the materials shall be placed on 
impermeable material and protected from erosion and contact with surface 
water. Coal waste ponds and other coal waste materials shall be 
maintained according to paragraph (g)(4) of this section, and Sec. 
715.18 shall apply;
    (4) Burying or otherwise treating waste materials from coal 
preparation plants no later than 90 days after the cessation of the 
filling of the disposal area. Burial or treatment shall be in accordance 
with Sec. 715.14(j);
    (5) Casing, sealing or otherwise managing boreholes, shafts, wells, 
and auger holes or other more or less horizontal holes to prevent 
pollution of surface or ground water and to prevent mixing of ground 
waters of significantly different quality. All boreholes that are within 
the permit area but are outside the surface coal mining area or which 
extend beneath the coal to be mined and into water bearing strata shall 
be plugged permanently in a manner approved by the regulatory authority, 
unless the boreholes have been approved for use in monitoring;
    (6) Taking such other actions as required by the regulatory 
authority.
    (h) Ground water--(1) Recharge capacity of reclaimed lands. The 
disturbed area shall be reclaimed to restore approximate premining 
recharge capacity through restoration of the capability of the reclaimed 
areas as a whole to transmit water to the ground water system. The 
recharge capacity should be restored to support the approved postmining 
land use and to minimize disturbances to the prevailing hydrologic 
balance at the mined area and in associated offsite areas. The permittee 
shall be responsible for monitoring according to paragraph (h)(3) of 
this section to ensure operations conform to this requirement.
    (2) Ground water systems. Backfilled materials shall be placed to 
minimize adverse effects on ground water flow and quality, to minimize 
offsite effects, and to support the approved postmining land use. The 
permittee shall be responsible for performing monitoring according to 
paragraph (h)(3) of this section to ensure operations conform to this 
requirement.
    (3) Monitoring. Ground water levels, infiltration rates, subsurface 
flow and storage characteristics, and the quality of ground water shall 
be monitored in a

[[Page 78]]

manner approved by the regulatory authority to determine the effects of 
surface coal mining and reclamation operations on the recharge capacity 
of reclaimed lands and on the quantity and quality of water in ground 
water systems at the mine area and in associated offsite areas. When 
operations are conducted in such a manner that may affect the ground 
water system, ground water levels and ground water quality shall be 
periodically monitored using wells that can adequately reflect changes 
in ground water quantity and quality resulting from such operations. 
Sufficient water wells must be used by the permittee. The regulatory 
authority may require drilling and development of additional wells if 
needed to adequately monitor the ground water system. As specified and 
approved by the regulatory authority, additional hydrologic tests, such 
as infiltration tests and aquifer tests, must be undertaken by the 
permittee to demonstrate compliance with paragraph (h) (1) and (2) of 
this section.
    (i) Water rights and replacement. The permittee shall replace the 
water supply of an owner of interest in real property who obtains all or 
part of his supply of water for domestic, agricultural, industrial, or 
other legitimate use from an underground or surface source where such 
supply has been affected by contamination, diminution, or interruption 
proximately resulting from surface coal mine operation by the permittee.
    (j) Alluvial valley floors west of the 100th meridian west 
longitude. (1) Surface coal mining operations conducted in or adjacent 
to alluvial valley floors shall be planned and conducted so as to 
preserve the essential hydrologic functions of these alluvial valley 
floors throughout the mining and reclamation process. These functions 
shall be preserved by maintaining or reestablishing those hydrologic and 
biologic characteristics of the alluvial valley floor that are necessary 
to support the functions. The permittee shall provide information to the 
regulatory authority as required in paragraph (j)(3) of this section to 
allow identification of essential hydrologic functions and demonstrate 
that the functions will be preserved. The characteristics of an alluvial 
valley floor to be considered include, but are not limited to--
    (i) The longitudinal profile (gradient), cross-sectional shape, and 
other channel characteristics of streams that have formed within the 
alluvial valley floor and that provide for maintenance of the prevailing 
conditions of surface flow;
    (ii) Aquifers (including capillary zones and perched water zones) 
and confining beds within the mined area which provide for storage, 
transmission, and regulation of natural ground water and surface water 
that supply the alluvial valley floors;
    (iii) Quantity and quality of surface and ground water that supply 
alluvial valley floors;
    (iv) Depth to and seasonal fluctuations of ground water beneath 
alluvial valley floors;
    (v) Configuration and stability of the land surface in the flood 
plain and adjacent low terraces in alluvial valley floors as they allow 
or facilitate irrigation with flood waters or subirrigation and maintain 
erosional equilibrium; and
    (vi) Moisture-holding capacity of soils (or plant growth medium) 
within the alluvial valley floors, and physical and chemical 
characteristics of the subsoil which provide for sustained vegetation 
growth or cover through dry months.
    (2) Surface coal mining operations located west of the 100th 
meridian west longitude shall not interrupt, discontinue, or preclude 
farming on alluvial valley floors and shall not materially damage the 
quantity or quality of surface or ground water that supplies these 
valley floors unless the premining land use has been undeveloped 
rangeland which is not significant to farming on the alluvial valley 
floors or unless the area of affected alluvial valley floor is small and 
provides negligible support for the production from one or more farms. 
This paragraph (j)(2) does not apply to those surface coal mining 
operations that--
    (i) Were in production in the year preceding August 3, 1977, were 
located in or adjacent to an alluvial valley floor, and produced coal in 
commercial quantities during the year preceding August 3, 1977; or

[[Page 79]]

    (ii) Had specific permit approval by the State regulatory authority 
before August 3, 1977, to conduct surface coal mining operations for an 
area within an alluvial valley floor.
    (3)(i) Before surface mining and reclamation operations authorized 
under paragraph (j)(2) of this section may be issued a new revised or 
amended permit, the permittee shall submit, for regulatory authority 
approval, detailed surveys and baseline data to establish standards 
against which the requirements of paragraph (j)(1) of this section may 
be measured and from which the degree of material damage to the quantity 
and quality of surface and ground water that supply the alluvial valley 
floors may be assessed. The surveys and date shall include--
    (A) A map at a scale determined by the regulatory authority, showing 
the location and configuration of the alluvial valley floor;
    (B) Baseline data covering a full water year for each of the 
hydrologic functions identified in paragraph (j)(1) of this section;
    (C) Plans showing how the operation will avoid, during mining and 
reclamation, interruption, discontinuance, or preclusion of farming on 
the alluvial valley floors and will not materially damage the quantity 
or quality of water in surface and ground water systems that supply such 
valley floors;
    (D) Historic land use data for the proposed permit area and for 
farms to be affected; and
    (E) Such other data as the regulatory authority may require.
    (ii) Surface mining operations which qualify for the exceptions in 
paragraph (j)(2) of this section are not required to submit the plans 
prescribed in paragraph (j)(3)(i)(C) of this section.
    (4) The holder of a Federal coal lease or the fee holder of any coal 
deposit located within or adjacent to an alluvial valley floor west of 
the 100th meridian west from which coal was not produced in commercial 
quantities between August 3, 1976, and August 3, 1977, and for which no 
specific permit by the appropriate State or Federal regulatory authority 
to conduct surface coal mining operations in the alluvial valley floors 
has been obtained, may be entitled to an exchange of the Federal coal 
lease for a lease of other Federal coal deposits under section 510(b)(5) 
of the Act, or to the conveyance by the Secretary of fee title to other 
available Federal coal deposits in exchange for the fee title to such 
deposits under section 206 of the Federal Land Policy and Management Act 
of 1976 (90 Stat. 2743), if the Secretary determines that substantial 
financial and legal commitments were made by the operator prior to 
January 1, 1977, in connection with surface coal mining operations on 
such lands.
    (k) Permanent impoundments. The permittee may construct, if 
authorized by the regulatory agency pursuant to this paragraph and Sec. 
715.13, permanent water impoundments on mining sites as a part of 
reclamation activities only when they are adequately demonstrated to be 
incompliance with Sec. Sec. 715.13 and 715.14 in addition to the 
following requirements:
    (1) The size of the impoundment is adequate for its intended 
purposes.
    (2) The impoundment dam construction is designed to achieve 
necessary stability with an adequate margin of safety compatible with 
that of structures constructed under Pub. L. 83-566 (16 U.S.C. 1006).
    (3) The quality of the impounded water will be suitable on a 
permanent basis for its intended use and discharges from the impoundment 
will not degrade the quality of receiving waters below the water quality 
standards established pursuant to applicable Federal and State law.
    (4) The level of water will be reasonably stable.
    (5) Final grading will comply with the provisions of Sec. 715.14 
and will provide adequate safety and access for proposed water users.
    (6) Water impoundments will not result in the diminution of the 
quality or quantity of water used by adjacent or surrounding landowners 
for agricultural, industrial, recreational, or domestic uses.
    (l) Hydrologic impact of roads--(1) General. Access and haul roads 
and associated bridges, culverts, ditches, and road rights-of-way shall 
be constructed, maintained, and reclaimed to prevent additional 
contributions of suspended solids to streamflow, or to runoff outside 
the permit area to the

[[Page 80]]

extent possible, using the best technology currently available. In no 
event shall the contributions be in excess of requirements set by 
applicable State or Federal law. All access and haul roads shall be 
removed and the land affected regraded and revegetated consistent with 
the requirements of Sec. Sec. 715.14 and 715.20, unless retention of a 
road is approved as part of a postmining land use under Sec. 715.13 as 
being nessary to support the postmining land use or necessary to 
adequately control erosion and the necessary maintenance is assured.
    (2) Construction. (i) All roads, insofar as possible, shall be 
located on ridges or on the available flatter and more stable slopes to 
minimize erosion. Stream fords are prohibited unless they are 
specifically approved by the regulatory authority as temporary routes 
across dry streams that will not adversely affect sedimentation and that 
will not be used for coal haulage. Other stream crossings shall be made 
using bridges, culverts or other structures designed and constructed to 
meet the requirements of this paragraph. Roads shall not be located in 
active stream channels nor shall they be constructed or maintained in a 
manner that increases erosion or causes significant sedimentation or 
flooding. However, nothing in this paragraph will be construed to 
prohibit relocation of stream channels in accordance with paragraph (d) 
of this section.
    (ii) In order to minimize erosion and subsequent disturbances of the 
hydrologic balance, roads shall be constructed in compliance with the 
following grade restrictions or other grades determined by the 
regulatory authority to be necessary to control erosion:
    (A) The overall sustained grade shall not exceed 1v:10h (10 
percent).
    (B) The maximum grade greater than 10 percent shall not exceed 
1v:6.5h (15 percent) for more than 300 feet.
    (C) There shall not be more than 300 feet of grade exceeding 10 
percent within each 1,000 feet.
    (iii) All access and haul roads shall be adequately drained using 
structures such as, but not limited to, ditches, water barriers, cross 
drains, and ditch relief drains. For access and haul roads that are to 
be maintained for more than 1 year, water-control structures shall be 
designed with a discharge capacity capable of passing the peak runoff 
from a 10-year, 24-hour precipitation event. Drainage pipes and culverts 
shall be constructed to avoid plugging or collapse and erosion at inlets 
and outlets. Drainage ditches shall be provided at the toe of all cut 
slopes formed by construction of roads. Trash racks and debris basins 
shall be installed in the drainage ditches wherever debris from the 
drainage area could impair the functions of drainage and sediment 
control structures. Ditch relief and cross drains shall be spaced 
according to grade. Effluent limitations of paragraph (a) of this 
section shall not apply to drainage from access and hauls roads located 
outside the disturbed area as defined in this section unless otherwise 
specified by the regulatory authority.
    (iv) Access and haul roads shall be surfaced with durable material. 
Toxic- or acid-forming substances shall not be used. Vegetation may be 
cleared only for the essential width necessary for road and associated 
ditch construction and to serve traffic needs.
    (3) Maintenance. (i) Access and haul roads shall be routinely 
maintained by means such as, but not limited to, wetting, scraping or 
surfacing.
    (ii) Ditches, culverts, drains, trash racks, debris basins and other 
structures serving to drain access and haul roads shall not be 
restricted or blocked in any manner that impedes drainage or adversely 
affects the intended purpose of the structure.
    (m) Hydrologic impacts of other transport facilities. Railroad 
loops, spurs, sidings and other transport facilities shall be 
constructed, maintained and reclaimed to control diminution or 
degradation of water quality and quantity and to prevent additional 
contributions of suspended solids to streamflow, or to run-off outside 
the permit area to the extent possible, using the best technology 
currently available. In no event shall contributions be in excess of 
requirements set by applicable State or Federal law.

[[Page 81]]

    (n) Discharge of waters into underground mines. Surface and ground 
waters shall not be discharged or diverted into underground mine 
workings.

(Secs. 101, 102, 201, 501, 503-510, 515-517, 523, and 701, Surface 
Mining Act of 1977, Pub. L. 95-87), 30 U.S.C. 1201, 1202, 1211, 1251-
1260, 1265-1267, 1273, 1291))

[42 FR 62680, Dec. 13, 1977; 43 FR 2721, Jan. 19, 1978; 43 FR 3705, Jan. 
27, 1978, as amended at 43 FR 8091, Feb. 27, 1978; 43 FR 21458, May 18, 
1978; 44 FR 30631, May 25, 1979; 44 FR 36887, June 22, 1979; 44 FR 
77451, Dec. 31, 1979; 45 FR 6913, Jan. 30, 1980]

    Effective Date Note: A document published at 44 FR 77451, Dec. 31, 
1979 temporarily suspended Sec. 715.17(a)(1) insofar as it applies to 
total suspended solids (TSS) discharges.



Sec. 715.18  Dams constructed of or impounding waste material.

    (a) General. No waste material shall be used in or impounded by 
existing or new dams without the approval of the regulatory authority. 
The permittee shall design, locate, construct, operate, maintain, 
modify, and abandon or remove all dams (used either temporarily or 
permanently) constructed of waste materials, in accordance with the 
requirements of this section.
    (b) Construction of dams. (1) Waste shall not be used in the 
construction of dams unless demonstrated through appropriate engineering 
analysis, to have no adverse effect on stability.
    (2) Plans for dams subject to this section, and also including those 
dams that do not meet the size or other criteria of Sec. 77.216(a) of 
this title, shall be approved by the regulatory authority before 
construction and shall contain the minimum plan requirements established 
by the Mining Enforcement and Safety Administration pursuant to Sec. 
77.216-2 of this title.
    (3) Construction requirements are as follows:
    (i) Design shall be based on the flood from the probable maximum 
precipitation event unless the permittee shows that the failure of the 
impounding structure would not cause loss of life or severely damage 
property or the environment, in which case depending on site conditions, 
a design based on a precipitations event of no less than 100-year 
frequency may be approved by the regulatory authority.
    (ii) The design freeboard distance between the lowest point on the 
embankment crest and the maximum water elevation shall be at least 3 
feet to avoid overtopping by wind and wave action.
    (iii) Dams shall have minimum safety factors as follows:

------------------------------------------------------------------------
                                                               Minimum
               Case                   Loading condition        safety
                                                               factor
------------------------------------------------------------------------
I................................  End of construction....           1.3
II...............................  Partial pool with                 1.5
                                    steady seepage
                                    saturation.
III..............................  Steady seepage from               1.5
                                    spillway or decant
                                    crest.
IV...............................  Earthquake (cases II              1.0
                                    and III with seismic
                                    loading).
------------------------------------------------------------------------

    (iv) The dam, foundation, and abutments shall be stable under all 
conditions of construction and operation of the impoundment. Sufficient 
foundation investigations and laboratory testing shall be performed to 
determine the factors of safety of the dam for all loading conditions in 
paragraph (b)(3)(iii) of this section and for all increments of 
construction.
    (v) Seepage through the dam, foundation, and abutments shall be 
controlled to prevent excessive uplift pressures, internal erosion, 
sloughing, removal of material by solution, or erosion of material by 
loss into cracks, joints, and cavities. This may require the use of 
impervious blankets, pervious drainage zones or blankets, toe drains, 
relief wells, or dental concreting of jointed rock surface in contact 
with embankment materials.
    (vi) Allowances shall be made for settlement of the dams and the 
foundation so that the freeboard will be maintained.
    (vii) Impoundments created by dams of waste materials shall be 
subject to a minimum drawdown criteria that allows the facility to be 
evacuated by spillways or decants of 90 percent of the volume of water 
stored during the design precipitation event within 10 days.
    (viii) During construction of dams subject to this section, the 
structures shall be periodically inspected by a

[[Page 82]]

registered professional engineer to ensure construction according to the 
approved design. On completion of construction, the structure shall be 
certified by a registered professional engineer experienced in the field 
of dam construction as having been constructed in accordance with 
accepted professional practice and the approved design.
    (ix) A permanent identification marker, at least 6 feet high that 
shows the dam number assigned pursuant to Sec. 77.216-1 of this title 
and the name of the person operating or controlling the dam, shall be 
located on or immediately adjacent to each dam within 30 days of 
certification of design pursuant to this section.
    (4) All dams, including those not meeting the size or other criteria 
of Sec. 77.216 (a) of this title, shall be routinely inspected by a 
registered professional engineer, or someone under the supervision of a 
registered professional engineer, in accordance with Mining Enforcement 
and Safety Administration regulations pursuant to Sec. 77.216-3 of this 
title.
    (5) All dams shall be routinely maintained. Vegetative growth shall 
be cut where necessary to facilitate inspection and repairs. Ditches and 
spillways shall be cleaned. Any combustible materials present on the 
surface, other than that used for surface stability such as mulch or dry 
vegetation, shall be removed and any other appropriate maintenance 
procedures followed.
    (6) All dams subject to this section shall be certified annually as 
having been constructed and modified in accordance with current prudent 
engineering practices to minimize the possibility of failures, Any 
changes in the geometry of the impounding structure shall be highlighted 
and included in the annual certification report. These certifications 
shall include a report on existing and required monitoring procedures 
and instrumentation, the average and maximum depths and elevations of 
any impounded waters over the past year, existing storage capacity of 
impounding structures, any fires occurring in the material over the past 
year and any other aspects of the structures affecting their stability.
    (7) Any enlargements, reductions in size, reconstruction or other 
modification of the dams shall be approved by the regulatory authority 
before construction begins.
    (8) All dams shall be removed and the disturbed areas regraded, 
revegetated, and stabilized before the release of bond unless the 
regulatory authority approves retention of such dams as being compatible 
with an approved postmining land use (Sec. 715.13).



Sec. 715.19  Use of explosives.

    (a) General. (1) The permittee shall comply with all applicable 
local, State, and Federal laws and regulations and the requirements of 
this section in the storage, handling, preparation, and use of 
explosives.
    (2) Blasting operations that use more than the equivalent of 5 
pounds of TNT shall be conducted according to a time schedule approved 
by the regulatory authority.
    (3) All blasting operations shall be conducted by experienced, 
trained, and competent persons who understand the hazards involved. 
Persons working with explosive materials shall--
    (i) Have demonstrated a knowledge of, and a willingness to comply 
with, safety and security requirements;
    (ii) Be capable of using mature judgment in all situations;
    (iii) Be in good physical condition and not addicted to intoxicants, 
narcotics, or other similar types of drugs;
    (iv) Possess current knowledge of the local, State and Federal laws 
and regulations applicable to his work; and
    (v) Have obtained a certificate of completion of training and 
qualification as required by State law or the regulatory authority.
    (b) Preblasting survey. (1) On the request to the regulatory 
authority of a resident or owner of a manmade dwelling or structure that 
is located within one-half mile of any part of the permit area, the 
permittee shall conduct a preblasting survey of the dwelling or 
structure and submit a report of the survey to the regulatory authority.
    (2) Personnel approved by the regulatory authority shall conduct the 
survey to determine the condition of the dwelling or structure and to 
document any preblasting damage and other

[[Page 83]]

physical factors that could reasonably be affected by the blasting. 
Assessments of structures such as pipes, cables, transmission lines, and 
wells and other water systems shall be limited to surface condition and 
other readily available data. Special attention shall be given to the 
preblasting condition of wells and other water systems used for human, 
animal, or agricultural purposes and to the quantity and quality of the 
water.
    (3) A written report of the survey shall be prepared and signed by 
the person or persons who conducted the survey and prepared the written 
report. The report shall include recommendations of any special 
conditions or proposed adjustments to the blasting procedures outlined 
in paragraph (e) of this section which should be incorporated into the 
blasting plan to prevent damage. Copies of the report shall be provided 
to the person requesting the survey and to the regulatory authority.
    (c) Public notice of blasting schedule. At least 10 days, but not 
more than 20 days before beginning a blasting program in which 
explosives that use more than the equivalent of 5 pounds of TNT are 
detonated, the permittee shall publish a blasting schedule in a 
newspaper of general circulation in the locality of the proposed site. 
Copies of the schedule shall be distributed by mail to local governments 
and public utilities and to each residence within one-half mile of the 
blasting sites described in the schedule. The permittee shall republish 
and redistribute the schedule by mail at least every 3 months. Blasting 
schedules shall not be so general as to cover all working hours but 
shall identify as accurately as possible the location of the blasting 
sites and the time periods when blasting will occur. The blasting 
schedule shall contain at a minimum--
    (1) Identification of the specific areas in which blasting will take 
place. The specific blasting areas described shall not be larger than 
300 acres with a generally contiguous border;
    (2) Dates and times when explosives are to be detonated expressed in 
not more than 4-hour increments;
    (3) Methods to be used to control access to the blasting area;
    (4) Types of audible warnings and all-clear signals to be used 
before and after blasting; and
    (5) A description of possible emergency situations (defined in 
paragraph (e)(1)(ii) of this section), which have been approved by the 
regulatory authority, when it may be necessary to blast at times other 
than those described in the schedule.
    (d) Public notice of changes to blasting schedules. Before blasting 
in areas not covered by a previous schedule or whenever the proposed 
frequency of individual detonations are materially changed, the 
permittee shall prepare a revised blasting schedule in accordance with 
the procedures in paragraph (c) of this section. If the change involves 
only a temporary adjustment of the frequency of blasts, the permittee 
may use alternate methods to notify the governmental bodies and 
individuals to whom the original schedule was sent.
    (e) Blasting procedures--(1) General. (i) All blasting shall be 
conducted only during the daytime hours, defined as sunrise until 
sunset. Based on public requests or other considerations, including the 
proximity to residential areas, the regulatory authority may specify 
more restrictive time periods.
    (ii) Blasting may not be conducted at times different from those 
announced in the blasting schedule except in emergency situations where 
rain, lightning, other atmospheric conditions, or operator or public 
safety requires unscheduled detonation.
    (iii) Warning and all-clear signals of different character that are 
audible within a range of one-half mile from the point of the blast 
shall be given. All persons within the permit area shall be notified of 
the meaning of the signals through appropriate instructions and signs 
posted as required by Sec. 715.12.
    (iv) Access to the blasting area shall be regulated to protect the 
public and livestock from the effects of blasting. Access to the 
blasting area shall be controlled to prevent unauthorized entry at least 
10 minutes before each blast and until the permittee's authorized 
representative has determined that no unusual circumstances such as 
imminent slides or undetonated charges exist and access to and travel

[[Page 84]]

in or through the area can safely resume.
    (v) Areas in which charged holes are awaiting firing shall be 
guarded, barricaded and posted, or flagged against unauthorized entry.
    (vi) Airblast shall be controlled such that it does not exceed 128 
decibel linear-peak at any manmade dwelling or structure located within 
one-half mile of the permit area.
    (vii) Except where lesser distances are approved by the regulatory 
authority (based upon a preblasting survey or other appropriate 
investigations) blasting shall not be conducted within--
    (A) 1,000 feet of any building used as a dwelling, school, church, 
hospital, or nursing facility;
    (B) 500 feet of facilities including, but not limited to, disposal 
wells, petroleum or gas-storage facilities, municipal water-storage 
facilities, fluid-transmission pipelines, gas or oil-collection lines, 
or water and sewage lines; and
    (C) 500 feet of an underground mine not totally abandoned except 
with the concurrence of the Mining Enforcement and Safety 
Administration.
    (2) Blasting standards. (i) Blasting shall be conducted to prevent 
injury to persons, damage to public or private property outside the 
permit area, adverse impacts on any underground mine, and change in the 
course, channel, or availability of ground or surface waters outside the 
permit area.
    (ii) Ground vibration--(A) General. In all blasting operations, 
except as otherwise authorized in paragraph (e)(2)(iii) of this section, 
the maximum ground vibration shall not exceed a value approved by the 
regulatory authority. It shall be established in accordance with the 
maximum peak-particle-velocity limit of paragraph (e)(2)(ii)(B), the 
scaled-distance equation of paragraph (e)(2)(ii)(C), or the blasting-
level chart of paragraph (e)(2)(ii)(D), or such other standard 
established under paragraph (e)(2)(ii)(E), of this section. All 
structures in the vicinity of the blasting area, not listed in paragraph 
(e)(2)(ii)(B), of this section, such as water towers, pipelines and 
other utilities, tunnels, dams, impoundments, and underground mines, 
shall be protected from damage by establishment of a maximum allowable 
limit on the ground vibration, submitted by the operator and approved by 
the regulatory authority before the initiation of blasting.
    (B) Maximum peak-particle velocity. (1) The maximum ground vibration 
shall not exceed the following limits at the location of any dwelling, 
public building, school, church, or community or institutional building 
outside the permit area.

------------------------------------------------------------------------
                                                  Maximum
                                                 allowable     Scaled-
                                                    peak       distance
                                                  particle    factor to
                                                velocity (V   be applied
   Distance (D) from blasting site, in feet       max) for     without
                                                   ground      seismic
                                                 vibration,   monitoring
                                                 in inches/      \2\
                                                 second \1\
------------------------------------------------------------------------
0 to 300......................................         1.25           50
301 to 5,000..................................         1.00           55
5,001 and beyond..............................         0.75           65
------------------------------------------------------------------------
\1\ Ground vibration shall be measured as particle velocity. Particle
  velocity shall be recorded in three mutually perpendicular directions.
  The maximum allowable peak particle velocity shall apply to each of
  the three measurements.
\2\ Applicable to the scaled-distance equation of paragraph
  (e)(2)(ii)(C)(1) of this section.

    (2) A seismographic record shall be provided for each blast.
    (C) Scaled-distance equation. (1) The operator may use the scaled-
distance equation, W=(D/Ds)\2\, to determine the allowable charge weight 
of explosives to be detonated in any 8-millisecond period without 
seismic monitoring; where W=the maximum weight of explosives, in pounds; 
D=the distance, in feet, from the blasting site to the nearest protected 
structure; and Ds=the scaled-distance factor, which may initially be 
approved by the regulatory authority using the values for scaled-
distance factor listed in paragraph (e)(2)(ii)(B)(1), of this section.
    (2) The development of a modified scaled-distance factor may be 
authorized by the regulatory authority on receipt of a written request 
by the operator, supported by seismographic records of blasting at the 
minesite. The modified scaled-distance factor shall be determined such 
that the particle velocity of the predicted ground vibration will not 
exceed the prescribed maximum allowable peak particle velocity of 
paragraph (e)(2)(B)(1) of this section at a 95-percent confidence level.

[[Page 85]]

    (D) Blasting-level chart. (1) An operator may use the ground-
vibration limits in Figure 1 to determine the maximum allowable ground 
vibration.
[GRAPHIC] [TIFF OMITTED] TC21OC91.049

    (2 ) If the Figure 1 limits are used, a seismographic record 
including both particle-velocity and vibration-frequency levels shall be 
provided for each blast. The method for the analysis of the predominant 
frequency contained in the blasting records shall be approved by the 
regulatory authority before application of this alternative blasting 
criterion.
    (E) The maximum allowable ground vibration shall be reduced by the 
regulatory authority beyond the limits otherwise provided by this 
section, if determined necessary to provide damage protection.
    (F) The regulatory authority may require an operator to conduct 
seismic monitoring of any or all blasts and may specify the location at 
which the measurements are taken and the degree of detail necessary in 
the measurement.
    (iii) If blasting is conducted in accordance with paragraph 
(e)(2)(i) of this section, the maximum ground-vibration and airblast 
standards shall not apply at the following locations:

[[Page 86]]

    (A) At structures owned by the permittee and not leased to another 
person.
    (B) At structures owned by the permittee and leased to another 
person, if a written waiver by the lessee is submitted to the regulatory 
authority before blasting.
    (3) Records of blasting operations. A record of each blast, 
including seismograph reports, shall be retained for at least 3 years 
and shall be available for inspection by the regulatory authority and 
the public on request. The record shall contain the following data--
    (i) Name of permittee, operator, or other person conducting the 
blast;
    (ii) Location, date, and time of blast;
    (iii) Name, signature, and license number of blaster-in-charge;
    (iv) Direction and distance, in feet, to nearest dwelling, school, 
church, or commercial or institutional building neither owned or leased 
by the permittee;
    (v) Weather conditions;
    (vi) Type of material blasted;
    (vii) Number of holes, burden, and spacing;
    (viii) Diameter and depth of holes;
    (ix) Types of explosives used;
    (x) Total weight of explosives used;
    (xi) Maximum weight of explosives detonated within any 8 millisecond 
period;
    (xii) Maximum number of holes detonated within any 8 millisecond 
period;
    (xiii) Methods of firing and type of circuit;
    (xiv) Type and length of stemming;
    (xv) If mats or other protections were used;
    (xvi) Type of delay detonator used, and delay periods used;
    (xvii) Seismograph records, where required, including--
    (A) Seismograph reading, including exact location of seismograph and 
its distance from the blast;
    (B) Name of person taking the seismograph reading; and
    (C) Name of person and firm analyzing the seismograph record.

[42 FR 62680, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1978, as amended at 48 
FR 9805, Mar. 8, 1983]



Sec. 715.20  Revegetation.

    (a) General. (1) The permittee shall establish on all land that has 
been disturbed, a diverse, effective, and permanent vegetative cover of 
species native to the area of disturbed land or species that will 
support the planned postmining uses of the land approved according to 
Sec. 715.13. For areas designated as prime farmland, the reclamation 
procedures of Sec. 716.7 shall apply.
    (2) Revegetation shall be carried out in a manner that encourages a 
prompt vegetative cover and recovery of productivity levels compatible 
with approved land uses. The vegetative cover shall be capable of 
stabilizing the soil surface with respect to erosion. All disturbed 
lands, except water areas and surface areas of roads that are approved 
as a part of the postmining land use, shall be seeded or planted to 
achieve a vegetative cover of the same seasonal variety native to the 
area of disturbed land. If both the pre- and postmining land use is 
intensive agriculture, planting of the crops normally grown will meet 
the requirement. Vegetative cover will be considered of the same 
seasonal variety when it consists of a mixture of species of equal or 
superior utility for the intended land use when compared with the 
utility of naturally occurring vegetation during each season of the 
year.
    (3) On Federal lands, the surface management agency shall be 
consulted for approval prior to revegetation regarding what species are 
selected, and following revegetation, to determine when the area is 
ready to be used.
    (b) Use of introduced species. Introduced species may be substituted 
for native species only if appropriate field trials have demonstrated 
that the introduced species are of equal or superior utility for the 
approved postmining land use, or are necessary to achieve a quick, 
temporary, and stabilizing cover. Such species substitution shall be 
approved by the regulatory authority. Introduced species shall meet 
applicable State and Federal seed or introduced species statutes, and 
shall not include poisonous or potentially toxic species.
    (c) Timing of revegetation. Seeding and planting of disturbed areas 
shall be

[[Page 87]]

conducted during the first normal period for favorable planting 
conditions after final preparation. The normal period for favorable 
planting shall be that planting time generally accepted locally for the 
type of plant materials selected to meet specific site conditions and 
climate. Any disturbed areas, except water areas and surface areas or 
roads that are approved under Sec. 715.13 as part of the postmining 
land use, which have been graded shall be seeded with a temporary cover 
of small grains, grasses, or legumes to control erosion until an 
adequate permanent cover is established. When rills or gullies, that 
would preclude the successful establishment of vegetation or the 
achievement of the postmining land use, form in regraded topsoil and 
overburden materials as specified in Sec. 715.14, additional regrading 
or other stabilization practices will be required before seeding and 
planting.
    (d) Mulching. Mulch shall be used on all regraded and topsoiled 
areas to control erosion, to promote germination of seeds, and to 
increase the moisture retention of the soil. Mulch shall be anchored to 
the soil surface where appropriate, to insure effective protection of 
the soil and vegetation. Mulch means vegetation residues or other 
suitable materials that aid in soil stabilization and soil moisture 
conservation, thus providing micro-climatic conditions suitable for 
germination and growth, and do not interfere with the postmining use of 
the land. Annual grains such as oats, rye and wheat may be used instead 
of mulch when it is shown to the satisfaction of the regulatory 
authority that the substituted grains will provide adequate stability 
and that they will later be replaced by species approved for the 
postmining use.
    (e) Methods of revegetation. (1) The permittee shall use technical 
publications or the results of laboratory and field tests approved by 
the regulatory authority to determine the varieties, species, seeding 
rates, and soil amendment practices essential for establishment and 
self-regeneration of vegetation. The regulatory authority shall approve 
species selection and planting plans.
    (2) Where hayland, pasture, or range is to be the postmining land 
use, the species of grasses, legumes, browse, trees, or forbes for 
seeding or planting and their pattern of distribution shall be selected 
by the permittee to provide a diverse, effective, and permanent 
vegetative cover with the seasonal variety, succession, distribution, 
and regenerative capabilities native to the area. Livestock grazing will 
not be allowed on reclaimed land until the seedlings are established and 
can sustain managed grazing. The regulatory authority, in consultation 
with the permittee and the landowner or in concurrence with the 
governmental landmanaging agency having jurisdiction over the surface, 
shall determine when the revegetated area is ready for livestock 
grazing.
    (3) Where forest is to be the postmining land use, the permittee 
shall plant trees adapted for local site conditions and climate. Trees 
shall be planted in combination with an herbaceous cover of grains, 
grasses, legumes, forbs, or woody plants to provide a diverse, 
effective, and permanent vegetation cover with the seasonal variety, 
sucession, and regeneration capabilities native to the area.
    (4) Where wildlife habitat is to be included in the postmining land 
use, the permittee shall consult with appropriate State and Federal 
wildlife and land management agencies and shall select those species 
that will fulfill the needs of wildlife, including food, water, cover, 
and space. Plant groupings and water resources shall be spaced and 
distributed to fulfill the requirements of wildlife.
    (f) Standards for measuring success of revegetation. (1) Success of 
revegetation shall be measured on the basis of reference areas approved 
by the regulatory authority. Reference areas mean land units of varying 
size and shape identified and maintained under appropriate management 
for the purpose of measuring ground cover, productivity and species 
diversity that are produced naturally. The reference areas must be 
representative of geology, soils, slope, aspect, and vegetation in the 
permit area. Management of the reference area shall be comparable to 
that which will be required for the approved

[[Page 88]]

postmining land use of the area to be mined. The regulatory authority 
shall approve the estimating techniques that will be used to determine 
the degree of success in the revegetated area.
    (2) The ground cover of living plants on the revegetated area shall 
be equal to the ground cover of living plants of the approved reference 
area for a minimum of two growing seasons. The ground cover shall not be 
considered equal if it is less than 90 percent of the ground cover of 
the reference area for any significant portion of the mined area. 
Exceptions may be authorized by the regulatory authority for--
    (i) Previously mined areas that were not reclaimed to the standards 
required by this chapter prior to the effective date of these 
regulations. The ground cover of living plants for such areas shall not 
be less than required to control erosion, and in no case less than that 
existing before redisturbance.
    (ii) Areas to be developed immediately for industrial or residential 
use. The ground cover of living plants shall not be less than required 
to control erosion. As used in this paragraph, immediately means less 
than 2 years after regrading has been completed for the area to be used; 
and
    (iii) Areas to be used for agricultural cropland purposes. Success 
in revegetation of cropland shall be determined on the basis of crop 
production from the mined area compared to the reference area. Crop 
production from the mined area shall be equal to that of the approved 
reference area for a minimum of two growing seasons. Production shall 
not be considered equal if it is less than 90 percent of the production 
of the reference area for any significant portion of the mined area.
    (3) Species diversity, distribution, seasonal variety, and vigor 
shall be evaluated on the basis of the results which could reasonably be 
expected using the methods of revegetation approved under paragraph (e) 
of this section.
    (g) Seeding of stockpiled topsoil. Topsoil stockpiled in compliance 
with Sec. 715.16 must be seeded or planted with an effective cover of 
nonnoxious, quick growing annual and perennial plants during the first 
normal period for favorable planting conditions or protected by other 
approved measures as specified in Sec. 715.16.



Sec. 715.200  Interpretative rules related to general performance standards.

    The following interpretations of rules promulgated in part 715 of 
this chapter have been adopted by the Office of Surface Mining 
Reclamation and Enforcement.
    (a)-(b) [Reserved]
    (c) Interpretation of Sec. 715.16(a)(4)--Topsoil Removal. (1) 
Results of physical and chemical analyses of topsoil and selected 
overburden materials to demonstrate that the selected overburden 
materials or overburden materials/topsoil mixture is more suitable for 
restoring land capability and productivity than the available topsoil, 
provided the analyses, trials, or tests are certified by a qualified 
soil scientist or agronomist, may be obtained from any one or a 
combination of the following sources:
    (i) U.S. Department of Agriculture Soil Conservation Service 
published data based on established soil series;
    (ii) U.S. Department of Agriculture Soil Conservation Service 
Technical Guides;
    (iii) State agricultural agency, university, Tennessee Valley 
Authority, Bureau of Land Management or U.S. Department of Agriculture 
Forest Service published data based on soil series properties and 
behavior; or
    (iv) Results of physical and chemical analyses, field site trials, 
or greenhouse tests of the topsoil and overburden materials (soil 
series) from the permit area.
    (2) If the operator demonstrates through soil survey or other data 
that the topsoil and unconsolidated material are insufficient and 
substitute materials will be used, only the substitute materials must be 
analyzed in accordance with 30 CFR 715.16(a)(4)(i).

(Sec. 501, 502, 504, 508, 515, 516, Pub. L. 95-87, 91 Stat. 467, 468, 
471, 478, 492, 496 (30 U.S.C. 1251, 1252, 1254, 1258, 1265, 1266))

[45 FR 26000, Apr. 16, 1980 and 45 FR 39447, June 10, 1980, as amended 
at 45 FR 73946, Nov. 7, 1980]

[[Page 89]]



PART 716_SPECIAL PERFORMANCE STANDARDS--Table of Contents



Sec.
716.1 General obligations.
716.2 Steep-slope mining.
716.3 Mountaintop removal.
716.4 Special bituminous coal mines.
716.5 Anthracite coal mines.
716.6 Coal mines in Alaska.
716.7 Prime farmland.
716.10 Information collection.

    Authority: Secs. 201, 501, 527 and 529, Pub. L. 95-87, 91 Stat. 445 
(30 U.S.C. 1201).

    Source: 42 FR 62691, Dec. 13, 1977, unless otherwise noted.



Sec. 716.1  General obligations.

    (a) This part establishes special initial performance standards that 
apply in the following special circumstances--
    (1) Sec. 716.2 applies to surface coal mining operations on steep 
slopes.
    (2) Sec. 716.3 applies to surface coal mining operations involving 
mountaintop removal.
    (3) Sec. 716.4 applies to special bituminous coal mines.
    (4) Sec. 716.5 applies to anthracite surface coal mining 
operations.
    (5) Sec. 716.6 applies to surface coal mining operations in Alaska.
    (6) Sec. 716.7 applies to surface coal mining operations on prime 
farmlands.
    (b) All surface coal mining and reclamation operations subject to 
this part shall comply with the applicable special performance standards 
in this part. Such operations shall also comply with all general 
performance standards in part 715 of this chapter unless specifically 
exempted in this part from the requirements of part 715.



Sec. 716.2  Steep-slope mining.

    The permittee conducting surface coal mining and reclamation 
operations on natural slopes that exceed 20 degrees, or on lesser slopes 
that require measures to protect the area from disturbance, as 
determined by the regulatory authority after consideration of soils, 
climate, the method of operation, geology, and other regional 
characteristics, shall meet the following performance standards. The 
standards of this section do not apply where mining is done on a flat or 
gently rolling terrain with an occasional steep slope through which the 
mining proceeds and leaves a plain or predominantly flat area; or where 
the mining is governed by Sec. 716.3.
    (a) Spoil, waste materials or debris, including that from clearing 
and grubbing, and abandoned or disabled equipment, shall not be placed 
or allowed to remain on the downslope.
    (b) The highwall shall be completely covered with spoil and the 
disturbed are a graded to comply with the provisions of Sec. 715.14 of 
this chapter. Land above the highwall shall not be disturbed unless the 
regulatory authority finds that the disturbance will facilitate 
compliance with the requirements of this section.
    (c) Material in excess of that required to meet the provisions of 
Sec. 715.14 of this chapter shall be disposed of in accordance with the 
requirements of Sec. 715.15 of this chapter.
    (d) Woody materials may be buried in the backfilled area only when 
burial does not cause, or add to, instability of the backfill. Woody 
materials may be chipped and distributed through the backfill when 
approved by the regulatory authority.
    (e) Variances from approximate original contour restoration 
requirements. (1) This section applies to surface coal mining operations 
on steep slopes where the operation is not to be reclaimed to achieve 
the approximate original contour and is not a mountaintop removal 
operation.
    (2) The objective of this subsection is to allow for a variance from 
the approximate original contour restoration requirements on steep 
slopes to--
    (i) Improve watershed control of the area; and
    (ii) Allow the land to be used for an industrial, commercial, 
residential, or public use, including recreational facilities.
    (3) The regulatory authority may grant a variance from the 
requirement for restoration of the affected lands to their approximate 
original contour only if it first finds, in writing, on the basis of a 
showing made by the permittee, that all of the following requirements 
are met:
    (i) The permittee has demonstrated that the purpose of the variance 
is to

[[Page 90]]

make the lands to be affected within the permit area suitable for an 
industrial, commercial, residential, or public use postmining land use 
and that the proposed industrial, commercial, residential, or public use 
is likely to occur.
    (ii) The proposed use, after consultation with the appropriate land-
use planning agencies, if any, constitutes an equal or better economic 
or public use.
    (iii) The permittee has demonstrated that compliance with the 
requirements for acceptable alternative postmining industrial, 
commercial, residential or public land uses of 30 CFR 715.13 has been 
achieved except for the requirement at Sec. 715.13(d)(3) and (4) to 
provide letters of commitment. The permittee must demonstrate to the 
regulatory authority that necessary public facilities are likely to be 
provided and that the plan is financially feasible.
    (iv) The permittee has demonstrated that the watershed of the area 
will be improved as compared to the condition of the watershed before 
mining. The watershed will be deemed improved only if--
    (A) There will be a reduction in the amount of total suspended 
solids or other pollutants discharged to ground or surface waters from 
the area as compared to such discharges; or, there will be reduced flood 
hazards or more even flow within the watershed containing the area due 
to reduction of the peak flow discharges from precipitation events or 
thaws; or any other criterion authority in the granting of the variance. 
While improving one or more variables, the permittee must also at least 
maintain the variables not improved at their premining levels;
    (B) The total volume of flows from the proposed affected lands, 
during every season of the year, will not vary in a way that adversely 
affects the ecology of any surface water or any existing or planned use 
of surface or ground water; and
    (C) The appropriate State environmental agency approves the plan.
    (v) The permittee has demonstrated that the owner of the surface of 
the lands within the permit area has knowingly requested, in writing, as 
a part of the application, that a variance be granted. The request shall 
be made separately from any surface owner consent given for the 
operation and shall show an understanding that the variance could not be 
granted without the surface owner's request.
    (vi) The proposal is designed and certified by a qualified 
registered professional engineer in conformance with professional 
standards established to assure the stability, drainage, and 
configuration necessary for the intended use of the site.
    (vii) All other requirements of the Act and these regulations will 
be met by the proposed operations.
    (4) Every permittee who obtains a variance under this subsection 
shall:
    (i) Backfill completely the highwall with spoil material, in a 
manner which results in a static factor of safety of at least 1.3 using 
general geotechnical analysis.
    (ii) Improve the watershed control of the area by reducing the peak 
flow from precipitation or thaw or reducing the total suspended solids 
or other pollutants in the surface water discharge during precipitation 
or thaw or by attaining the criteria approved by the regulatory 
authority in the granting of the variance. While improving one or more 
variables, the permittee must also at least maintain the variables not 
improved at their premining levels. The total volume of flow during 
every season of the year shall not vary in a way that adversely affects 
the ecology of any surface or ground water.
    (iii) Disturb land above the highwall only to the extent that the 
regulatory authority deems appropriate and approves as necessary to 
facilitate compliance with the provisions of this section. The 
regulatory authority may authorize such a disturbance above the highwall 
if it finds the disturbance is necessary to--
    (A) Blend the solid highwall and the backfilled material; or
    (B) Control surface runoff; or
    (C) Provide access to the area above the highwall.
    (iv) Place off the mine bench no more than the amount of spoil 
necessary to achieve the postmining land use, ensure the stability of 
spoil retained on the bench, and meet all other requirements of the Act 
and parts 710 through

[[Page 91]]

725 of this chapter. All spoil not retained on the bench shall be placed 
in accordance with the Act and these regulations.
    (5) The regulatory authority shall review every variance granted 
pursuant to this subsection not more than three years from the date of 
issuance of the permit to ensure that the proposed alternative 
postmining use is proceeding in accordance with the terms of the 
approved plan, unless the permittee affirmatively so demonstrates.

[42 FR 62691, Dec. 13, 1977, as amended at 45 FR 83168, Dec. 17, 1980]



Sec. 716.3  Mountaintop removal.

    (a) Surface coal mining and reclamation operations that remove 
entire coal seams running through the upper fraction of a mountain, 
ridge, or hill by removing all of the overburden and creating a level 
plateau or gently rolling contour with no highwalls remaining are exempt 
from the requirements of Sec. 715.14 of this chapter for achieving 
approximate original contour, if the following requirements are met:
    (1) An industrial, commercial, agricultural, residential, or public 
facility (including recreational facilities) use is proposed for the 
affected land.
    (2) The alternative land use criteria in Sec. 715.13(d) of this 
chapter are met and the proposal is approved by the regulatory 
authority.
    (3) All other applicable requirements of part 715 of this chapter 
can be met.
    (b) Surface coal mining and reclamation operations conducted under 
this section shall comply with the following standards:
    (1) An outcrop barrier of sufficient width consisting of the toe of 
the lowest coal seam, and its associated overburden shall be retained to 
prevent slides and erosion.
    (2) The final graded top plateau slopes on the mined area shall be 
less than 1v:5h so as to create a level plateau or gently rolling 
configuration and the outslopes of the plateau shall not exceed 1v:2h, 
except where engineering data substantiates and the regulatory authority 
finds that a minimum static safety factor of 1.5 will be attained.
    (3) The resulting level or gently rolling contour shall be graded to 
drain inward from the outslope except at specific points where it drains 
over the outslope in protected stable channels.
    (4) Damage to natural watercourses below the area to be mined shall 
be prevented.
    (5) Spoil shall be placed on the mountaintop bench as is necessary 
to achieve the postmining land use approved under Sec. 715.13 of this 
chapter. All excess spoil material not retained on the mountaintop shall 
be placed in accordance with the standards of Sec. 715.15 of this 
chapter.
    (c)(1) All permits giving approval for mountaintop removal shall be 
reviewed not more than 3 years from the date of issuance of the permit, 
unless the permittee affirmatively demonstrates and the regulatory 
authority finds that all operations are proceeding in accordance with 
the terms of the permit and applicable requirements of the Act and the 
regulations of this part. The terms of the permit shall be in accordance 
with the requirements of the Act and the regulations of this part.
    (2) The terms of a permit for mountaintop removal may be modified by 
the regulatory authority if it determines that more stringent measures 
are necessary to prevent or control slides and erosion, prevent damage 
to natural water courses, avoid water pollution, or to assure successful 
revegetation.



Sec. 716.4  Special bituminous coal mines.

    (a) Definition. Special bituminous coal surface mines as used in 
this section means those bituminous coal surface mines that are located 
in the State of Wyoming and that are being mined or will be mined 
according to the following criteria:
    (1) Excavation of the mine pit takes place on a relatively limited 
site for an extended period of time. For the purposes of this section, 
mine pit means an open-pit mine in which the surface opening is at least 
the full size of the excavation and has a contiguous border. The pit 
generally is quite deep and is formed by the removal of relatively large 
amounts of overburden to obtain lesser amounts of coal. The term as used 
in this section applies only to mining operations that extract coal

[[Page 92]]

from seams dipping 15 degrees or more from the horizontal.
    (2) Excavation of the mine pit follows a coal seam that inclines 15 
degrees or more from the horizontal, and as the excavation proceeds 
downward it expands laterally to maintain stability of the pitwall or as 
necessary to accommodate the orderly expansion of the total mining 
operations.
    (3)(i) Surface coal mining operations in the mine pit have taken 
place since January 1, 1972, and
    (A) Operations in the mine pit are removing more than one coal seam, 
and
    (B) Mining has begun on the deepest coal seam scheduled to be mined; 
or
    (ii) Surface coal mining operations which may be developed after 
August 3, 1977, and are conducted on lands immediately adjacent to 
operations meeting the criteria of paragraph (a)(3)(i) of this section.
    (4) The amount of material removed from the pit is large in 
proportion to the surface area disturbed.
    (5) There is no practicable alternative to the deep open-pit method 
of mining the coal.
    (6) There is no practicable way to entirely reclaim the land as 
required by part 715 of this chapter.
    (b) Requirements for special bituminous coal mines operating prior 
to July 1, 1973. Those portions of a special bituminous coal mine 
approved for operation prior to July 1, 1973, including the orderly 
expansion of such a mine pit to the extent authorized by State law, 
shall at a minimum meet the general performance standards of part 715 of 
this chapter for all operations conducted on the permit area outside the 
mine pit and for those operations associated with spoil storage areas. 
The standards of part 715 also apply to the mine pit with the exception 
of Sec. 715.14, which relates to backfilling and grading. Special 
requirements for backfilling and grading the mine pit area are as 
follows:
    (1) In the final mine area, highwalls will be allowed to remain and 
benches will be allowed. Details of the benches shall be included in the 
mine plans submitted to the regulatory authority for approval.
    (2) The exposed pit floors will be sloped and graded to provide 
access to the area, and topsoil shall be applied and the floor area 
seeded according to the requirements of Sec. Sec. 715.16 and 715.20. 
Where water impoundments are included as part of the mine plan, riprap 
may be used if necessary to prevent erosion.
    (3) Spoil piles will be graded and contoured with no more than 
overall slope of 17 degrees allowed, and terraces may be used to break 
the slope when it can be shown that terraces will accomplish the 
required reclamation. For the postmining land use, steeper slopes may be 
permitted upon approval of the regulatory authority, provided it can be 
demonstrated that such method will provide the required results.
    (c) Requirements for other special bituminous coal mines. Those 
portions of a special bituminous coal mine which do not meet the 
criteria of paragraph (b) of this section shall, at minimum meet the 
general performance standards of part 715 of this chapter for all 
operations conducted on the permit area outside the mine pit and for 
these operations associated with spoil storage areas. The standards of 
part 715 also apply to the mine pit with the exception of Sec. 715.14, 
which relates to backfilling and grading. Special requirements for 
backfilling and grading the mine pit area are as follows:
    (1) Slope specifications. Slope specifications for the postmining 
land use shall be based on an average of the natural slopes measured in 
the immediate area of the mine site, and the maximum inclination of the 
slopes in the reclaimed area shall not be greater than this average 
slope. However, slopes steeper than the average of the natural slopes 
may be approved by the regulatory authority if it can be demonstrated 
that returning the minded area to a slope equal to or less than the 
average natural slope would greatly increase the amount of disturbed 
land. Measurements of individual slopes, locations at which measurements 
are made, and the average natural slope as determined from the 
individual slope measurements shall be submitted for approval to the 
regulatory authority. The regulatory authority may make an independent 
slope survey to verify the average natural slope.
    (2) Postmining land uses that do not include permanent water 
impoundments. (i)

[[Page 93]]

The final mine area shall be backfilled, graded, and contoured to the 
extent necessary to return the land to the use approved by the 
regulatory authority.
    (ii) All backfilling, grading, and contouring shall be done in a 
manner to preserve the original drainage system or to provide substitute 
drainage systems approved by the regulatory authority.
    (iii) Terraces or benches may be used only if it can be demonstrated 
that contouring methods will not provide the required results. Detailed 
plans of dimensions and design of the terraces or benches, check dams, 
erosion prevention techniques, and slopes of the terraces or benches and 
their intervals shall be submitted to the regulatory authority for 
approval before construction.
    (iv) Depressions that will accumulate water shall not be allowed 
unless they are approved under paragraph (3).
    (3) Postmining land uses that include permanent water impoundments. 
(i) The exposed mine pit area shall be sloped, graded, and contoured to 
blend with the topography of the surrounding terrain and to provide for 
access to the area. Where necessary to prevent erosion, riprap shall be 
used.
    (ii) Under certain conditions where it can be demonstrated by the 
permittee that the pitwall can be stabilized by terracing or other 
techniques it may be permissible to leave one-half the proposed 
shoreline, as measured along the circumference, composed of the 
stabilized pitwall. The remaining part of the shoreline shall be graded 
and contoured to blend with the topography of the surrounding terrain 
and to provide access to the area. Detailed explanations of the 
techniques to be used to stabilize the pitwalls shall be submitted for 
approval to the regulatory authority. The regulatory authority may 
verify the effectiveness of the proposed stabilization techniques from a 
study made by an independent engineering company and based on this 
information and an onsite inspection, the regulatory authority will then 
determine the acceptability of the proposed stabilization techniques.
    (d) In the event of an amendment or revision to the State of 
Wyoming's regulatory program, regulations, or decisions made thereunder 
governing special bituminous coal mines, the Secretary shall issue such 
additional regulations as necessary to meet the purposes of the Act.



Sec. 716.5  Anthracite coal mines.

    (a) Permittees of anthracite surface coal mining and reclamation 
operations in those States where the mines are regulated by State 
environmental protection standards shall be subject to the environmental 
protection standards of the State regulatory program in existence on 
August 3, 1977, instead of part 715 and part 717 of this chapter.
    (b) The environmental protection provisions of Title 25, Rules and 
Regulations, part 1, Department of Environmental Resources, Commonwealth 
of Pennsylvania, shall apply to reclamation of anthracite surface coal 
mining and reclamation operations in the Commonwealth of Pennsylvania 
instead of part 715 and part 717 of this chapter. In addition, the 
regulations of the Commonwealth of Pennsylvania pertaining to standards 
for air and water quality shall apply instead of the regulations of part 
715 and part 717 of this chapter.
    (c) If a State's regulatory program or regulations for anthracite 
surface coal mining and reclamation operations in force at the time of 
this Act are amended, the Secretary, upon receipt of a notice of 
amendment, shall issue additional regulations as necessary to meet the 
purposes of this Act.

[45 FR 61259, Sept. 15, 1980]



Sec. 716.6  Coal mines in Alaska.

    (a) Permittees of surface coal mining operations in Alaska from 
which coal has been mined on or after August 3, 1977, shall conduct 
operations in a manner that, at a minimum, meets the performance 
standards of this chapter.
    (b) The Secretary, after consultation with the Governor of Alaska, 
may modify the applicability of any environmental protection standard to 
any surface coal mining operation if he determines that it is necessary 
to ensure the continued operation of the mine.
    (c) Any person may petition the Secretary to modify the 
applicability of a performance standard to a coal mine in Alaska. No 
particular form of petition

[[Page 94]]

is required. However, the petition shall be in writing and shall 
identify clearly--
    (1) The performance standard involved;
    (2) The alternative methods to be used to protect the environment 
and public health and safety;
    (3) The reasons why a modification is requested with full 
descriptions of the impacts continued requirements for compliance with 
the performance standard to be modified would have on mining and 
reclamation and of the impacts the proposed method would have on the 
environment and public health and safety; and
    (4) The location of the mine.
    (d) If the Secretary determines that the petition presents 
reasonable justification for modifying the performance standard, he may 
grant a temporary suspension of enforcement of the performance standard, 
and he shall publish a notice of intention to modify the applicability 
of the performance standard in the Federal Register and in a newspaper 
of general circulation in the area of Alaska where the affected coal 
mine is located. A public hearing shall be held in Alaska and any person 
may testify for or against the proposed modification. The Secretary, 
after considering the public comments, and consulting with the Governor 
of Alaska, shall publish his decision in the Federal Register and in the 
same newspaper in which the original notice was published.



Sec. 716.7  Prime farmland.

    (a) Applicability. (1) Permittees of surface coal mining and 
reclamation operations conducted on prime farmland shall comply with the 
general performance standards of part 715 of this chapter in addition to 
the special requirements of this section.
    (2) Except as otherwise provided in this paragraph, the requirements 
of the section are applicable to any lands covered by a permit 
application filed on or after August 3, 1977. This section does not 
apply to:
    (i) Lands on which surface coal mining and reclamation operations 
are conducted pursuant to any permit issued prior to August 3, 1977; or
    (ii) Lands on which surface coal mining and reclamation operations 
are conducted pursuant to any renewal or revision of a permit issued 
prior to August 3, 1977; or
    (iii) Lands included in any existing surface coal mining operations 
for which a permit was issued for all or any part thereof prior to 
August 3, 1977, provided that:
    (A) Such lands are part of a single continuous surface coal mining 
operation begun under a permit issued before August 3, 1977; and
    (B) The permittee had a legal right to mine the lands prior to 
August 3, 1977, through ownership, contract, or lease but not including 
an option to buy, lease, or contract; and
    (C) The lands contain part of a continuous recoverable coal seam 
that was being mined in a single continuous mining pit (or multiple pits 
if the lands are proven to be part of a single continuous surface coal 
mining operation) begun under a permit issued prior to August 3, 1977.
    (3) For purposes of this section:
    (i) ``Renewal'' of a permit shall mean a decision by the regulatory 
authority to extend the time by which the permittee may complete mining 
within the boundaries of the original permit, and ``revision'' of the 
permit shall mean a decision by the regulatory authority to allow 
changes in the method of mining operations within the original permit 
area, or the decision of the regulatory authority to allow incidental 
boundary changes to the original permit;
    (ii) A pit shall be deemed to be a single continuous mining pit even 
if portions of the pit are crossed by a road, pipeline, railroad, or 
powerline or similar crossing;
    (iii) A single continuous surface coal mining operation is presumed 
to consist only of a single continuous mining pit under a permit issued 
prior to August 3, 1977, but may include non-contiguous parcels if the 
operator can prove by clear and convincing evidence that, prior to 
August 3, 1977, the contiguous parcels were part of a single permitted 
operation. For the purposes of this paragraph, clear and convincing 
evidence includes, but is not limited to, contracts, leases, deeds or 
other

[[Page 95]]

properly executed legal documents (not including options) that 
specifically treat physically separate parcels as one surface coal 
mining operation.
    (b) Definitions. For purposes of this section, the following 
definitions are applicable.
    (1) Prime farmland means those lands which are defined by the 
Secretary of Agriculture in 7 CFR 657 and which have been historically 
used for cropland.
    (2) Historically used for cropland means (i) lands that have been 
used for cropland for any 5 years or more out of the 10 years 
immediately preceding the acquisition, including purchase, lease, or 
option, of the land for the purpose of conducting or allowing through 
resale, lease, or option the conduct of surface coal mining and 
reclamation operations; (ii) lands that the regulatory authority 
determines, on the basis of additional cropland history of the 
surrounding lands and the lands under consideration, that the permit 
area is clearly cropland but falls outside the specific 5-years-in-10 
criterion, or (iii) lands that would likely have been used as cropland 
for any 5 out of the last 10 years immediately preceding such acquistion 
but for some fact of ownership or control of the land unrelated to the 
productivity of the land, in which case the regulations for prime 
farmland may be applied to include more years of cropland history only 
to increase the prime farmland acreage to be protected.
    (3) Cropland means land used for the production of adapted crops for 
harvest, alone or in a rotation with grasses and legumes, and includes 
row crops, small grain crops, hay crops, nursery crops, orchard crops, 
and other similar speciality crops.
    (4) The soils either have no water table or have a water table that 
is maintained at a sufficient depth during the cropping season to allow 
food, feed, fiber, forage, and oilseed crops common to the area to be 
grown.
    (5) The soils can be managed so that in all horizons within a depth 
of 40 inches or in the root zone if the root zone is less than 40 inches 
deep, during part of each year the conductivity of saturation extract is 
less than 4 mmhos/cm and the exchangeable sodium percentage (ESP) is 
less than 15.
    (6) The soils are not flooded frequently during the growing season 
(less often than once in 2 years).
    (7) The soils have a product of K (erodibility factor) x percent 
slope of less than 2.0 and a product of I (soil erodibility) x C 
(climatic factor) not exceeding 60.
    (8) The soils have a permeability rate of at least 0.06 inch per 
hour in the upper 20 inches and the mean annual soil temperature at a 
depth of 20 inches is less than 59 degrees F.; the permeability rate is 
not a limiting factor if the mean annual soil temperature is 59 degress 
F. or higher.
    (9) Less than 10 percent of the surface layer (upper 6 inches) in 
these soils consists of rock fragments coarser than 3 inches.
    (c) Indentification of prime farmland. Prime farmland shall be 
identified on the basis of soil surveys submitted by the applicant. The 
regulatory authority also may require data on irrigation, drainage, 
flood control, and subsurface water managament. The requirement for 
submission of soil surveys may be waived by the regulatory authority, if 
the applicant can demonstrate according to the procedures in paragraph 
(d) of this section that no prime farmlands are involved. Soil surveys 
shall be conducted according to standards of the National Cooperative 
Soil Survey, which include the procedures set forth in U.S. Department 
of Agriculture Handbooks 436 (Soil Taxonomy) and 18 (Soil Survey 
Manual), and shall include--
    (1) Data on moisture availability, temperature regime, flooding, 
water table, erosion characteristics, permeability, or other information 
that is needed to determine prime farmland in accordance with paragraph 
(b) of this section;
    (2) A map designating the exact location and extent of the prime 
farmland; and
    (3) A description of each soil mapping unit.
    (d) Negative determination of prime farmland. The land shall not be 
considered as prime farmland where the applicant can demonstrate one or 
more of the following situations--

[[Page 96]]

    (1) Lands within the proposed permit boundaries have not been 
historically used for cropland.
    (2) The slope of all land within the permit area is 10 percent or 
greater.
    (3) Land within the permit area is not irrigated or naturally 
subirrigated, has no developed water supply that is dependable and of 
adequate quality, and the average annual precipitation is 14 inches or 
less.
    (4) Other factors exist, such as a very rocky surface, or the land 
is frequently flooded, which clearly place all land within the area 
outside the purview of prime farmland.
    (5) A written notification based on scientific findings and soil 
surveys that land within the proposed mining area does not meet the 
applicability requirements in paragraph (a) of this section is submitted 
to the regulatory authority by a qualified person other than the 
applicant, and is approved by the regulatory authority.
    (e) Plan for restoration of prime farmland. The applicant shall 
submit to the regulatory authority a plan for the mining and restoration 
of any prime farmland within the proposed permit boundaries. This plan 
shall be used by the regulatory authority in judging the technological 
capability of the applicant to restore prime farmlands. The plan shall 
include--
    (1) A description of the original undisturbed soil profile, as 
determined from a soil survey, showing the depth and thickness of each 
of the soil horizons that collectively constitute the root zone of the 
locally adapted crops and are to be removed, stored, and replaced;
    (2) The proposed method and type of equipment to be used for 
removal, storage, and replacement of the soil in accordance with 
paragraph (g) of this section;
    (3) The location of areas to be used for the separate stockpiling of 
the soil and plans for soil stabilization before redistribution;
    (4) If applicable, documentation such as agricultural school studies 
or other scientific data from comparable areas that supports the use of 
other suitable material, instead of the A, B or C soil horizon to obtain 
on the restored area equivalent or higher levels of yield as non-mined 
prime farmlands in the surrounding area under equivalent levels of 
management; and
    (5) Plans for seeding or cropping the final graded mine land and the 
conservation practices to control erosion and sedimentation during the 
first 12 months after regrading is completed. Proper adjustments for 
seasons must be made so that final graded land is not exposed to erosion 
during seasons when vegetation or conservation practices cannot be 
established due to weather conditions; and
    (6) Available agricultural school studies, company data, or other 
scientific data for comparable areas that demonstrate that the applicant 
using his proposed method of reclamation will achieve, within a 
reasonable time equivalent or higher levels of yield after mining as 
existed before mining.
    (f) Consultation with Secretary of Agriculture and issuance of 
permit. (1) The regulatory authority may grant a permit which shall 
incorporate the plan submitted under paragraph (e) of this section, if 
it finds in writing that the applicant--
    (i) Has the technological capability to restore the prime farmland 
within the proposed permit area, within a reasonable time, to equivalent 
or higher levels of yield as nonmined prime farmland in the surrounding 
area under equivalent levels of management; and
    (ii) Will achieve compliance with the standards of paragraph (g) of 
this section.
    (2) Before any permit is issued for areas that include prime 
farmlands, the regulatory authority shall consult with the Secretary of 
Agriculture. The Secretary of Agriculture will provide a review of the 
proposed method of soil reconstruction and comment on possible revisions 
that will result in a more complete and adequate restoration. The 
Secretary of Agriculture has assigned his responsibilities under this 
paragraph to the Administrator of the U.S. Soil Conservation Service and 
the U.S. Soil Conservation Service will carry out the consultation and 
review through their State Conservationist, located in each State.
    (g) Special requirements. For all prime farmlands to be mined and 
reclaimed,

[[Page 97]]

the applicant shall meet the following special requirements:
    (1) All soil horizons to be used in the reconstruction of the soil 
shall be removed before drilling, blasting, or mining ro prevent 
contaminating the soil horizons with undesirable materials. Where 
removal of soil horizons result in erosion that may cause air and water 
pollution, the regulatory authority shall specify methods of treatment 
to control erosion of exposed overburden. The permittee shall--
    (i) Remove separately the entire A horizon or other suitable soil 
materials which will create a final soil having an equal or greater 
productive capacity than that which existed prior to mining in a manner 
that prevents mixing or contamination with other material before 
replacement;
    (ii) Remove separately the B horizon of the natural soil or a 
combination of B horizon and underlying C horizon or other suitable soil 
material that will create a reconstructed root zone of equal or greater 
productivity capacity than that which existed prior to mining in a 
manner that prevents mixing or contamination with other material; and
    (iii) Remove separately the underlying C horizons or other strata, 
or a combination of such horizons or other strata, to be used instead of 
the B horizon that are of equal or greater thickness and that can be 
shown to be equal or more favorable for plant growth than the B horizon, 
and that when replaced will create in the reconstructed soil a final 
root zone of comparable depth and quality to that which existed in the 
natural soil.
    (2) If stockpiling of soil horizons is allowed by the regulatory 
authority in lieu of immediate replacement, the A horizon and B horizon 
must be stored separately from each other. The stockpiles must be placed 
within the permit area and where they will not be disturbed or exposed 
to excessive erosion by water or wind before the stockpiled horizons can 
be redistributed on terrain graded to final contour. Stockpiles in place 
for more than 30 days must meet the requirements of Sec. 715.16(c).
    (3) Scarify the final graded land before the soil horizons are 
replaced.
    (4) Replace the material from the B horizon, or other suitable 
material specified in paragraph (g)(1)(ii) or (g)(1)(iii) of this 
section in such a manner as to avoid excessive compaction of overburden 
and to a thickness comparable to the root zone that existed in the soil 
before mining.
    (5) Replace the A horizon or other suitable soil materials, which 
will create a final soil having an equal or greater productive capacity 
than existed prior to mining, as the final surface soil layer to the 
thickness of the original soil as determined in paragraph (g)(1)(i) of 
this section in a manner that--
    (i) Prevents excess compaction of both the surface layer and 
underlying material and reduction of permeability to less than 0.06 inch 
per hour in the upper 20 inches of the reconstructed soil profile; and
    (ii) Protects the surface layer from wind and water erosion before 
it is seeded or planted.
    (6) Apply nutrients and soil amendments as needed to establish quick 
vegetative growth.

[42 FR 62691, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1978, as amended at 46 
FR 47529, Sept. 28, 1981; 46 FR 47721, Sept. 29, 1981]



Sec. 716.10  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in 30 CFR part 716 do not 
require approval under the Paperwork Reduction Act.

[59 FR 43420, Aug. 23, 1994]



PART 717_UNDERGROUND MINING GENERAL PERFORMANCE STANDARDS--Table of Contents



Sec.
717.10 Information collection.
717.11 General obligations.
717.12 Signs and markers.
717.13 [Reserved]
717.14 Backfilling and grading of road cuts, mine entry area cuts, and 
          other surface work areas.
717.15 Disposal of excess rock and earth materials on surface areas.
717.16 [Reserved]
717.17 Protection of the hydrologic system.
717.18 Dams constructed of or impounding waste material.
717.19 [Reserved]

[[Page 98]]

717.20 Topsoil handling and revegetation.

    Authority: Secs. 201 and 501, Pub. L. 95-87, 91 Stat. 445 (30 U.S.C. 
1201).

    Source: 42 FR 62695, Dec. 13, 1977, unless otherwise noted.



Sec. 717.10  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in 30 CFR part 717 do not 
require approval under the Paperwork Reduction Act.

[59 FR 43420, Aug. 23, 1994]



Sec. 717.11  General obligations.

    (a) Compliance. All underground coal mining and associated 
reclamation operations conducted on lands where any element of the 
operations is regulated by a State shall comply with the initial 
performance standards of this part according to the time schedule 
specified in Sec. 710.11.
    (1) For the purposes of this part, underground coal mining and 
associated reclamation operations mean a combination of surface 
operations and underground operations. Surface operations include 
construction, use, and reclamation of new and existing access and haul 
roads, aboveground repair areas, storage areas, processing areas, 
shipping areas, and areas upon which are sited support facilities 
including hoist and ventilating ducts, and on which materials incident 
to underground mining operations are placed. Underground operations 
include underground construction, operation, and reclamation of shafts, 
adits, underground support facilities, underground mining, hauling, 
storage, and blasting.
    (2) For the purpose of this part the term permittee means the person 
permitted to conduct underground mining operations by a State or if no 
permit is issued in the State, the person operating a mine.
    (3) For the purpose of this part, Disturbed areas means surface work 
areas and lands affected by surface operations including, but not 
limited to, roads, mine entry excavations, above ground (surface) work 
areas, such as tipples, coal processing facilities and other operating 
facilities, waste work and spoil disposal areas, and mine waste 
impoundments or embankments.
    (4) Where State environmental protection standards are adopted for a 
specific State because they are more stringent than the standards of 
this part, they will be published in part 718 of this chapter.
    (b) Authorizations to operate. A copy of all current permits, 
licenses, approved plans or other authorizations to operate the mine 
shall be available for inspection at or near the mine site.



Sec. 717.12  Signs and markers.

    (a) Specifications. All signs required to be posted shall be of a 
standard design that can be seen and read easily and shall be made of 
durable material, and shall conform to local ordinances and codes. The 
signs and other markers shall be maintained during all operations to 
which they pertain.
    (b) Mine and permit identification signs. Signs identifying the mine 
area shall be displayed at all points of access to the permit area from 
public highways. Signs shall show the name, business address, and 
telephone number of the permittee and identification numbers of current 
mining and reclamation permits or other authorizations to operate. Such 
signs shall not be removed until after release of all bonds.



Sec. 717.13  [Reserved]



Sec. 717.14  Backfilling and grading of road cuts, mine entry area cuts, and 

other surface work areas.

    (a) Upon completion of underground mining, surface work areas which 
are involved in excavation, disposal of materials, or otherwise 
affected, shall be regraded to approximate original contour. The 
permittee shall transport, backfill and compact fill material to assure 
stability or to prevent leaching of toxic pollutants. Barren rock or 
similar materials excess to the mining operations and which are disposed 
on the land surface shall be subject to the provision of Sec. 717.15 of 
this part. Roads and support facility areas existing prior to the 
effective date of this part and used in support of underground mining 
operations which are subject to this part shall be regraded to the 
extent deemed feasible by the regulatory authority based on the 
availability of

[[Page 99]]

backfill material and resulting stability of the affected lands after 
reclamation. As a minimum, the permittee shall be required to:
    (1) Retain all earth, rock and other mineral nonwaste materials on 
the solid portion of existing or new benches, except that the regulatory 
authority may permit placement of such material at the site of the 
faceup as a means of disposing of excavated spoil when additional 
working space is needed to facilitate operations. Such placement of 
material shall be limited to minimize disturbance of land and to the 
hydrologic balance. Such fills shall be stabilized with vegetation and 
shall achieve a minimum static safety factor of 1.5. In no case shall 
the outslope exceed the angle of repose.
    (2) Backfill and grade to the most moderate slope possible to 
eliminate any highwall along roads, mine entry faces or other areas. 
Slopes shall not exceed the angle of repose or such lesser slopes as 
required by the regulatory authority to maintain stability.
    (b) On approval by the regulatory authority and in order to conserve 
soil moisture, ensure stability, and control erosion on final graded 
slopes, cut-and-fill terraces may be allowed if the terraces are 
appropriate substitutes for construction of lower grades on the 
reclaimed lands. The terraces shall meet the following requirements:
    (1) The width of the individual terrace bench shall not exceed 20 
feet unless specifically approved by the regulatory authority as 
necessary for stability erosion control, or roads.
    (2) The vertical distance between terraces shall be as specified by 
the regulatory authority to prevent excessive erosion and to provide 
long/term stability.
    (3) The slope of the terrace outslope shall not exceed 1v:2h (50 
percent). Outslopes which exceed 1v:2h (50 percent) may be approved if 
they have a minimum static safety factor of 1.5 of more and provide 
adequate control over erosion and closely resemble the surface 
configuration of the land prior to mining. In no case may highwalls be 
left as part of terraces.
    (4) Culverts and underground rock drains shall be used on the 
terrace only when approved by the regulatory authority.
    (c) All surface operations on steep slopes of 20 degrees or more or 
on such lesser slopes as the regulatory authority define as a steep 
slope shall be conducted so as not to place any material on the 
downslope below road cuts, mine working or other benches, other than in 
conformance with paragraph (a)(1) of this part.
    (d) Regrading or stabilizing rills and gullies. When rills or 
gullies deeper than 9 inches form in areas that have been regraded and 
the topsoil replaced but vegetation has not yet been established, the 
permittee shall fill, grade, or otherwise stabilize the rills and 
gullies and reseed or replant the areas according to Sec. 717.20. The 
regulatory authority shall specify that erosional features of lesser 
size be stabilized if they result in additional erosion and 
sedimentation.
    (e) Covering coal and acid-forming, toxic-forming, combustible, and 
other waste materials; stabilizing backfilled materials; and using waste 
material for fill. Any acid-forming, toxic-forming, combustible 
materials, or any other waste materials as identified by the regulatory 
authority that are exposed, used, or produced during underground mining 
and which are deposited on the land surface shall, after placement in 
accordance with Sec. 717.15 of this part, be covered with a minimum of 
4 feet of nontoxic and noncombustible material; or, if necessary, 
treated to neutralize toxicity, in order to prevent water pollution and 
sustained combustion, and to minimize adverse effects on plant growth 
and land uses. Where necessary to protect against upward migration of 
salts, exposure by erosion, to provide an adequate depth for plant 
growth, or to otherwise meet local conditions, the regulatory authority 
shall specify thicker amount of cover using nontoxic material. Acid-
forming or toxic-forming material shall not be buried or stored in 
proximity to a drainage course so as to cause or pose a threat of water 
pollution or otherwise violate the provisions of Sec. 717.17 of this 
part.
    (f) Grading along the contour. All final grading, preparation of 
earth, rock and other nonwaste materials before replacement of topsoil, 
and placement of

[[Page 100]]

topsoil in accordance with Sec. 717.20, shall be done along the contour 
to minimize subsequent erosion and instability. If such grading, 
preparation or placement along the contour would be hazardous to 
equipment operators, grading, preparation or placement in a direction 
other than generally parallel to the contour may be used. In all cases, 
grading, preparation or placement shall be conducted in a manner which 
minimizes erosion and provides a surface for replacement of topsoil 
which will minimize slippage.



Sec. 717.15  Disposal of excess rock and earth materials on surface areas.

    Excess rock and earth materials produced from an underground mine 
and not disposed in underground workings or used in backfilling and 
grading operations shall be placed in surface disposal areas in 
accordance with requirements of Sec. 715.15. Where the volume of such 
material is small and its chemical and physical characteristics do not 
pose a threat to either public safety or the environment, the regulatory 
authority may modify the requirements of Sec. 715.15 in accordance with 
Sec. 717.14(a)(1).



Sec. 717.16  [Reserved]



Sec. 717.17  Protection of the hydrologic system.

    The permittee shall plan and conduct underground coal mining and 
reclamation operations to minimize disturbance of the prevailing 
hydrologic balance in order to prevent long-term adverse changes in the 
hydrologic balance that could result from underground coal mining 
operations, both on and off site. changes in water quality and quantity, 
in the depth to ground water, and in the location of surface water 
drainage channels shall be minimized and applicable Federal and State 
statutes and regulations shall not be violated. The permittee shall 
conduct operations so as to minimize water pollution and shall, where 
necessary, use treatment methods to control water pollution. The 
permittee shall emphasize underground coal mining and reclamation 
practices that will prevent or minimize water pollution and changes in 
flows in preference to the use of water treatment facilities prior to 
discharge to surface waters. Practices to control and minimize pollution 
include, but are not limited to, diverting water from underground 
workings or preventing water contact with acid- or toxic-forming 
materials, and minimizing water contact time with waste materials, 
maintaining mine barriers to enhance postmining inundation and sealing, 
establishing disturbed areas through grading, diverting runoff, 
achieving quick growing stands of temporary vegetation, and lining 
drainage channels. If treatment is required to eliminate pollution of 
surface or ground waters, the permittee shall operate and maintain the 
necessary water treatment facilities as set forth in this section.
    (a) Water quality standards and effluent limitations. (1) All 
surface drainage from the disturbed area, including disturbed areas that 
have been graded, seeded or planted and which remain subject to the 
requirements of this section, except for drainage from disturbed areas 
that have met the requirements of Sec. 717.20 shall be passed through a 
sedimentation pond or a series of sedimentation ponds prior to leaving 
the permit area. All waters which flow or are removed from underground 
operations or underground waters which are removed from other areas to 
facilitate mining and which discharge to surface waters must be passed 
through appropriate treatment facilities prior to discharge where 
necessary to meet effluent limitations.
    (2) For purposes of this section only, disturbed areas shall include 
areas of surface operations but shall not include those areas in which 
only diversion ditches, sedimentation ponds, or roads are installed in 
accordance with this section and the upstream area is not otherwise 
disturbed by the permittee. Disturbed areas shall not include those 
surface areas overlying the underground working unless those areas are 
also disturbed by surface operations such as fill (disposal) areas, 
support facilities areas, or other major activities which create a risk 
of pollution.
    (3) The regulatory authority may grant exemptions from this 
requirement only when the disturbed drainage

[[Page 101]]

area within the total disturbed area is small and if the permittee shows 
that sedimentation ponds are not necessary to meet effluent limitations 
of this paragraph and to maintain water quality in downstream receiving 
waters. Sedimentation ponds required by this paragraph shall be 
constructed in accordance with paragraph (e) of this section in 
appropriate locations prior to any mining in the affected drainage area 
in order to control sedimentation or otherwise treat water in accordance 
with this paragraph. Discharges from areas disturbed by underground 
operation and by surface operation and reclamation activities conducted 
thereon, must meet all applicable Federal and State regulations and, at 
a minimum, the following numerical effluent limitations:

    Effluent Limitations, in Milligrams Per Liter, mg/l Except for pH
------------------------------------------------------------------------
                                                              Average of
                                                                daily
                                                  Maximum     values for
           Effluent characteristics              allowable        30
                                                    \1\      consecutive
                                                              discharge
                                                               days \1\
------------------------------------------------------------------------
Iron, total...................................          7.0          3.5
Manganese, total..............................          4.0          2.0
Total suspended solids \2\....................         70.0         35.0
pH \3\........................................        (\4\)        (\4\)
------------------------------------------------------------------------
\1\ Based on representative sampling.
\2\ In Arizona, Colorado, Montana, New Mexico, North Dakota, South
  Dakota, Utah, and Wyoming, total suspended solids limitations will be
  determined on a case-by-case basis, but they must not be greater than
  45/mg/l (maximum allowable) and 30 mg/l (average of daily value for 30
  consecutive discharge days) based on a representative sampling.
\3\ Where the application of neutralization and sedimentation treatment
  technology results in inability to comply with the manganese
  limitations set forth, the regulatory authority may allow the pH level
  in the discharge to exceed to a small extent the upper limit of 9.0 in
  order that the manganese limitations will be achieved.
\4\ Within the range 6.0 to 9.0.

    (i) Any overflow or other discharge of surface water from the 
disturbed area within the permit area demonstrated by the permittee to 
result from a precipitation event larger than the 10-year 24-hour 
frequency event will not be subject to the effluent limitations of 
paragraph (a).
    (ii) The permittee shall install, operate, and maintain adequate 
facilities to treat any water discharged from the disturbed area that 
violates applicable Federal or State regulations or the limitations of 
paragraph (a). If the pH of waters to be discharged from the disturbed 
area is normally less than 6.0, an automatic lime feeder or other 
neutralization process approved by the regulatory authority shall be 
installed, operated, and maintained. If the regulatory authority finds 
that small and infrequent treatment requirements to meet applicable 
standards do not necessitate use of an automatic neutralization process, 
and the mine normally produces less than 500 tons of coal per day, the 
regulatory authority can approve the use of a manual system if the 
permittee agrees to insure that consistent and timely treatment is 
carried out.
    (iii) The effluent limitations for manganese shall be applicable 
only to acid drainage.
    (b) Surface water monitoring. (1) The permittee shall submit for 
approval by the regulatory authority a surface water monitoring program 
which meets the following requirements:
    (i) Provides adequate monitoring of all discharge from the disturbed 
area and from the underground operations.
    (ii) Provides adequate data to describe the likely daily and 
seasonal variation in discharges from the disturbed area in terms of 
flow, pH, total iron, total manganese, and total suspended solids and, 
as requested by the regulatory authority, any other parameter 
characteristic of the discharge.
    (iii) Provides monitoring at appropriate frequencies to measure 
normal and abnormal variations in concentration.
    (iv) Provides an analytical quality control system including 
standard methods of analysis such as those specified in 40 CFR part 136.
    (v) Within sixty (60) days of the end of each sixty (60) day sample 
collection period, a report of all samples shall be made to the 
regulatory authority, unless the discharge for which water monitoring 
reports are required is subject to regulation by a National Pollution 
Discharge Elimination System (NPDES) permit issued in compliance with 
the Clean Water Act of 1977 (33 U.S.C. 1251-1378), (A) which includes 
equivalent reporting requirements, and (B) which requires filing of the 
water monitoring reports within 90 days or less of sample collection.

For such discharges, the reporting requirements of this paragraph may be

[[Page 102]]

satisfied by submitting to the regulatory authority on the same time 
schedule as required by the NPDES permit or within ninety (90) days 
following sample collection, whichever is earlier, either (1) a copy of 
the completed reporting form filed to meet the NPDES permit 
requirements, or (2) a letter identifying the State or Federal 
government official with whom the reporting form was filed to meet the 
NPDES permit requirements and the date of filing. In all cases in which 
analytical results of the sample collections indicate a violation of a 
permit condition or applicable standard has occurred, the operator shall 
notify the regulatory authority immediately. Where an NPDES permit 
effluent limitation requirement has been violated, the permittee should 
forward a copy of the Discharge Monitoring Report, EPA Form 3320-1, 
concurrently with notification of the violation.
    (2) Equipment, structures, or other measures necessary to accurately 
measure and sample the quality and quantity of surface water discharges 
from the disturbed area of the permit area shall be properly installed, 
maintained and operated and shall be removed when no longer required.
    (c) Diversion and conveyance of overland flow away from disturbed 
areas. In order to minimize erosion and to prevent or remove water from 
contacting toxic-producing deposits, overland flow from undisturbed 
areas may, as required or approved by the regulatory authority, be 
diverted away from disturbed areas by means of temporary or permanent 
diversion structures. The following requirements shall be met for such 
diversions:
    (1) Temporary diversion structures shall be constructed to safely 
pass the peak runoff from a precipitation event with a one year 
recurrence interval, or a larger event as specified by the regulatory 
authority. The design criteria must assure adequate protection of the 
environment and public during the existence of the temporary diversion 
structure.
    (2) Permanent diversion structures are those remaining after mining 
and reclamation and approved for retention by the regulatory authority 
and other appropriate State and Federal agencies. To protect fills and 
property, to prevent water from contacting toxic-producing deposits, and 
to avoid danger to public health and safety, permanent diversion 
structures shall be constructed to safely pass the peak runoff from a 
precipitation event with a 100-year recurrence interval or a larger 
event as specified by the regulatory authority. Permanent diversion 
structures shall be constructed with gently sloping banks that are 
stabilized by vegetation. Asphalt, concrete, or other similar linings 
shall not be used unless specifically required to prevent seepage or to 
provide stability and they are approved by the regulatory authority.
    (3) Diversions shall be designed, constructed, and maintained in a 
manner so as to prevent additional contributions of suspended solids to 
streamflow, or to runoff outside the permit area to the extent possible, 
using the best technology currently available. In no event shall such 
contributions be in excess of requirements set by applicable State or 
Federal law. Appropriate sediment control measures for these diversions 
shall include, but not be limited to, maintenance of appropriate 
gradients, channel lining, vegetation, and roughness structures and 
detention basins.
    (d) Stream channel diversions. In the event that the regulatory 
authority permits diversion of streams, the regulations of Sec. 
715.17(d) shall apply.
    (e) Sedimentation ponds--(1) General requirements. Sedimentation 
ponds shall be used individually or in series and shall:
    (i) Be constructed before any disturbance of the undisturbed area to 
be drained into the pond and prior to any discharge of water to surface 
waters from underground mine workings;
    (ii) Be located as near as possible to the disturbed area and out of 
perennial streams, unless approved by the regulatory authority,
    (iii) Meet all the criteria of the section.
    (2) Sediment storage volume. Sedimentation ponds shall provide a 
minimum sediment storage volume.
    (3) Detention time. Sedimentation ponds shall provide the required 
theoretical detention time for the water inflow or runoff entering the 
pond from a

[[Page 103]]

10-year, 24-hour precipitation event (design event), plus the average 
inflow from the underground mine.
    (4) Dewatering. The water storage resulting from inflow shall be 
removed by a nonclogging dewatering device or a conduit spillway 
approved by the regulatory authority. The dewatering device shall not be 
located at a lower elevation than the maximum elevation of the 
sedimentation storage volume.
    (5) Each person who conducts underground mining activities shall 
design, construct, and maintain sedimentation ponds to prevent short-
circuiting to the extent possible.
    (6) The design, construction, and maintenance of a sedimentation 
pond or other sediment control measures in accordance with this section 
shall not relieve the person from compliance with applicable effluent 
limitations as contained in paragraph (a) of this section.
    (7) There shall be no out-flow through the emergency spillway during 
the passage of the runoff resulting from the 10-year, 24-hour 
precipitation events and lesser events through the sedimentation pond, 
regardless of the volume of water and sediment present from the 
underground mine during the runoff.
    (8) Sediment shall be removed from sedimentation ponds.
    (9) An appropriate combination of principal and emergency spillways 
shall be provided to discharge safely the runoff from a 25-year, 24-hour 
precipitation event, or larger event specified by the regulatory 
authority, plus any inflow from the underground mine. The elevation of 
the crest of the emergency spillway shall be a Minimum of 1.0 foot above 
the crest of the principal spillway. Emergency spillway grades and 
allowable velocities shall be approved by the regulatory authority.
    (10) The minimum elevation of the top of the settled embankment 
shall be 1.0 foot above the water surface in the pond with the emergency 
spillway flowing at design depth. For embankments subject to settlement, 
this 1.0 foot minimum elevation requirement shall apply at all times, 
including the period after settlement.
    (11) The constructed height of the dam shall be increased a minimum 
of 5 percent over the design height to allow for settlement, unless it 
has been demonstrated to the regulatory authority that the material used 
and the design will ensure against all settlement.
    (12) The minimum top width of the embankment shall not be less than 
the quotient of (H+35)/5, where H, in feet, is the height of the 
embankment as measured from the upstream toe of the embankment.
    (13) The combined upstream and downstream side slopes of the settled 
embankment shall not be less than 1v:5h, with neither slope steeper than 
1v:2h, Slopes shall be designed to be stable in all cases, even if 
flatter side slopes are required.
    (14) The embankment foundation area shall be cleared of all organic 
matter, all surfaces sloped to no steeper than 1v:1h, and the entire 
foundation surface scarified.
    (15) The fill material shall be free of sod, large roots, other 
large vegetative matter, and frozen soil, and in no case shall coal-
processing waste be used.
    (16) The placing and spreading of fill material shall be started at 
the lowest point of the foundation. The fill shall be brought up in 
horizontal layers of such thickness as is required to facilitate 
compaction and meet the design requirement of this section. Compaction 
shall be conducted as specified in the design approved by the regulatory 
authority.
    (17) If a sedimentation pond has an embankment that is more than 20 
feet in height, as measured from the upstream top of the embankment to 
the crest of the emergency spillway, or has a storage volume of 20 acre-
feet or more, the following additional requirements shall be met:
    (i) An appropriate combination of principal and emergency spillways 
shall be provided to safely discharge the runoff resulting from a 100-
year, 24-hour precipitation event, or a larger event specified by the 
regulatory authority, plus any in-flow from the underground mine.
    (ii) The embankment shall be designed and constructed with an 
acceptable static safety factor of at least 1.5, or a higher safety 
factor as designated by the regulatory authority to ensure stability.

[[Page 104]]

    (iii) Appropriate barriers shall be provided to control seepage 
along conduits that extend through the embankment.
    (iv) The criteria of the Mine Safety and Health Administration as 
published in 30 CFR 77.216 shall be met.
    (18) Each pond shall be designed and inspected during construction 
under the supervision of, and certified after construction by, a 
registered professional engineer.
    (19) The entire embankment including the surrounding areas disturbed 
by construction shall be stabilized with respect to erosion by a 
vegetative cover or other means immediately after the embankment is 
completed. The active upstream face of the embankment where water is 
being impounded may be riprapped or otherwise stabilized. Areas in which 
the vegetation is not successful or where rills and guillies develop 
shall be repaired and revegetated, in accordance with Sec. 717.20.
    (20) All ponds, including those not meeting the size or other 
criteria of 30 CFR 77.216(a), shall be examined for structural weakness, 
erosion, and other hazardous conditions and reports and notifications 
shall be made to the regulatory authority, in accordance with 30 CFR 
77.216-3. With the approval of the regulatory authority, dams not 
meeting these criteria (30 CFR 77.216(a)) shall be examined four times 
per year.
    (21) Sedimentation ponds shall not be removed until the disturbed 
area has been restored and the vegetation requirements of Sec. 715.20 
are met and the drainage entering the pond has met the applicable State 
and Federal water quality requirements for the receiving stream. When 
the sedimentation pond is removed, the affected land shall be regraded 
and revegetated in accordance with Sec. Sec. 717.14 and 717.20, unless 
the pond has been approved by the regulatory authority for retention as 
compatible with the approved post-mining land use paragraph (k) of this 
section. If the regulatory authority approves retention, the 
sedimentation pond shall meet all the requirements for permanent 
impoundments of paragraph (k).
    (22)(i) Where surface mining activities are proposed to be conducted 
on steep slopes, as defined in Sec. 716.2 of this chapter, special 
sediment control measures may be followed if the person has demonstrated 
to the regulatory authority that a sedimentation pond (or series of 
ponds) constructed according to paragraph (e) of this section--
    (A) Will jeopardize public health or safety; or
    (B) Will result in contributions of suspended solids to streamflow 
in excess of the incremental sediment volume trapped by the additional 
pond size required.
    (ii) Special sediment control measures shall include but not be 
limited to--
    (A) Designing, constructing, and maintaining a sedimentation pond as 
near as physically possible to the disturbed area which complies with 
the design criteria of this section to the maximum extent possible.
    (B) A plan and commitment to employ sufficient onsite sedimentation 
control measures including bench sediment storage, filtration by natural 
vegetation, mulching, and prompt revegetation which, in conjunction with 
the required sediment pond, will achieve and maintain applicable 
effluent limitations. The plan submitted pursuant to this paragraph 
shall include a detailed description of all onsite control measures to 
be employed, a quantitative analysis demonstrating that onsite 
sedimentation control measures, in conjunction with the required 
sedimentation pond, will achieve and maintain applicable effluent 
limitations, and maps depicting the location of all onsite sedimentation 
control measures.
    (f) Discharge structures. Discharges from sedimentation ponds and 
diversion structures shall be controlled, where necessary, using energy 
dissipators, surge ponds, and other devices to reduce erosion and 
prevent deepening or enlargement of stream channels and to minimize 
disturbances to the hydrologic balance.
    (g) Acid and toxic materials. Drainage to ground and surface waters 
which emanates from acid-forming or toxic-forming mine waste materials 
and spoils placed on the land surface shall be avoided by--

[[Page 105]]

    (1) Identifying, burying, and treating where necessary, spoil or 
other materials that, in the judgment of the regulatory authority, will 
be toxic to vegetation or that will adversely affect water quality if 
not treated or buried. Such material shall be disposed in accordance 
with the provision of Sec. 717.14(e);
    (2) Preventing or removing water from contact with toxic-producing 
deposits;
    (3) Burying or otherwise treating all toxic or harmful materials 
within 30 days if such materials are subject to wind and water erosion, 
or within a lesser period designated by the regulatory authority. If 
storage of such materials is approved, the materials shall be placed on 
impermeable material and protected from erosion and contact with surface 
water. Coal waste ponds and other coal waste materials shall be 
maintained according to paragraph (g)(4) of this section and Sec. 
717.18 shall apply;
    (4) Burying or otherwise treating waste materials from coal 
preparation plants no later than 90 days after the cessation of the 
filling of the disposal area. Burial or treatment shall be in accordance 
with Sec. 717.14(e) of this part;
    (5) Casing, sealings, or otherwise managing boreholes, shafts, 
wells, and auger holes or other more or less horizontal holes to prevent 
pollution of surface or ground water and to prevent mixing of ground 
waters of significantly different quality. All boreholes that are within 
the permit area but are outside the surface coal mining area or which 
extend beneath the coal to be mined and into water-bearing strata shall 
be plugged permanently in a manner approved by the regulatory authority, 
unless boreholes have been approved for use in monitoring.
    (h) Ground water systems. (1) Underground operations shall be 
conducted to minimize adverse effects on ground water flow and quality, 
and to minimize offsite effects. The permittee will be responsible for 
performing monitoring according to paragraph (h)(2) of this section to 
ensure operations conform to this requirement.
    (2) Ground water levels, subsurface flow and storage 
characteristics, and the quality of ground water shall be monitored in a 
manner approved by the regulatory authority to determine the effects of 
underground coal mining operations on the quantity and quality of water 
in ground water systems at the mine area and in associated offsite 
areas. When operations are conducted in such a manner that may affect 
the ground water system, ground water levels and ground water quality 
shall be periodically monitored using wells which can adequately reflect 
changes in ground water quantity and quality resulting from such 
operations. Sufficient water wells must be used by the permittee. The 
regulatory authority may require drilling and development of additional 
wells if needed to adequately monitor the ground water system. As 
specified and approved by the regulatory authority, additional 
hydrologic tests, such as aquifer tests, must be undertaken by the 
permittee to demonstrate compliance with paragraph (h)(1) of this 
section.
    (i) Water rights and replacement. The permittee shall replace the 
water supply of an owner of interest in real property who obtains all or 
part of his supply of water for domestic, agricultural, industrial, or 
other legitimate use from an underground or surface source where such 
supply has been affected by contamination, diminution, or interruption 
proximately resulting from surface coal mine operation by the permittee.
    (j) Hydrologic impact of roads--(1) General. Access and haul roads 
and associated bridges, culverts, ditches, and road rights-of-way shall 
be constructed, maintained, and reclaimed so as to the extent possible, 
using the best technology currently available, prevent additional 
contributions of suspended solids to streamflow, or to runoff outside 
the permit area to the extent possible, using the best technology 
currently available. In no event shall the contributions be in excess of 
requirements set by applicable State or Federal law. All haul and access 
roads shall be removed and the land affected shall be regraded and 
revegetated consistent with the requirements of Sec. Sec. 717.14 and 
717.20, unless retention of a road is approved and assured of necessary 
maintenance to adequately control erosion.

[[Page 106]]

    (2) Construction. (i) All roads, insofar as possible, shall be 
located on ridges or on flatter and more stable slopes to minimize 
erosion. Stream fords are prohibited unless they are specifically 
approved by the regulatory authority as temporary routes across dry 
streams that will not adversely affect sedimentation and that will not 
be used for coal haulage. Other stream crossings shall be made using 
bridges, culverts, or other structures designed and constructed to meet 
the requirements of this paragraph. Roads shall not be located in active 
stream channels nor shall they be constructed or maintained in a manner 
that increases erosion or causes significant sedimentation or flooding. 
However, nothing in this paragraph will be construed to prohibit 
relocation of stream channels in accordance with paragraph (d) of this 
section.
    (ii) In order to minimize erosion and subsequent disturbances of the 
hydrologic balance, roads shall be constructed in compliance with the 
following grade restrictions or other grades determined by the 
regulatory authority to be necessary to control erosion:
    (A) The overall sustained grade shall not exceed 1v:10h (10 
percent).
    (B) The maximum grade greater than 10 percent shall not exceed 
1v:6.5h (15 percent) for more than 300 feet.
    (C) There shall not be more than 300 feet of grade exceeding 10 
percent within each 1,000 feet.
    (iii) All access and haul roads shall be adequately drained using 
structures such as, but not limited to, ditches, water barriers, cross 
drains, and ditch relief drains. For access and haul roads that are to 
be maintained for more than 1 year, water-control structures shall be 
designed with a discharge capacity capable of passing the peak runoff 
from a 10-year, 24-hour precipitation event. Drainage pipes and culverts 
shall be constructed to avoid plugging or collapse and erosion at inlets 
and outlets. Drainage ditches shall be provided at the toe of all cut 
slopes formed by construction of roads. Trash racks and debris basis 
shall be installed in the drainage ditches wherever debris from the 
drainage area could impair the functions of drainage and sediment 
control structures. Ditch relief and cross drains shall be spaced 
according to grade. Effluent limitations of paragraph (a) of this 
section shall not apply to drainage from access and haul roads located 
outside the disturbed area as defined in this section unless otherwise 
specified by the regulatory authority.
    (iv) Access and haul roads shall be surfaced with durable material. 
Toxic- or acid-forming substances shall not be used. Vegetation may be 
cleared only for the essential width necessary for road and associated 
ditch construction and to serve traffic roads.
    (3) Maintenance. (i) Access and haul roads shall be routinely 
maintained by means such as, but not limited to, wetting, scraping, or 
surfacing.
    (ii) Ditches, culverts, drains, trash racks, debris basins, and 
other structures serving to drain access and haul roads shall not be 
restricted or blocked in any manner that impedes drainage or adversely 
affects the intended purpose of the structure.
    (4) Access roads constructed for and used only to provide infrequent 
service to surface facilities, such as ventilators or monitoring devices 
shall be exempt from the requirements of paragraph (j)(2) of this 
section provided adequate stabilization to control erosion is achieved 
through use of alternative measures.
    (k) Hydrologic impacts of other transport facilities. Railroad 
loops, spurs, conveyors, or other transport facilities shall be 
constructed, maintained, and reclaimed to prevent additional 
contributions of suspended solids to streamflow, or to runoff outside 
the permit area to the extent possible, using the best technology 
currently available and to control other diminution or degradation of 
water quality and quantity. In no event shall contributions be in excess 
of requirements set by applicable State or Federal law.

[[Page 107]]

    (l) Discharge of waters into underground mines. Surface and ground 
waters shall not be discharged or diverted into underground mine 
workings.

(Secs. 101, 102, 201, 501, 503-510, 515-517, 523, and 701, Surface 
Mining Reclamation Act of 1977, Pub. L. 95-87 (30 U.S.C. 1201, 1202, 
1211, 1251-1260, 1265-1267, 1273, 1291))

[42 FR 62695, Dec. 13, 1977, as amended at 43 FR 8092, Feb. 27, 1978; 43 
FR 21459, May 18, 1978; 44 FR 30632, May 25, 1979; 44 FR 36887, June 22, 
1979; 44 FR 77452, Dec. 31, 1979]

    Effective Date Note: A document published at 44 FR 77452, Dec. 31, 
1979 suspended Sec. 717.17(a)(3)(i) insofar as it applies to total 
suspended solids (TSS) discharges.



Sec. 717.18  Dams constructed of or impounding waste material.

    (a) General. No waste material shall be used in or impounded by 
existing or new dams without the approval of regulatory authority. The 
permittee shall design, locate, construct, operate, maintain, modify, 
and abandon or remove all dams (used either temporarily or permanently) 
constructed of waste materials, in accordance with the requirements of 
this section.
    (b) Construction of dams. (1) Waste shall not be used in the 
construction of dams unless demonstrated through appropriate engineering 
analysis, to have no adverse effect on stability.
    (2) Plans for dams subject to this section, and also including those 
dams that do not meet the size or other criteria of Sec. 77.216(a) of 
this title, shall be approved by the regulatory authority before 
construction and shall contain the minimum plan requirements established 
by the Mining Enforcement and Safety Administration pursuant to Sec. 
77.216-2 of this title.
    (3) Construction requirements are as follows: (i) Design shall be 
based on the flood from the probable maximum precipitation event unless 
the permittee shows that the failure of the impounding structure would 
not cause loss of life or severely damage property or the environment, 
in which case, depending on site conditions, a design based on a 
precipitation event of no less than 100-year frequency may be approved 
by the regulatory authority.
    (ii) The design freeboard distance between the lowest point on the 
embankment crest and the maximum water elevation shall be at least 3 
feet to avoid overtopping by wind and wave action.
    (iii) Dams shall have minimum safety factors as follows:

------------------------------------------------------------------------
                                                                Minimum
                Case                     Loading condition      safety
                                                                factor
------------------------------------------------------------------------
I...................................  End of construction...         1.3
II..................................  Partial pool with              1.5
                                       steady seepage
                                       saturation.
III.................................  Steady seepage from            1.5
                                       spillway or decant
                                       crest.
IV..................................  Earthquake (cases II           1.0
                                       and III with seismic
                                       loading).
------------------------------------------------------------------------

    (iv) The dam, foundation, and abutment shall be stable under all 
conditions of construction and operation of the impoundment. Sufficient 
foundation investigations and laboratory testing shall be performed to 
determine the factors of safety of the dam for all loading conditions in 
paragraph (b)(3)(iii) of this section and for all increments of 
construction.
    (v) Seepage through the dam, foundation, and abutments shall be 
controlled to prevent excessive uplift pressures, internal erosion, 
sloughing, removal of material by solution, or erosion of material by 
loss into cracks, joints, and cavities. This may require the use of 
impervious blankets, pervious drainage zones or blankets, toe drains, 
relief wells, or dental concreting of jointed rock surface in contact 
with embankment materials.
    (vi) Allowances shall be made for settlement of the dams and the 
foundation so that the freeboard will be maintained.
    (vii) Impoundments created by dams of waste materials shall be 
subject to a minimum drawdown criteria that allows the facility to be 
evacuated by spillways or decants of 90 percent of the volume of water 
stored during the design precipitation event within 10 days.
    (viii) During construction of dams subject to this section, the 
structures shall be periodically inspected by a registered professional 
engineer to ensure construction according to the approved design. On 
completion of construction, the structure shall be certified by a 
registered professional engineer experienced in the field of dam

[[Page 108]]

construction as having been constructed in accordance with accepted 
professional practice and the approved design.
    (ix) A permanent identification marker, at least 6 feet high that 
shows the dam number assigned pursuant to Sec. 77.216-1 of this title 
and the name of the person operating or controlling the dam, shall be 
located on or immediately adjacent to each dam within 30 days of 
certification of design pursuant to this section.
    (4) All dams including those not meeting the size or other criteria 
of Sec. 77.216(a) of this title, shall be routinely inspected by a 
registered professional engineer, or someone under the supervision of a 
registered professional engineer, in accordance with Mining Enforcement, 
and Safety Administration regulations pursuant to Sec. 77.216-3 of this 
title.
    (5) All dams shall be routinely maintained. Vegetative growth shall 
be cut where necessary to facilitate inspection and repairs. Ditches and 
spillways shall be cleaned. Any combustible materials present on the 
surface, other than that used for surface stability such as mulch or dry 
vegetation, shall be removed and any other appropriate maintenance 
procedures followed.
    (6) All dams subject to this section shall be recertified annually 
as having been constructed and modified in accordance with current 
prudent enginnering practices to minimize the possibility of failures. 
Any changes in the geometry of the impounding structure shall be 
highlighted and included in the annual recertification report. These 
certifications shall include a report on existing and required 
monitoring procedures and instrumentation, the average and maximum 
depths and elevations of any impounded waters over the past year, 
existing storage capacity of impounding structures, any fires occurring 
in the material over the past year and any other aspects of the 
structures affecting their stability.
    (7) Any enlargements, reductions in size, reconstruction or other 
modification of the dams shall be approved by the regulatory authority 
before construction begins.
    (8) All dams shall be removed and the disturbed areas regraded, 
revegetated, and stabilized before the release of bond unless the 
regulatory authority approves retention of such dams as being compatible 
with an approved postmining land use (Sec. 715.13).



Sec. 717.19  [Reserved]



Sec. 717.20  Topsoil handling and revegetation.

    (a) Topsoil shall be removed as a separate operation from areas to 
be disturbed by surface operations, such as roads and areas upon which 
support facilities are to be sited. Selected overburden materials may be 
used instead of, or as a substitute for topsoil where the resulting soil 
medium is determined by the regulatory authority to be equal to or more 
suitable for revegetation. Topsoil shall be segregated, stockpiled, and 
protected from wind and water erosion, or contaminants. Disturbed areas 
no longer required for the conduct of mining operations shall be 
regraded, topsoil distributed, and revegetated.
    (b) The permittee shall establish on all land that has been 
disturbed by mining operations a diverse, effective, and permanent 
vegetative cover capable of self-regeneration and plant succession, and 
adequate to control soil erosion. Introduced species may be substituted 
for native species if approved by the regulatory authority. Introduced 
species shall meet applicable State and Federal seed or introduced 
species statutes, and may not include poisonous or potentially toxic 
species.



PART 721_FEDERAL INSPECTIONS--Table of Contents



Sec.
721.11 Extent.
721.12 Right of entry.
721.13 Inspections based on citizen requests.
721.14 Failure to give notice and lack of reasonable belief.

    Authority: Secs. 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 
U.S.C. 1201).

    Source: 42 FR 62700, Dec. 13, 1977, unless otherwise noted.



Sec. 721.11  Extent.

    The authorized representative of the Secretary shall conduct 
inspections of surface coal mining and reclamation

[[Page 109]]

operations subject to regulation under the Act--
    (a) On the basis of not less than two consecutive State inspection 
reports indicating a violation of the Act, regulations or permit 
conditions required by the Act;
    (b) On the basis of information provided by a State or any person 
which gives rise to a reasonable belief that the provisions of the Act, 
regulations or permit conditions required by the Act are being violated, 
or that a condition or practice exists which creates an imminent danger 
to the health or safety of the public, or is causing or can reasonably 
be expected to cause significant, imminent environmental harm to land, 
air, or water resources; and
    (c) On a random basis of at least one complete inspection each 6 
months. A complete inspection is an onsite review of the operator's 
compliance with all applicable standards in these regulations within the 
entire area disturbed or affected by mining.



Sec. 721.12  Right of entry.

    (a) Authorized representatives of the Secretary, without advance 
notice and upon presentation of appropriate credentials and without a 
search warrant, shall have the right of entry to, upon, or through any 
surface coal mining and reclamation operations or any premises in which 
any records required to be maintained are located.
    (b) The authorized representatives may at reasonable times, and 
without delay, have access to and copy any records, and inspect any 
monitoring equipment or method of operation required under this Act, the 
regulations or the permit.



Sec. 721.13  Inspections based on citizen requests.

    (a) Citizens reports. (1) Any person who believes that there is a 
violation of the Act, regulations or permit conditions rquired by the 
Act or that any imminent danger or harm exists may report this 
information to the Office of Surface Mining Reclamation and Enforcement. 
Written reports must be signed and include a phone number where the 
reporting party can be contacted. Oral reports will be accepted but must 
be followed by a written and signed statement including the information 
reported. The complaint or other information shall be considered as 
having a reasonable basis if it alleges facts which, if proven to be 
true, would be sufficient to show a violation of the Act, regulations or 
permit. Unless the Office has reason to believe that the information is 
incorrect, or determines that even if true it would not constitute a 
violation, the Office shall conduct an inspection within 15 days of 
receipt of the complaint. If the complaint alleges an imminent danger or 
harm, the inspection shall be conducted promptly.
    (2) The identity of any person supplying information to the Office 
relating to possible violations or imminent dangers or harms shall 
remain confidential with the Office, if requested by the person 
supplying the information, unless disclosure is required under the 
Freedom of Information Act (5 U.S.C. 552) or by other Federal law.
    (b) Right to accompany the authorized representative of the 
Secretary. (1) If a Federal inspection is conducted as a result of 
information provided to the Office, the person who provided the 
information shall be notified when the inspection is to occur and the 
person will be allowed to accompany the authorized representative of the 
Secretary during the inspection.
    (2) Any person accompanying an authorized representative of the 
Secretary has a right of entry to, upon and through the mining and 
reclamation operations about which he supplied information, only if he 
is in the presence of and is under the control, direction and 
supervision of the authorized representative while on the mine property.
    (c) Notification of results of investigation. Within 10 days of the 
inspection or, if no inspection, within 15 days of the complaint, the 
Office shall notify the person in writing of the following--
    (1) The results of the investigation, including a description of any 
inspection which occurred and any enforcement action taken; copies of 
Federal inspection reports, notices of violation, and cessation orders 
may be forwarded to the person in satisfaction of this requirement;

[[Page 110]]

    (2) If no inspection was conducted, an explanation of the reason for 
not inspecting;
    (3) A statement as to the person's right to informal review of the 
actions or inactions of the Office.
    (4) The permittee shall receive copies of all such reports which 
have not already been given to the permittee, except that the name of 
the complainant shall be removed.
    (d) Review of action of local offices. A person who does not agree 
with the action taken by the Office on their report may request the 
Regional Director to review the complaint and actions taken. The 
Regional Director shall advise the person in writing, within 30 days of 
the results of the review. Informal review under this subsection shall 
not affect any rights to formal review or a citizen's suit.



Sec. 721.14  Failure to give notice and lack of reasonable belief.

    No notice of violation or cessation order may be vacated by reason 
of failure to give notice required by the Act or these regulations prior 
to the inspection; or by reason of a subsequent determination that prior 
to the inspection the Office did not have information sufficient to 
create a reasonable belief that a violation had occurred.



PART 722_ENFORCEMENT PROCEDURES--Table of Contents



Sec.
722.1 Scope.
722.11 Imminent dangers and harms.
722.12 Non-imminent dangers or harms.
722.13 Failure to abate.
722.14 Service of notices of violation, cessation orders, and orders to 
          show cause.
722.15 Informal public hearing.
722.16 Pattern of violations.
722.17 Inability to comply.

    Authority: Secs. 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 
U.S.C. 1201).

    Source: 42 FR 62701, Dec. 13, 1977, unless otherwise noted.



Sec. 722.1  Scope.

    The regulations of this part set forth general procedures governing 
issuance of orders of cessation, notices of violation, and orders to 
show cause under section 521 of the Act.



Sec. 722.11  Imminent dangers and harms.

    (a) If an authorized representative of the Secretary finds 
conditions or practices, or violations of any requirement of the Act, or 
any requirement of this chapter applicable during the interim regulatory 
program, which create an imminent danger to the health or safety of the 
public, the authorized representative shall immediately order a 
cessation of surface coal mining and reclamation operations or that 
portion of the operation relevant to the condition, practice, or 
violation.
    (b) If an authorized representative of the Secretary finds 
conditions or practices, or violations of any requirement of the Act, or 
any requirement of this chapter applicable during the interim regulatory 
program, which are causing, or can reasonably be expected to cause, 
significant, imminent environmental harm to land, air, or water 
resources, the authorized representative shall immediately order a 
cessation of surface coal mining and reclamation operations or that 
portion of the operation relevant to the condition, practice, or 
violation.
    (c) Surface coal mining and reclamation operations conducted by any 
person without a valid surface coal mining permit required by this 
subchapter constitute a condition or practice which causes or can 
reasonably be expected to cause significant, imminent environmental harm 
to land, air or water resources, unless such operations are an integral, 
uninterrupted extension of previously permitted operations, and the 
person conducting such operations has filed a timely and complete 
application for a permit to conduct such operations.
    (d) An authorized representative of the Secretary shall impose 
affirmative obligations on an operator which the authorized 
representative deems necessary to abate the condition, practice, or 
violation if--
    (1) A cessation order is issued under paragraph (a) or (b) of this 
section; and
    (2) The cessation of mining or reclamation activities will not 
completely abate the imminent danger or harm or eliminate the practices 
or conditions that contributed to the imminent danger or harm.

[[Page 111]]

    (e) When imposing affirmative obligations under this section, the 
authorized representative of the Secretary shall require abatement of 
the imminent danger or harm in the most expeditious manner physically 
possible. The affirmative obligation shall include a time by which 
abatement shall be accomplished and may include, among other things, the 
use of existing or additional personnel and equipment.
    (f) Reclamation operations not directly the subject of the order or 
affirmative obligation shall continue during any cessation order.
    (g) An authorized representative of the Secretary shall terminate a 
cessation order issued under paragraph (a) or (b) of this section by 
written notice when the authorized representative determines that the 
conditions or practices or violations that contributed to the imminent 
danger to life or the environment have been eliminated.

[42 FR 62701, Dec. 13, 1977, as amended at 45 FR 67501, Oct. 10, 1980; 
47 FR 18558, Apr. 29, 1982]



Sec. 722.12  Non-imminent dangers or harms.

    (a) If an authorized representative of the Secretary finds 
conditions or practices, or violations of any requirement of the Act, or 
of any requirement of this chapter applicable during the interim 
regulatory program, but such violations do not create an imminent danger 
to the health or safety of the public, or are not causing and cannot 
reasonably be expected to cause significant, imminent environmental harm 
to land, air, or water resources, the authorized representative shall 
issue a notice of violation fixing a reasonable time for abatement.
    (b) An authorized representative of the Secretary may extend the 
time to abate a violation by written notice if the failure to abate 
within the time set was not caused by the permittee's lack of diligence.
    (c) An authorized representative of the Secretary may establish 
interim steps in an abatement period. If the permittee fails to meet any 
interim step within the time set, the authorized representative may 
extend the time set for meeting the interim step, in accordance with 
this section, or may issue a cessation order pursuant to Sec. 722.13 of 
this part.
    (d) The total time for abatement as originally fixed and 
subsequently extended shall not exceed 90 days except upon a showing by 
the permittee that it is not feasible to abate the violation within 90 
calendar days due to one or more of the circumstances in Sec. 
722.12(e). An extended abatement date pursuant to this section shall not 
be granted when the permittee's failure to abate within 90 days has been 
caused by a lack of diligence or intentional delay by the permittee in 
completing the remedial action required.
    (e) Circumstances which may qualify a surface coal mining operation 
for an abatement period of more than 90 days are:
    (1) Where the permittee of an ongoing permitted operation has timely 
applied for and diligently pursued a permit renewal or other necessary 
approval of designs or plans but such permit or approval has not been or 
will not be issued within 90 days after a valid permit expires or is 
required, for reasons not within the control of the permittee;
    (2) Where there is a valid judicial order precluding abatement 
within 90 days as to which the permittee has diligently pursued all 
rights of appeal and as to which he or she has no other effective legal 
remedy;
    (3) Where the permittee cannot abate within 90 days due to a labor 
strike;
    (4) Where climatic conditions preclude abatement within 90 days, or 
where, due to climatic conditions, abatement within 90 days clearly:
    (i) Would cause more environmental harm than it would prevent; or
    (ii) Requires action that would violate safety standards established 
by statute or regulation under the Mine Safety and Health Act.
    (f) Whenever an abatement time in excess of 90 days is permitted, 
interim abatement measures shall be imposed to the extent necessary to 
minimize harm to the public or the environment.
    (g) If any of the conditions in paragraphs (e) (1) through (4) 
exist, the permittee may request the authorized representative to grant 
an abatement period exceeding 90 days. The authorized representative 
shall not grant such an

[[Page 112]]

abatement period without the concurrence of the Director or his or her 
designee and the abatement period granted shall not exceed the shortest 
possible time necessary to abate the violation. The permittee shall have 
the burden of establishing by clear and convincing proof that he or she 
is entitled to an extension under the provisions of Sec. 722.12 (d) and 
(e). In determining whether or not to grant an abatement period 
exceeding 90 days the authorized representative may consider any 
relevant written or oral information from the permittee or any other 
source. The authorized representative shall promptly and fully document 
in the file his or her reasons for granting or denying the request. The 
inspector's immediate supervisor shall review this document before 
concurring in or disapproving the extended abatement date and shall 
promptly and fully document the reasons for his or her concurrence or 
disapproval in the file.
    (h) Any determination made under paragraph (g) shall be in writing 
and shall contain a right of appeal to the Office of Hearings and 
Appeals in accordance with 43 CFR 4.1281 and the regulations at 43 CFR 
part 4.
    (i) No extension granted under paragraph (b) may exceed 90 days in 
length. Where the condition or circumstance which prevented abatement 
within 90 days exists at the expiration of any such extension, the 
permittee may request a further extension in accordance with the 
procedures of paragraph (g).

[42 FR 62701, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1978, as amended at 45 
FR 67501, Oct. 10, 1980; 46 FR 41704, Aug. 17, 1981]



Sec. 722.13  Failure to abate.

    An authorized representative of the Secretary shall order cessation 
of surface coal mining and reclamation operations, or the portion 
relevant to the violation, when a notice of violation has been issued 
under Sec. 722.12 of this part and the permittee fails to abate the 
violation within the time originally fixed or subsequently extended. In 
a cessation order issued under this section, the authorized 
representative shall impose affirmative obligations to abate the 
violation in the manner provided in Sec. 722.11 of this part. 
Reclamation operations not directly the subject of the order or 
affirmative obligation shall continue during any cessation order. A 
cessation order issued under this section shall be terminated as 
provided in Sec. 722.11 of this part.



Sec. 722.14  Service of notices of violation, cessation orders, and orders to 

show cause.

    (a) A notice of violation or cessation order shall be served on the 
person to whom it is directed or his designated agent promptly after 
issuance, as follows:
    (1) By tendering a copy at the surface coal mining and reclamation 
operation to the designated agent or to the person to whom it is 
directed. If no such agent is reasonably available, a copy may be 
tendered to the individual who, based upon reasonable inquiry by the 
authorized representative, appears to be in charge of the surface coal 
mining and reclamation operation referred to in the notice or order. If 
no such individual can be located at the site, a copy may be tendered to 
any individual at the site who appears to be an employee or agent of the 
person to whom the notice or order is issued. Service shall be complete 
upon tender of the notice or order and shall not be deemed incomplete 
because of refusal to accept.
    (2) As an alternative to paragraph (a)(1) of this section, service 
may be made by sending a copy of the notice or order by certified mail 
or by hand to the person to whom it is issued or his or her designated 
agent, or by any alternative means consistent with the rules governing 
service of a summons and complaint under rule 4 of the Federal Rules of 
Civil Procedure. Service shall be complete upon tender of the notice or 
order or of the certified mail and shall not be deemed incomplete 
because of refusal to accept.
    (b) A show cause order, or a vacation, modification or termination 
of a notice or order, may be served on the person to whom it is issued 
in either manner provided in paragraph (a) of this section.
    (c) Designation by any person of an agent for service of notices and 
orders shall be made in a conspicuous, easy-

[[Page 113]]

to-read manner on the mine identification sign, or on the mine bulletin 
board posted by the minesite office.
    (d) The Office shall furnish copies of notices and orders to the 
State regulatory authority, if any, after their issuance. The Office may 
furnish copies to any person having an interest in the surface coal 
mining and reclamation operation or the permit area, such as the owner 
of the fee, a corporate officer of the permittee, or the bonding 
company.

(Surface Mining Control and Reclamation Act of 1977, secs. 201, 501, 
521(a)(5) (30 U.S.C. 1211, 1251, 1271(a)(5)))

[45 FR 2628, Jan. 11, 1980, as amended at 56 FR 28445, June 20, 1991]



Sec. 722.15  Informal public hearing.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
notice of violation or cessation order which requires cessation of 
mining, expressly or by necessary implication, shall expire within 30 
days after it is served unless an informal public hearing has been held 
within that time. The hearing shall be held at or reasonably close to 
the minesite so that it may be viewed during the hearing or at any other 
location acceptable to the Office and the person to whom the notice or 
order was issued. The Office of Surface Mining office nearest to the 
minesite shall be deemed to be reasonably close to the minesite unless a 
closer location is requested and agreed to by the Office. Expiration of 
a notice or order shall not affect the Office's right to assess civil 
penalties with respect to the period during which the notice or order 
was in effect. No hearing will be required where the condition, practice 
or violation in question has been abated, or the hearing has been 
waived. For purposes of this section only, mining means (1) extracting 
coal from the earth or from coal waste piles and transporting it within 
or from the permit area, and (2) the processing, cleaning, 
concentrating, preparing or loading of coal where such operations occur 
at a place other than at a minesite.
    (b) A notice of violation or cessation order shall not expire as 
provided in paragraph (a) of this section if the informal public hearing 
has been waived or if, with the consent of the person to whom the notice 
or order was issued, the informal public hearing is held later than 30 
days after the notice or order was served. For purposes of this section:
    (1) The informal public hearing will be deemed waived if the person 
to whom the notice or order is issued:
    (i) Is informed, by written notice served in the manner provided in 
paragraph (b)(2) of this section, that he will be deemed to have waived 
an informal public hearing unless he requests one within 30 days after 
service of the notice or order, and
    (ii) Fails to request an informal public hearing within that time.
    (2) The written notice referred to in paragraph (b)(1)(i) of this 
section shall be delivered to such person by an authorized 
representative or sent by certified mail to such person no later than 
five days after the notice or order is served on such person.
    (3) The person to whom the notice or order is issued shall be deemed 
to have consented to an extension of the time for holding the informal 
public hearing if his request is received on or after the 21st day after 
the service of the notice of order. The extension of time shall be equal 
to the number of days elapsed after the 21st day.
    (c) The Office shall give as much advance notice as is practicable 
of the time, place, and subject matter of the informal public hearing 
to:
    (1) The person to whom the notice or order was issued;
    (2) Any person who filed a report which led to the notice or order; 
and
    (3) The State regulatory authority, if any.
    (d) The Office shall also post notice of the hearing at the regional 
district or field office closest to the minesite, and publish it, where 
practicable, in a newspaper of general circulation in the area of the 
mine.
    (e) Section 554 of Title 5 of the United States Code, regarding 
requirements for formal adjudicatory hearings, shall not govern the 
conduct of these informal public hearings. An informal public hearing 
shall be conducted by a representative of the Office, who may accept 
oral or written arguments and any other relevant information from any 
person attending.

[[Page 114]]

    (f) Within five business days after the date of the informal public 
hearing, the Office shall affirm, modify, or vacate the notice or order 
in writing and send its decision to:
    (1) The person to whom the notice or order was issued;
    (2) Any person who filed a report which led to the notice or order; 
and
    (3) The State regulatory authority, if any.
    (g) The granting or waiver of an informal public hearing shall not 
affect the right of any person to formal review under sections 518(b), 
521(a)(4), or 525 of the Act.
    (h) The person conducting the hearing for the Office shall determine 
whether or not the minesite should be viewed during the hearing. In 
making this determination the only consideration shall be whether a view 
of the minesite will assist the person conducting the hearing in 
reviewing the appropriateness of the enforcement action or the required 
remedial action.

(Surface Mining Control and Reclamation Act of 1977, secs. 201, 501, 
521(a)(5) (30 U.S.C. 1211, 1251, 1271(a)(5)))

[45 FR 2628, Jan. 11, 1980]



Sec. 722.16  Pattern of violations.

    (a) The regulations of this section set forth the procedures 
governing the suspension or revocation of State permits and rights to 
mine under this Act based on a pattern of violations arising during 
Federal inspections during the initial regulatory program.
    (b) Definitions. As used in this section--
    (1) Violations of the same or related requirements of the Act, 
regulations or permit conditions means noncompliance with any single 
section of parts 715, 716, or 717 of this chapter.
    (2) Violations of different requirements of the Act, regulations, or 
permit conditions means noncompliance with different sections of parts 
715, 716, or 717 of this chapter.
    (3) Unwarranted failure to comply means the failure of a permittee 
to prevent the occurrence of any violation of his permit or any 
requirement of the Act or these regulations due to indifference, lack of 
diligence, lack of reasonable care; or the failure to abate any 
violation of such permit, the Act or regulations due to indifference, 
lack of diligence, or lack of reasonable care.
    (4) Willful violation means an intentional action or omission which 
violates the Act, regulations or permit conditions required under the 
Act.
    (5) Inspection as used in this section means any visit to the mine.
    (c) Order to show cause. (1) If the Director determines that a 
pattern of violations of any requirements of the Act, the regulations, 
or a permit condition imposed under the Act or regulations exists, or 
has existed, and that such violations are caused by the unwarranted 
failure of the permittee or were willful violations, the Director shall 
issue an order to the permittee to show cause why the permit should not 
be suspended or revoked.
    (2) The Director may determine that a pattern of violations exists 
or has existed, after considering the circumstances, including--
    (i) The number of willful violations or violations caused by 
unwarranted failure to comply with the same or related requirements of 
the Act, regulations, or permit conditions during two or more Federal 
inspections;
    (ii) The number of willful violations or violations caused by 
unwarranted failure to comply with different requirements of the Act, 
regulations, or permit conditions; and
    (iii) The extent to which the violations were isolated departures 
from lawful conduct.
    (3) Violations of the same or related requirements of the Act, 
regulations, or permit conditions required by the Act during three or 
more Federal inspections within any 12-month period which were either 
caused by the unwarranted failure of the permittee to comply with the 
Act, the regulations or permit conditions required by the Act, or were 
willful violations, shall constitute a pattern of violations. A show 
cause order shall issue unless the Director finds that it would not 
further enforcement of the performance standards of the Act.
    (d) Suspension or revocation of permit. (1) The order to show cause 
shall be issued and a public hearing, if requested, shall be conducted 
under the procedures of 43 CFR part 4.

[[Page 115]]

    (2) If the Secretary finds that a pattern of violations exists or 
has existed, the permit and right to mine under this Act shall be either 
suspended or revoked and the permittee directed to complete necessary 
corrective measures and reclamation operations.
    (e) Whenever a permittee fails to abate a violation contained in a 
notice of violation or cessation order within the abatement period set 
in the notice or order or as subsequently extended, the Director shall 
review the permittee's history of violations to determine whether a 
pattern of violations exists pursuant to this section, and shall issue 
an order to show cause as appropriate pursuant to 30 CFR 723.15(b)(2).

[42 FR 62701, Dec. 13, 1977 and 46 FR 58783, Sept. 4, 1980]



Sec. 722.17  Inability to comply.

    (a) Neither a notice of violation nor a cessation order issued under 
this part may be vacated because of inability to comply.
    (b) A permittee may not be deemed to have shown good cause for not 
suspending or revoking a permit by showing inability to comply.
    (c) Unless caused by lack of diligence, inability to comply may be 
considered in mitigation of the amount of a civil penalty under part 723 
of this chapter and of the duration of the suspension of the permit 
under Sec. 722.16 of this part.



PART 723_CIVIL PENALTIES--Table of Contents



Sec.
723.1 Scope.
723.2 Objective.
723.11 How assessments are made.
723.12 When penalty will be assessed.
723.13 Point system for penalties.
723.14 Determination of amount of penalty.
723.15 Assessment of separate violations for each day.
723.16 Waiver of use of formula to determine civil penalty.
723.17 Procedures for assessment of civil penalties.
723.18 Procedures for assessment conference.
723.19 Request for hearing.
723.20 Final assessment and payment of penalty.

    Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C. 
3701.

    Source: 45 FR 58783, Sept. 4, 1980, unless otherwise noted.



Sec. 723.1  Scope.

    This part covers the assessment of civil penalties under section 518 
of the Act for violations of a permit condition, any provision of Title 
V of the Act, or any implementing regulations, except for the assessment 
of individual civil penalties under section 518(f), which is covered by 
part 724. This part governs when a civil penalty is assessed and how the 
amount is determined, and sets forth applicable procedures. This part 
applies to cessation orders and notices of violation issued under part 
722 of this chapter during a Federal inspection.

[53 FR 3674, Feb. 8, 1988]



Sec. 723.2  Objective.

    Civil penalties are assessed under section 518 of the Act and this 
part to deter violations and to ensure maximum compliance with the terms 
and purpose of the Act on the part of the coal mining industry.



Sec. 723.11  How assessments are made.

    The Office shall review each notice of violation and cessation order 
in accordance with the assessment procedures described in Sec. Sec. 
723.12, 723.13, 723.14, 723.15, and 723.16 to determine whether a civil 
penalty will be assessed, the amount of the penalty, and whether each 
day of a continuing violation will be deemed a separate violation for 
purposes of the total penalty assessed.



Sec. 723.12  When penalty will be assessed.

    (a) The Office shall assess a penalty for each cessation order.
    (b) The Office shall assess a penalty for each notice of violation, 
if the violation is assigned 31 points or more under the point system 
described in Sec. 723.13.
    (c) The Office may assess a penalty for each notice of violation 
assigned 30 points or less under the point system described in Sec. 
723.13. In determining whether to assess a penalty, the Office shall 
consider the factors listed in Sec. 723.13(b).

[[Page 116]]



Sec. 723.13  Point system for penalties.

    (a) The Office shall use the point system described in this section 
to determine the amount of the penalty and, in the case of notices of 
violation, whether a mandatory penalty should be assessed as provided in 
Sec. 723.12(b).
    (b) Points shall be assigned as follows:
    (1) History of previous violations. The Office shall assign up to 30 
points based on the history of previous violations. One point shall be 
assigned for each past violation contained in a notice of violations. 
Five points shall be assigned for each violation (but not a condition or 
practice) contained in a cessation order. The history of previous 
violations for the purpose of assigning points, shall be determined and 
the points assigned with respect to a particular surface coal mining 
operation. Points shall be assigned as follows:
    (i) A violation shall not be counted if the notice or order is the 
subject of pending administrative or judicial review or if the time to 
request such review or to appeal any administrative or judicial decision 
has not expired, and thereafter it shall be counted for only one year.
    (ii) No violation for which the notice or order has been vacated 
shall be counted; and
    (iii) Each violation shall be counted without regard to whether it 
led to a civil penalty assessment.
    (2) Seriousness. The Office shall assign up to 30 points based on 
the seriousness of the violation, as follows:
    (i) Probability of occurrence. The Office shall assign up to 15 
points based on the probability of the occurrence of the event which a 
violated standard is designed to prevent. Points shall be assessed 
according to the following schedule:

                        Probability of Occurrence
------------------------------------------------------------------------
                                                                  Points
------------------------------------------------------------------------
None...........................................................        0
Insignificant..................................................      1-4
Unlikely.......................................................      5-9
Likely.........................................................    10-14
Occurred.......................................................       15
------------------------------------------------------------------------

    (ii) Extent of potential or actual damage. The Office shall assign 
up to 15 points, based on the extent of the potential or actual damage, 
in terms of area and impact on the public or environment, as follows:
    (A) If the damage or impact which the violated standard is designed 
to prevent would remain within the permit area, the Office shall assign 
zero to seven points, depending on the duration and extent of the damage 
or impact.
    (B) If the damage or impact which the violated standard is designed 
to prevent would extend outside the permit area, the Office shall assign 
eight to fifteen points, depending on the duration and extent of the 
damage or impact.
    (iii) Alternative. In the case of a violation of an administrative 
requirement, such as a requirement to keep records, the Office shall, in 
lieu of paragraphs (i) and (ii), assign up to 15 points for seriousness, 
based upon the extent to which enforcement is obstructed by the 
violation.
    (3) Negligence. (i) The Office shall assign up to 25 points based on 
the degree of fault of the person to whom the notice or order was issued 
in causing or failing to correct the violation, condition, or practice 
which led to the notice or order, either through act or omission. Points 
shall be assessed as follows:
    (A) A violation which occurs through no negligence shall be assigned 
no penalty points for negligence;
    (B) A violation which is caused by negligence shall be assigned 12 
points or less, depending on the degree of negligence;
    (C) A violation which occurs through a greater degree of fault than 
negligence shall be assigned 13 to 25 points, depending on the degree of 
fault.
    (ii) In determining the degree of negligence involved in a violation 
and the number of points to be assigned, the following definitions 
apply:
    (A) No negligence means an inadvertent violation which was 
unavoidable by the exercise of reasonable care.
    (B) Negligence means the failure of a permittee to prevent the 
occurrence of any violation of his or her permit or any requirement of 
the Act or this chapter due to indifference, lack of

[[Page 117]]

diligence, or lack of reasonable care, or the failure to abate any 
violation of such permit or the Act due to indifference, lack of 
diligence, or lack of reasonable care.
    (C) A greater degree of fault than negligence means reckless, 
knowing, or intentional conduct.
    (iii) In calculating points to be assigned for negligence, the acts 
of all persons working on the surface coal mining and reclamation site 
shall be attributed to the person to whom the notice or order was 
issued, unless than person establishes that they were acts of deliberate 
sabotage.
    (4) Good faith in attemping to achieve compliance. (i) The Office 
shall add points based on the degree of good faith of the person to whom 
the notice or order was issued in attempting to achieve rapid compliance 
after notification of the violation. Points shall be assigned as 
follows:

                          Degree of Good Faith
------------------------------------------------------------------------
                                                                Points
------------------------------------------------------------------------
Rapid compliance...........................................    -1 to -10
Normal compliance..........................................            0
------------------------------------------------------------------------

    (ii) The following definitions shall apply under paragraph (b)(4)(i) 
of this section:
    (A) Rapid compliance means that the person to whom the notice or 
order was issued took extraordinary measures to abate the violation in 
the shortest possible time and that abatement was achieved before the 
time set for abatement.
    (B) Normal compliance means the person to whom the notice or order 
was issued abated the violation within the time given for abatement.
    (iii) If the consideration of this criterion is impractical because 
of the length of the abatement period, the assessment may be made 
without considering this criterion and may be reassessed after the 
violation has been abated.



Sec. 723.14  Determination of amount of penalty.

    The Office shall determine the amount of any civil penalty by 
converting the total number of points assigned under 30 CFR 723.13 to a 
dollar amount, according to the following schedule:

------------------------------------------------------------------------
                            Points                              Dollars
------------------------------------------------------------------------
1............................................................         32
2............................................................         64
3............................................................         86
4............................................................        108
5............................................................        110
6............................................................        132
7............................................................        254
8............................................................        276
9............................................................        298
10...........................................................        320
11...........................................................        342
12...........................................................        364
13...........................................................        386
14...........................................................        508
15...........................................................        530
16...........................................................        552
17...........................................................        574
18...........................................................        596
19...........................................................        618
20...........................................................        640
21...........................................................        662
22...........................................................        684
23...........................................................        706
24...........................................................        728
25...........................................................        750
26...........................................................        860
27...........................................................      1,070
28...........................................................      1,080
29...........................................................      1,090
30...........................................................      1,100
31...........................................................      1,210
32...........................................................      1,320
33...........................................................      2,430
34...........................................................      2,540
35...........................................................      2,650
36...........................................................      2,760
37...........................................................      2,870
38...........................................................      2,980
39...........................................................      3,090
40...........................................................      3,200
41...........................................................      3,310
42...........................................................      3,420
43...........................................................      3,530
44...........................................................      3,640
45...........................................................      3,750
46...........................................................      3,860
47...........................................................      3,970
48...........................................................      5,080
49...........................................................      5,190
50...........................................................      5,300
51...........................................................      5,410
52...........................................................      5,520
53...........................................................      5,630
54...........................................................      5,740
55...........................................................      5,850
56...........................................................      5,960
57...........................................................      6,070
58...........................................................      6,180
59...........................................................      6,290
60...........................................................      6,400
61...........................................................      6,510
62...........................................................      6,620
63...........................................................      6,730
64...........................................................      6,840
65...........................................................      6,950
66...........................................................      7,060
67...........................................................      7,170
68...........................................................      7,280
69...........................................................      7,390
70...........................................................      7,500
------------------------------------------------------------------------


[[Page 118]]


[45 FR 58783, Sept. 4, 1980, as amended at 62 FR 63276, Nov. 28, 1997; 
66 FR 58646, Nov. 21, 2001; 70 FR 70700, Nov. 22, 2005; 74 FR 34492, 
July 15, 2009]



Sec. 723.15  Assessment of separate violations for each day.

    (a) The Office may assess separately a civil penalty for each day 
from the date of issuance of the notice of violation or cessation order 
to the date set for abatement of the violation. In determining whether 
to make such an assessment, the Office shall consider the factors listed 
in 30 CFR 723.13 and may consider the extent to which the person to whom 
the notice or order was issued gained any economic benefit as a result 
of a failure to comply. For any violation which continues for two or 
more days and which is assigned more than 70 points under 30 CFR 
723.13(b), the Office shall assess a civil penalty for a minimum of two 
separate days.
    (b) In addition to the civil penalty provided for in paragraph (a), 
whenever a violation contained in a notice of violation or cessation 
order has not been abated within the abatement period set in the notice 
or order or as subsequently extended pursuant to section 521(a) of the 
Act, a civil penalty of not less than $1,025 shall be assessed for each 
day during which such failure to abate continues, except that:
    (1)(i) If suspension of the abatement requirements of the notice or 
order is ordered in a temporary relief proceeding under section 525(c) 
of the Act, after a determination that the person to whom the notice or 
order was issued will suffer irreparable loss or damage from the 
application of the requirements, the period permitted for abatement 
shall not end until the date on which the Office of Hearing and Appeals 
issues a final order with respect to the violation in question; and
    (ii) If the person to whom the notice or order was issued initiates 
review proceedings under section 526 of the Act with respect to the 
violation, in which the obligations to abate are suspended by the court 
pursuant to section 526(c) of the Act, the daily assessment of a penalty 
shall not be made for any period before entry of a final order by the 
court.
    (2) Such penalty for the failure to abate a violation shall not be 
assessed for more than 30 days for such violation. If the permittee has 
not abated the violation within the 30-day period, the Office shall take 
appropriate action pursuant to sections 518(e), 518(f), 521(a)(4) or 
521(c) of the Act within 30 days to ensure that abatement occurs or to 
ensure that there will not be a reoccurrence of the failure to abate.

[45 FR 58783, Sept. 4, 1980, as amended at 62 FR 63276, Nov. 28, 1997; 
66 FR 58647, Nov. 21, 2001; 70 FR 70700, Nov. 22, 2005]



Sec. 723.16  Waiver of use of formula to determine civil penalty.

    (a) The Director, upon his own initiative or upon written request 
received within 15 days of issuance of a notice of violation or a 
cessation order, may waive the use of formula contained in 30 CFR 723.13 
to set the civil penalty, if he or she determines that, taking into 
account exceptional factors present in the particular case, the penalty 
is demonstrably unjust. However, the Director shall not waive the use of 
the formula or reduce the proposed assessment on the basis of an 
argument that a reduction in the proposed penalty could be used to abate 
violations of the Act, this chapter, any applicable program, or any 
condition of any permit or exploration approval. The basis for every 
waiver shall be fully explained and documented in the records of the 
case.
    (b) If the Director waives the use of the formula, he or she shall 
use the criteria set forth in 30 CFR 723.13(b) to determine the 
appropriate penalty. When the Director has elected to waive the use of 
the formula, he or she shall give a written explanation of the basis for 
the assessment made to the person to whom the notice or order was 
issued.



Sec. 723.17  Procedures for assessment of civil penalties.

    (a) Within 15 days of service of a notice or order, the person to 
whom it was issued may submit written information about the violation to 
the Office and to the inspector who issued the notice of violation or 
cessation order. The Office shall consider any information so submitted 
in determining the facts surrounding the violation and the amount of the 
penalty.

[[Page 119]]

    (b) The Office shall serve a copy of the proposed assessment and of 
the work sheet showing the computation of the proposed assessment on the 
person to whom the notice or order was issued, by certified mail, or by 
any alternative means consistent with the rules governing service of a 
summons and complaint under Rule 4 of the Federal Rules of Civil 
Procedure, within 30 days of the issuance of the notice or order. If a 
copy of the proposed assessment and work sheet or the certified mail is 
tendered at the address of that person set forth in the sign required 
under 30 CFR 715.12(b) or at any address at which that person is in fact 
located, and he or she refuses to accept delivery or to collect such 
documents, the requirements of this paragraph shall be deemed to have 
been complied with upon such tender.
    (c) Unless a conference has been requested, the Office shall review 
and reassess any penalty if necessary to consider facts which were not 
reasonably available on the date of issuance of the proposed assessment 
because of the length of the abatement period. The Office shall serve a 
copy of any such reassessment and of the worksheet showing the 
computation of the reassessment in the manner provided in paragraph (b) 
of this section, within 30 days after the date the violation is abated.

[45 FR 58783, Sept. 4, 1980, as amended at 56 FR 28445, June 20, 1991]



Sec. 723.18  Procedures for assessment conference.

    (a) The Office shall arrange for a conference to review the proposed 
assessment or reassessment, upon written request of the person to whom 
the notice or order was issued, if the request is received within 30 
days from the date the proposed assessment or reassessment is received.
    (b)(1) The Office shall assign a conference officer to hold the 
assessment conference. The assessment conference shall not be governed 
by section 554 of title 5 of the United States Code, regarding 
requirements for formal adjudicatory hearings. The assessment conference 
shall be held within 60 days from the date the conference request is 
received or the end of the abatement period, whichever is later.
    (2) The Office shall post notice of the time and place of the 
conference at the regional, district or field office closest to the mine 
at least 5 days before the conference. Any person shall have a right to 
attend and participate in the conference.
    (3) The conference officer shall consider all relevant information 
on the violation. Within 30 days after the conference is held, the 
conference officer shall either:
    (i) Settle the issues, in which case a settlement agreement shall be 
prepared and signed by the conference officer on behalf of the Office 
and by the person assessed; or
    (ii) Affirm, raise, lower, or vacate the penalty.
    (4) An increase or reduction of a proposed civil penalty assessment 
of more than 25 percent and more than $500 shall not be final and 
binding on the Secretary, until approved by the Director or his 
designee.
    (c) The conference officer shall promptly serve the person assessed 
with a notice of his or her action in the manner provided in 30 CFR 
723.17(b) and shall include a worksheet if the penalty has been raised 
or lowered. The reasons for the conference officer's action shall be 
fully documented in the file.
    (d)(1) If a settlement agreement is entered into, the person 
assessed will be deemed to have waived all rights to further review of 
the violation or penalty in question, except as otherwise expressly 
provided for in the settlement agreement. The settlement agreement shall 
contain a clause to this effect.
    (2) If full payment of the amount specified in the settlement 
agreement is not received by the Office within 30 days after the date of 
signing, the Office may enforce the agreement or rescind it and proceed 
according to paragraph (b)(3)(ii) of this section within 30 days from 
the date of the rescission.
    (e) The conference officer may terminate the conference when he 
determines that the issues cannot be resolved or that the person 
assessed is not diligently working toward resolution of the issues.

[45 FR 58783, Sept. 4, 1980, as amended at 53 FR 3674, Feb. 8, 1988; 56 
FR 10063, Mar. 8, 1991]

[[Page 120]]



Sec. 723.19  Request for hearing.

    (a) The person charged with the violation may contest the proposed 
penalty or the fact of the violation by submitting a petition and an 
amount equal to the proposed penalty or, if a conference has been held, 
the reassessed or affirmed penalty to the Office of Hearings and Appeals 
(to be held in escrow as provided in paragraph (b) of this section) 
within 30 days from receipt of the proposed assessment or reassessment 
or 30 days from the date of service of the conference officer's action, 
whichever is later. The fact of the violation may not be contested, if 
it has been decided in a review proceeding commenced under section 525 
of the Act and 43 CFR part 4.
    (b) The Office of Hearings and Appeals shall transfer all funds 
submitted under paragraph (a) of this section to the Office, which shall 
hold them in escrow pending completion of the administrative and 
judicial review process, at which time it shall disburse them as 
provided in 30 CFR 723.20.

[45 FR 58783, Sept. 4, 1980, as amended at 56 FR 10063, Mar. 8, 1991]



Sec. 723.20  Final assessment and payment of penalty.

    (a) If the person to whom a notice of violation or cessation order 
is issued fails to request a hearing as provided in 30 CFR 723.19, the 
proposed assessment shall become a final order of the Secretary and the 
penalty assessed shall become due and payable upon expiration of the 
time allowed to request a hearing.
    (b) If any party requests judicial review of a final order of the 
Secretary, the proposed penalty shall continue to be held in escrow 
until completion of the review. Otherwise, subject to paragraph (c) of 
this section, the escrowed funds shall be transferred to the Office in 
payment of the penalty, and the escrow shall end.
    (c) If the final decision in the administrative and judicial review 
results in an order or eliminating the proposed penalty assessed under 
this part, the Office shall within 30 days of receipt of the order 
refund to the person assessed all or part of the escrowed account, with 
interest from the date of payment into escrow to the date of the refund 
at the rate of 6 percent or at the prevailing Department of the Treasury 
rate, whichever is greater.
    (d) If the review results in an order increasing the penalty, the 
person to whom the notice or order was issued shall pay the difference 
to the Office within 15 days after the order is mailed to such person.



PART 724_INDIVIDUAL CIVIL PENALTIES--Table of Contents



Sec.
724.1 Scope.
724.12 When an individual civil penalty may be assessed.
724.14 Amount of individual civil penalty.
724.17 Procedure for assessment of individual civil penalty.
724.18 Payment of penalty.

    Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C. 
3701.

    Source: 53 FR 3674, Feb. 8, 1988, unless otherwise noted.



Sec. 724.1  Scope.

    This part covers the assessment of individual civil penalties under 
section 518(f) of the Act.



Sec. 724.12  When an individual civil penalty may be assessed.

    (a) Except as provided in paragraph (b) of this section, the Office 
may assess an individual civil penalty against any corporate director, 
officer or agent of a corporate permittee who knowingly and willfully 
authorized, ordered or carried out a violation, failure or refusal.
    (b) The Office shall not assess an individual civil penalty in 
situations resulting from a permit violation by a corporate permittee 
until a cessation order has been issued by the Office to the corporate 
permittee for the violation, and the cessation order has remained 
unabated for 30 days.



Sec. 724.14  Amount of individual civil penalty.

    (a) In determining the amount of an individual civil penalty 
assessed under Sec. 724.12, the Office shall consider the criteria 
specified in Sec. 518(a) of the Act, including:

[[Page 121]]

    (1) The individual's history of authorizing, ordering or carrying 
out previous violations, failures or refusals at the particular surface 
coal mining operation;
    (2) The seriousness of the violation, failure or refusal (as 
indicated by the extent of damage and/or the cost of reclamation), 
including any irreparable harm to the environment and any hazard to the 
health or safety of the public; and
    (3) The demonstrated good faith of the individual charged in 
attempting to achieve rapid compliance after notice of the violation, 
failure or refusal.
    (b) The penalty shall not exceed $7,500 for each violation. Each day 
of a continuing violation may be deemed a separate violation and the 
Office may assess a separate individual civil penalty for each day the 
violation, failure or refusal continues, from the date of service of the 
underlying notice of violation, cessation order or other order 
incorporated in a final decision issued by the Secretary, until 
abatement or compliance is achieved.

[53 FR 3674, Feb. 8, 1988, as amended at 62 FR 63276, Nov. 28, 1997; 70 
FR 70701, Nov. 22, 2005; 74 FR 34493, July 15, 2009]



Sec. 724.17  Procedure for assessment of individual civil penalty.

    (a) Notice. The Office shall serve on each individual to be assessed 
an individual civil penalty a notice of proposed individual civil 
penalty assessment, including a narrative explanation of the reasons for 
the penalty, the amount to be assessed, and a copy of any underlying 
notice of violation and cessation order.
    (b) Final order and opportunity for review. The notice of proposed 
individual civil penalty assessment shall become a final order of the 
Secretary 30 days after service upon the individual unless:
    (1) The individual files within 30 days of service of the notice of 
proposed individual civil penalty assessment a petition for review with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Phone: 703-235-3800), in accordance with 43 CFR 4.1300 et seq.; or
    (2) The Office and the individual or responsible corporate permittee 
agree within 30 days of service of the notice of proposed individual 
civil penalty assessment to a schedule or plan for the abatement or 
correction of the violation, failure or refusal.
    (c) Service. For purposes of this section, service shall be 
performed on the individual to be assessed an individual civil penalty, 
by certified mail, or by any alternative means consistent with the rules 
governing service of a summons and complaint under rule 4 of the Federal 
Rules of Civil Procedure. Service shall be complete upon tender of the 
notice of proposed assessment and included information or of the 
certified mail and shall not be deemed incomplete because of refusal to 
accept.

[53 FR 3674, Feb. 8, 1988, as amended at 56 FR 28445, June 20, 1991; 67 
FR 5204, Feb. 5, 2002]



Sec. 724.18  Payment of penalty.

    (a) No abatement or appeal. If a notice of proposed individual civil 
penalty assessment becomes a final order in the absence of a petition 
for review or abatement agreement, the penalty shall be due upon 
issuance of the final order.
    (b) Appeal. If an individual named in a notice of proposed 
individual civil penalty assessment files a petition for review in 
accordance with 43 CFR 4.1300 et seq., the penalty shall be due upon 
issuance of a final administrative order affirming, increasing or 
decreasing the proposed penalty.
    (c) Abatement agreement. Where the Office and the corporate 
permittee or individual have agreed in writing on a plan for the 
abatement of or compliance with the unabated order, an individual named 
in a notice of proposed individual civil penalty assessment may postpone 
payment until receiving either a final order from the Office stating 
that the penalty is due on the date of such final order, or written 
notice that abatement or compliance is satisfactory and the penalty has 
been withdrawn.
    (d) Delinquent payment. Following the expiration of 30 days after 
the issuance of a final order assessing an individual civil penalty, any 
delinquent penalty shall be subject to interest at the rate established 
by the U.S. Department of

[[Page 122]]

the Treasury for late charges on late payments to the Federal 
Government. The Treasury current value of funds rate is published by the 
Fiscal Service in the notices section of the Federal Register and on 
Treasury's Web site. Interest on unpaid penalties will run from the date 
payment first was due until the date of payment. Failure to pay overdue 
penalties may result in one or more of the actions specified in Sec. 
870.23(a) through (f) of this chapter. Delinquent penalties are subject 
to late payment penalties specified in Sec. 870.21(c) of this chapter 
and processing and handling charges specified in Sec. 870.21(d) of this 
chapter.

[53 FR 3674, Feb. 8, 1988, as amended at 73 FR 67630, Nov. 14, 2008]



PART 725_REIMBURSEMENTS TO STATES--Table of Contents



Sec.
725.1 Scope.
725.2 Objectives.
725.3 Authority.
725.4 Responsibility.
725.5 Definitions.
725.10 Information collection.
725.11 Eligibility.
725.12 Coverage of grants.
725.13 Amount of grants.
725.14 Grant periods.
725.15 Grant application procedures.
725.16 Grant agreement.
725.17 Grant amendments.
725.18 Grant reduction and termination.
725.19 Audit.
725.20 Administrative procedures.
725.21 Allowable costs.
725.22 Financial management.
725.23 Reports.
725.24 Records.
725.25 Disclosure of information.

    Authority: Secs. 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 
U.S.C. 1201).

    Source: 42 FR 62704, Dec. 13, 1977, unless otherwise noted.



Sec. 725.1  Scope.

    This part sets forth policies and procedures for reimbursements to 
States for costs of enforcing the initial performance standards set 
forth in this chapter.



Sec. 725.2  Objectives.

    The objectives of assistance under this part are:
    (a) To assist the States in meeting the increased costs of 
administering the initial performance standards.
    (b) To encourage the States to build strong reclamation and 
enforcement programs.



Sec. 725.3  Authority.

    Section 502(e)(4) of the Surface Mining Control and Reclamation Act 
of 1977 (30 U.S.C. 1201) authorizes the Secretary to reimburse States 
for costs of enforcing the performance standards of the initial 
regulatory program.



Sec. 725.4  Responsibility.

    (a) The Director shall administer the grant program for 
reimbursement to States for costs of enforcing performance standards 
during the initial regulatory program.
    (b) The Director or his authorized designee shall receive, review 
and approve grant applications under this part.

[42 FR 62704, Dec. 13, 1977, as amended at 47 FR 38490, Aug. 31, 1982]



Sec. 725.5  Definitions.

    As used in this part, the following terms have the specified 
meanings:
    Agency means the State agency designated by the Governor to receive 
and administer grants under this part.
    Base program means the State program to regulate surface coal mining 
prior to August 3, 1977.



Sec. 725.10  Information collection.

    The information collection requirements contained in 30 CFR 725.15, 
725.23(a) and 725.24 have fewer than 10 respondents per year, they are 
exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.) and do not require clearance by OMB.

[47 FR 38490, Aug. 31, 1982]



Sec. 725.11  Eligibility.

    (a) Assumption of responsibility. To be eligible for a grant for 
reimbursements for the cost of enforcing performance standards during 
the initial regulatory program the State shall assume responsibility for 
enforcement of the initial regulatory program including the specific 
responsibilities identified

[[Page 123]]

under Sec. 710.4(b) and part 720 of this chapter.
    (b) Designation of State agency. In order to receive a grant for 
reimbursements for costs of enforcing performance standards during the 
initial regulatory program, the Governor of a State shall designate in 
writing one agency to submit grant applications, receive and administer 
grants under this part.
    (c) Periods covered by reimbursement grants. An agency may apply for 
a reimbursement grant for any period during the initial regulatory 
program and for a reasonable start-up period beginning no later than 
August 3, 1977.



Sec. 725.12  Coverage of grants.

    An agency may use grant money under this part to cover costs in 
excess of the base program for administering and enforcing the initial 
regulatory program. The Director or his authorized designee shall 
determine the base program from the State fiscal year budget in effect 
on August 3, 1977. Costs of the following items are eligible for 
reimbursement--
    (a) Incorporation of the initial performance standards of this 
chapter in new permits issued by the State.
    (b) Modification of existing permits to include the initial 
performance standards of this chapter.
    (c) Additional inspections required to enforce the initial 
performance standards of this chapter.
    (d) Inspections which are more detailed than inspections before the 
initial regulatory program.
    (e) Responses to complaints related to the initial performance 
standards of this chapter.
    (f) Enforcement actions required to secure compliance with the 
initial performance standards of this chapter.
    (g) Additional administrative activities and supporting costs 
related to hiring additional inspectors and other personnel, revising 
permits, conducting inspections, preparing, copying and submitting 
reports required by part 720, and submitting applications for 
reimbursement grants under this part.
    (h) Additional equipment required for inspection or support of 
inspections, as follows:
    (1) An agency may charge any required item of equipment to the grant 
on a use bases in accordance with the principles set forth in Federal 
Management Circular 74-4, ``Cost principles applicable to grants and 
contracts with State and local governments'' (34 CFR part 255).
    (2) An agency may purchase equipment, with grant funds where cost 
recovery through use charges is prohibited, made impractical or more 
costly than purchase by existing State laws or procedures.

[42 FR 62704, Dec. 13, 1977, as amended at 45 FR 34880, May 23, 1980]



Sec. 725.13  Amount of grants.

    The Office shall pay up to 100 percent of the costs to the agency in 
excess of the base program for administering and enforcing the 
performance standards during the initial regulatory program.



Sec. 725.14  Grant periods.

    The Director or his authorized designee shall normally approve a 
grant for a period of one year or less. OSM shall fund a program that 
extends over more than one year by consecutive annual grants or 
amendments to the existing grant.

[47 FR 38490, Aug. 31, 1982]



Sec. 725.15  Grant application procedures.

    (a) The agency may submit its application (three copies) for a grant 
to the Director or his authorized designee at least sixty days prior to 
the beginning of the intended grant period, or as soon thereafter as 
possible.
    (b) The agency shall use the application forms and procedures 
applicable to non-construction and/or construction programs specified by 
OSM in accordance with Office of Management and Budget Circular No. A-
102, ``Uniform administrative requirements for grants-in-aid to State 
and local governments'' (42 FR 45828). No preapplication is required. 
Each application must include the following:
    (1) Part I, Application Form coversheet, SF 424.
    (2) Part II, Project Approval Information.

[[Page 124]]

    (i) For non-construction grants use Form OSM-50A, Project Approval 
Information--Section A.
    (ii) For construction grants use Form OSM-50A, Project Approval 
Information--Section A and Form OSM-50B, Project Approval Information--
Section B.
    (3) Part III, Budget Information.
    (i) For non-construction grants use Form OSM-47, Budget Information 
Report, with a narrative explanation of computations.
    (ii) For construction grants use Form OSM-48, Budget Information--
Construction with a narrative explanation of computations.
    (4) Part IV, Program Narrative Statement, Form OSM-51, providing the 
narrative for the goals to be achieved for both construction and non-
construction grants.
    (i) Form OSM-51 is supplemented by completion of column 5A of Forms 
OSM-51A and OSM-51B which reports the quantitative program management 
information of the Interim Regulatory grants.
    (ii) Form OSM-51 is supplemented by completion of Column 5A of Form 
OSM-51C which reports the quantitative program management information of 
the Small Operator Program Administration and Operational grants.
    (5) Part V, The standard assurance for non-construction activities 
or construction activities as specified in Office of Management and 
Budget Circular No. A-102, Attachment M.
    (c) The agency shall include sufficient information to enable the 
Director or his authorized designee to determine the agency's base 
program and increases over the base program eligible for reimbursement 
grants. The agency shall include the following information, plus any 
other relevant data:
    (1) A summary of the State permit, inspection and enforcement 
program prior to the addition of the requirements of the Act of 1977, 
including--
    (i) Permit requirements and the system for issuing permits;
    (ii) Mining-and-reclamation plan requirements;
    (iii) Coverage and frequency of inspections;
    (iv) Actions required to enforce mining and reclamation 
requirements;
    (v) The number and nature of responses to complaints; and
    (vi) Other regulatory activities and related administrative 
functions affected by the performance standards of the initial 
regulatory program of this chapter.
    (2) A statement of the number of employees and annual budget 
required to carry out functions described in paragraph (c)(1) of this 
section.
    (3) A copy of all State constitutional, statutory and regulatory 
provisions applicable to the enforcement and administration of the 
initial regulatory program.
    (4) An opinion of the State's chief legal officer as to whether and 
to what extent the State is authorized to enforce and administer the 
initial regulatory program.
    (5) A statement of the additional work required to enforce the 
initial regulatory program for each of the agency activities described 
in paragraph (c)(1) of this section.
    (6) The additional staff and funds required for the increased 
workload described in paragraph (c)(5) of this section.
    (7) The number and types of major equipment (equipment with a unit 
acquisition cost of $500 or more and having a life of more than two 
years) which the agency plans to purchase with grant funds.
    (d) The Director or his authorized designee may waive the 
resubmission of information required by paragraphs (c) (1), (2), (3) and 
(4) of this section in applications for the following grants.
    (e) The Director or his authorized designee shall notify the agency 
within thirty days after the receipt of a complete application, or as 
soon thereafter as possible, whether it is or is not approved. If the 
application is not approved, the Director or his authorized designee 
shall set forth in writing the reasons it is not approved, and may 
propose modifications if appropriate. The agency may resubmit the 
application within thirty days. The Director or his authorized designee 
shall process

[[Page 125]]

the revised application as an original application.

[42 FR 62704, Dec. 13, 1977, as amended at 47 FR 38490, Aug. 31, 1982]



Sec. 725.16  Grant agreement.

    (a) If a Director or his authorized designee approves an agency's 
grant application, the Director or his authorized designee shall prepare 
a grant agreement which includes--
    (1) The approved scope of the program to be covered by the grant, 
including functions to be accomplished by other agencies.
    (2) The base program budget and estimated costs in excess of the 
base program.
    (3) The amount of the grant.
    (4) Commencement and completion dates for the segment of the program 
covered by this grant and for major phases of the program to be 
completed during the grant period.
    (5) Permissible transfers of funds to other State agencies.
    (b) The Director or his authorized designee shall limit grants under 
this part to the additional costs to an agency for administering and 
enforcing the initial regulatory program.
    (c) The Director or his authorized designee may permit the agency to 
assign functions and funds to other State agencies. The Director or his 
authorized designee shall require the grantee agency to retain 
responsibility for overall administration of the grant, including use of 
funds, accomplishment of functions and reporting.
    (d) Except as may be provided by the grant agreement, costs may not 
be incurred prior to the execution of the agreement.
    (e) The Director or his authorized designee shall transmit four 
copies of the grant agreement, by certified mail, return receipt 
requested, to the agency for signature. The agency shall execute the 
grant agreement and return all copies within 3 calendar weeks after 
receipt, or within an extension of such time that may be granted by the 
Director or his authorized designee.
    (f) The Director or his authorized designee shall sign the grant 
agreement upon its return from the agency and return one copy to the 
agency. The grant is effective and constitutes an obligation of Federal 
funds in the amount and for the purposes stated in the grant agreement 
at the time the Director or his authorized designee signs the agreement.
    (g) Neither the approval of a program nor the award of any grant 
will commit or obligate the United States to award any continuation 
grant or to enter into any grant amendment, including grant increases to 
cover cost overruns.



Sec. 725.17  Grant amendments.

    (a) A grant amendment is a written alteration to the grant amount, 
grant terms or conditions, budget or period, or other administrative, 
technical, or financial agreement whether accomplished on the initiative 
of the agency or the Director or his authorized designee or by mutual 
action of the agency and the Director or his authorized designee.
    (b) The agency shall promptly notify the Director or his authorized 
designee in writing of events or proposed changes which require a grant 
amendment, such as:
    (1) Rebudgeting;
    (2) Changes which may affect the approved scope or objective of a 
program; or
    (3) Changes which may increase or substantially decrease the total 
cost of a program.
    (c) The Director or his authorized designee shall approve or 
disapprove each proposed amendment within 30 days of receipt, or as soon 
thereafter as possible, and shall notify the agency in writing of the 
approval or disapproval of the amendment.
    (d) The date the Director or his authorized designee signs the grant 
amendment establishes the effective date of the action. If no time 
period is specified in the grant amendment then the amendment applies to 
the entire grant period.

[42 FR 62704, Dec. 13, 1977, as amended at 47 FR 38490, Aug. 31, 1982]



Sec. 725.18  Grant reduction and termination.

    (a) Conditions for reduction or termination. (1) If an agency fails 
to carry out its responsibilities pursuant to Sec. 710.4(b) and part 
720 of this chapter

[[Page 126]]

the Director or his authorized designee shall reduce or terminate the 
grant.
    (2) If an agency violates the terms of a grant agreement, the 
Director or his authorized designee may reduce or terminate the grant.
    (3) If an agency fails to enforce the initial performance standards 
of this chapter the Director or his authorized designee may reduce or 
terminate the grant.
    (4) If an agency is not in compliance with the following 
nondiscrimination provisions, the Director or his authorized designee 
shall terminate the grant--
    (i) Title VI of the Civil Rights Act of 1964 (78 Stat. 252), 
Nondiscrimination in Federally Assisted Programs, which provides that no 
person in the United States shall on the grounds of race, color or 
national origin be excluded from participation in, be denied the 
benefits of or be subjected to discrimination under any program or 
activity receiving Federal financial assistance, and the implementing 
regulations at 43 CFR 17.
    (ii) Executive Order 11246, as amended by Executive Order 11375, 
Equal Employment Opportunity, requiring that employees or applicants for 
employment not be discriminated against because of race, creed, color, 
sex or national orgin, and the implementing regulations at 41 CFR 60.
    (iii) Section 504 of the Rehabilitation Act of 1973, as amended by 
Executive Order 11914, Nondiscrimination with Respect to the Handicapped 
in Federally Assisted Programs.
    (5) If an agency fails to enforce the financial interest provisions 
of part 705 of this chapter the Director shall terminate the grant.
    (6) If an agency fails to submit reports required by this part or 
parts 705 and 720 of this chapter the Director shall reduce or terminate 
the grant.
    (b) Grant reduction and termination procedures. (1) The Director or 
his authorized designee shall give at least 10 days written notice to 
the agency by certified mail, return receipt requested, of intent to 
reduce or terminate a grant. The Director or his authorized designee 
shall include in the notice the reasons for the proposed action and the 
proposed effective date of the action.
    (2) The Director or his authorized designee shall afford the agency 
opportunity for consultation and remedial action prior to reducing or 
terminating a grant.
    (3) The Director or his authorized designee shall notify the agency 
of the termination or reduction of the grant in writing by certified 
mail, return reciept requested.
    (4) Upon termination the agency shall refund or credit to the United 
States that portion of the grant money paid or owed to the agency and 
allocated to the terminated portion of the grant. However any portion of 
the grant that is required to meet commitments made prior to the 
effective date of termination shall be retained by the agency.
    (5) Upon termination, the agency shall reduce the amount of 
outstanding commitments insofar as possible and report to the Director 
or his authorized designee the uncommitted balance of funds awarded 
under the grant.
    (6) Upon notification of intent to terminate, the agency shall not 
make any new commitments without the approval of the Director or his 
authorized designee.
    (7) The Director or his authorized designee may allow termination 
costs as determined by applicable Federal cost principles listed in 
Federal management Circular 74-4.
    (c) Appeals. (1) An Agency may appeal the Director or his authorized 
designee's decision to reduce or terminate a grant to the Director 
within 30 days of the Director or his authorized designee's decision.
    (2) An Agency shall include in an appeal:
    (i) The decision being appealed, and
    (ii) The facts which the Agency believes justify a reversal or 
modification of the decision.
    (3) The Director shall act on appeals within 30 days of their 
receipt, or as soon thereafter as possible.



Sec. 725.19  Audit.

    The agency shall arrange for an independent audit no less frequently 
than once every two years, pursuant to the requirements of Office of 
Management

[[Page 127]]

and Budget Circular No. A-102, Attachment P. The audits will be 
performed in accordance with the ``Standards for Audit of Governmental 
Organizations, Programs, Activities, and Functions'' and the 
``Guidelines for Financial and Compliance Audits of Federally Assisted 
Programs'' published by the Comptroller General of the United States and 
guidance provided by the cognizant Federal audit agency.

[48 FR 38490, Aug. 31, 1983]



Sec. 725.20  Administrative procedures.

    The Agency shall follow administrative procedures governing 
accounting, payment property, and related requirements contained in 
Office of Management and Budget Circular No. A-102.



Sec. 725.21  Allowable costs.

    (a) The Director or his authorized designee shall determine costs 
which may be reimbursed according to Office of Management and Budget 
Circular No. A-87.
    (b) Costs must be in conformity with any limitations conditions or 
exclusions set forth in the grant agreement or this part.
    (c) Costs must be allocated to the grant to the extent of benefit 
properly attributable to the period covered by the grant.
    (d) Costs must not be allocated to or included as a cost of any 
other federally assisted program.

[42 FR 62704, Dec. 13, 1977, as amended at 47 FR 38490, Aug. 31, 1982]



Sec. 725.22  Financial management.

    (a) The agency shall account for grant funds in accordance with the 
requirements of Office of Management and Budget Circular A-102. An 
agency shall use generally accepted accounting principles and practices, 
consistently applied. Accounting for grant funds must be accurate and 
current.
    (b) The agency shall adequately safeguard all funds, property, and 
other assets and shall assure that they are used solely for authorized 
purposes.
    (c) The agency shall provide a comparison of actual amounts spent 
with budgeted amounts for each grant.
    (d) When advances are made by a letter-of-credit method, the agency 
shall make drawdowns from the U.S. Treasury through its commercial bank 
as closely as possible to the time of making the disbursements.
    (e) The agency shall support accounting records by source 
documentation.
    (f) The agency shall design a systematic method to assure timely and 
appropriate resolution of audit findings and recommendations.



Sec. 725.23  Reports.

    (a) The agency shall, for each grant made under this part, submit 
semiannually to the Director or his authorized designee a Financial 
Status Report, SF 269, for non-construction grant activities in 
accordance with Office of Management and Budget Circular No. A-102, 
Attachment H and OSM requirements. This report shall be accompanied by a 
Performance Report, Form OSM-51, comparing actual accomplishments to the 
goals established for the period, prepared according to Attachment I of 
OMB Circular No. A-102 and OSM requirements. The agency shall also 
submit semiannually a separate Outlay Report and Request for 
Reimbursement for Construction Programs, SF 271, and accompanying 
narrative performance report comparing actual accomplishments with 
planned goals on grant funded construction activities.
    (b) The Director or his authorized designee shall require through 
the grant agreement that semiannual reports also describe the 
relationship of financial information to performance and productivity 
data, including unit cost information. This quantitative information 
will be reported on Forms OSM-51A and OSM-51B or OSM-51C, Quantitative 
Program Management Information, as applicable.
    (c) The Director or his authorized designee shall require that when 
a grant is closed out in accordance with Attachment L to Office of 
Management and Budget Circular No. A-102 the following actions are 
taken:
    (1) The grantee shall account for any property acquired with grant 
funds or received from the Government in accordance with the provisions 
of Attachment N to Office of Management and Budget Circular No. A-102. 
This may be accomplished by the submission of the

[[Page 128]]

Report of Government Property, Form OSM-60.
    (2) The grantee shall submit a final financial report and thus 
release OSM from obligations under each grant or cooperative agreement 
that is being closed out.

[47 FR 38491, Aug. 31, 1982]



Sec. 725.24  Records.

    (a) The agency shall maintain complete records in accordance with 
Office of Management and Budget Circular No. A-102. This includes books, 
records, documents, maps, and other evidence and accounting procedures 
and practices, sufficient to reflect properly--
    (1) The amount, receipt, and disposition by the agency of all 
assistance received for the program.
    (2) The total costs of the program, including all direct and 
indirect costs of whatever nature incurred for the performance of the 
program for which the grant has been awarded.
    (b) Subgrantees and contractors, including contractors for 
professional services, shall maintain books, documents, papers, maps, 
and records which are pertinent to a specific grant award.
    (c) The agency's records and the records of its subgrantees and 
contractors, including professional services contracts, shall be subject 
at all reasonable times to inspection, reproduction, copying, and audit 
by the Office, the Department of the Interior, the Comptroller General 
of the United States, the Department of Labor, or any authorized 
representative.
    (d) For completed or terminated grants, the agency, subgrantees and 
contractors shall preserve and make their records available to the 
Office, the Department of the Interior, the Comptroller General of the 
United States, Department of Labor, or any authorized representative 
pursuant to OMB Circular A-102.



Sec. 725.25  Disclosure of information.

    All grant applications received by the Director or his authorized 
designee constitute agency records. As such, their release may be 
requested by any member of the public under the Freedom of Information 
Act (5 U.S.C. 552), and shall be disclosed unless exempt from disclosure 
under 5 U.S.C. 552(b).

[[Page 129]]



   SUBCHAPTER C_PERMANENT REGULATORY PROGRAMS FOR NON-FEDERAL AND NON-

                              INDIAN LANDS



PART 730_GENERAL REQUIREMENTS--Table of Contents



Sec.
730.1 Scope.
730.5 Definitions.
730.11 Inconsistent and more stringent State laws and regulations.
730.12 Requirements for regulatory programs in States.

    Authority: Secs. 501(b), 503, 504, 505 and 521 of Pub. L. 95-87 (30 
U.S.C. 1251(b), 1253, 1254, 1255 and 1271).



Sec. 730.1  Scope.

    This subchapter sets forth standards and procedures for the 
submission, review, and approval or disapproval of State programs, for 
coal exploration and surface coal mining and reclamation operations on 
non-Indian and non-Federal lands. In addition it sets forth criteria and 
procedures for amending approved programs, substituting Federal 
enforcement for State enforcement of State programs, and withdrawing 
approval of those programs not adequately implemented or maintained. 
Requirements are also included for State program grants and for the 
adoption of a Federal program in a State which does not have a State 
program or which has failed to implement, enforce or maintain an 
approved State program consistent with this subchapter.

[44 FR 15323, Mar. 13, 1979]



Sec. 730.5  Definitions.

    As used in this subchapter unless otherwise indicated Consistent 
with and in accordance with mean:
    (a) With regard to the Act, the State laws and regulations are no 
less stringent than, meet the minimum requirements of and include all 
applicable provisions of the Act.
    (b) With regard to the Secretary's regulations, the State laws and 
regulations are no less effective than the Secretary's regulations in 
meeting the requirements of the Act.

[44 FR 15323, Mar. 13, 1979, as amended at 46 FR 53384, Oct. 28, 1981]



Sec. 730.11  Inconsistent and more stringent State laws and regulations.

    (a) No State law or regulation shall be superseded by any provision 
of the Act or the regulations of this chapter, except to the extent that 
the State law or regulation is inconsistent with, or precludes 
implementation of, requirements of the Act or this chapter. The Director 
shall publish a notice of proposed action in the Federal Register 
setting forth the text or a summary of any State law or regulation 
initially determined by him to be inconsistent with the Act or this 
chapter. The notice shall provide 30 days for public comment. Following 
the close of the public comment period, the Director shall make a final 
determination which shall be published in the Federal Register.
    (b) Any State law or regulation which provides for more stringent 
land use and environmental controls and regulations of coal exploration 
and surface coal mining and reclamation operations than do the 
provisions of the Act and this chapter, or which provides for the 
control and regulation of coal exploration and surface coal mining and 
reclamation operations for which no provision is contained in the Act or 
this chapter, shall not be construed to be inconsistent with the Act or 
this chapter.

[44 FR 15323, Mar. 13, 1979, as amended at 47 FR 26364, June 17, 1982]



Sec. 730.12  Requirements for regulatory programs in States.

    (a) Not later than January 3, 1981, for each State in which coal 
exploration and surface coal mining and reclamation operations are or 
may be conducted on non-Federal and non-Indian land, either a State 
program or a Federal program adopted under this subchapter shall be in 
effect. However, the inability of a State to take any action the purpose 
of which is to prepare, submit or enforce a State program, or any part 
thereof, because the action is enjoined by the issuance of an injunction 
by any court of competent jurisdiction

[[Page 130]]

shall not result in the imposition of a Federal program for regulation 
of surface coal mining and reclamation operations. Regulation of surface 
coal mining and reclamation operations covered or to be covered by the 
State program subject to an injunction shall be conducted by the State 
pursuant to section 502 of the Act until such time as the injunction 
terminates or for one year from issuance of the injunction, whichever is 
shorter, at which time the requirements of sections 503 and 504 shall 
again be fully applicable. States in which no coal exploration or 
surface coal mining and reclamation operations are in existence or 
planned on January 3, 1981, on non-Federal and non-Indian lands but in 
which such exploration or operations may occur at some later date, shall 
have a State or Federal program in effect before commencement of any 
such exploration or operations.
    (b) The State shall notify the Director of the issuance of any 
injunction which prevents or prohibits the State from preparing, 
submitting or enforcing a State program or portion thereof.

[44 FR 15323, Mar. 13, 1979, as amended at 45 FR 33927, May 20, 1980]



PART 731_SUBMISSION OF STATE PROGRAMS--Table of Contents



Sec.
731.1 Scope.
731.12 Submission of State programs.
731.14 Content requirements for program submissions.

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.



Sec. 731.1  Scope.

    This part establishes standards and procedures for the preparation 
and submission of State programs.

[44 FR 15324, Mar. 13, 1979]



Sec. 731.12  Submission of State programs.

    Each State that wishes to regulate coal exploration and surface coal 
mining and reclamation operations on non-Federal and non-Indian lands 
within its boundaries shall submit three copies of a proposed program to 
the Director. A State may submit a proposed program at any time. The 
State shall retain sufficient copies of the program for public 
inspection under Sec. 732.11(a).

[47 FR 26364, June 17, 1982]



Sec. 731.14  Content requirements for program submissions.

    The program shall demonstrate that the State has the capability of 
carrying out the provisions of the Act and this chapter and achieving 
their purposes by providing a complete description of the system for 
implementing, administering and enforcing a State program including, at 
a minimum--
    (a) A copy of the State laws in effect at the time of submission of 
the program which regulate coal exploration and surface coal mining and 
reclamation operations, a copy of any State regulations promulgated to 
implement and enforce those State laws and any amendments to State laws 
and regulations which are in the process of enactment and have been 
determined by the State to be essential to allow for program approval;
    (b) Copies of other State laws and regulations directly affecting 
the regulation of coal exploration and surface coal mining and 
reclamation operations, and amendments to such other laws or regulations 
which affect the regulation of coal exploration and surface coal mining 
and reclamation operations which are being considered or are pending;
    (c)(1) A legal opinion from the Attorney General of the State or 
chief legal officer of the State regulatory authority stating that the 
State has the legal authority under existing laws and regulations, or 
will have authority under amendments to laws and regulations which are 
in the process of enactment, to implement, administer and enforce the 
program and to regulate coal exploration and surface coal mining and 
reclamation operations in accordance with the Act and consistent with 
this chapter.
    (2) A section-by-section comparison of the State's law and 
regulations and amendments which are in the process of enactment with 
the Act and this chapter, explaining any differences and their legal 
effect;
    (d) A copy of the legal document which designates one State agency 
as

[[Page 131]]

the regulatory authority and authorizes that agency to implement, 
administer and enforce a State program and to submit grant applications 
and receive and administer grants under this subchapter;
    (e)(1) A description, including appropriate charts, of the existing 
and proposed structural organization of the agency designated as the 
regulatory authority and of other agencies or applicable divisions or 
departments of those agencies which will have duties in the State 
program. The description must indicate the coordination system between 
these agencies and lines of authority and the staffing functions within 
each agency and between agencies.
    (2) A summary table of the existing and proposed State program 
staff, showing job functions, title and required job experience and 
training, and a description of how the staffing proposed for the State 
program will be adequate to carry out the functions, including 
permitting, inspection and legal actions for the projected workload to 
ensure that coal exploration and surface coal mining and reclamation 
operations will be regulated in accordance with the requirements of the 
Act and this chapter;
    (f) A copy of supporting agreements between agencies which will have 
duties in the State program;
    (g) Narrative descriptions, flow charts or other appropriate 
documents of the proposed systems for--
    (1) Receiving notices of intention to explore and applications for 
new, revised or renewed approvals for coal exploration and permits for 
surface coal mining and reclamation operations, reviewing those 
applications, approving or disapproving requests for exploration 
approvals, permits, permit revisions and renewals;
    (2) Assessing fees for permit applications;
    (3) Implementing, administering and enforcing a system of 
performance bonds and liability insurance or other equivalent 
guarantees;
    (4) Inspecting and monitoring coal exploration and surface coal 
mining and reclamation operations including provisions for public 
participation in the process;
    (5) Enforcing the administrative, civil and criminal sanctions of 
State laws and regulations for violation of any requirement of those 
laws relating to the regulation of coal exploration and surface coal 
mining and reclamation operations;
    (6) Administering and enforcing the permanent program performance 
standards;
    (7) Assessing and collecting civil penalties;
    (8) Issuing public notices and holding public hearings;
    (9) Coordinating issuance of permits required under the Act and this 
chapter with other State, Federal and local agencies;
    (10) Consulting with State and Federal agencies having 
responsibility for the protection or management of fish and wildlife and 
related environmental values.
    (11) Designating lands unsuitable for surface coal mining 
operations, including provisions for terminating those designations and 
for public participation in the designation process;
    (12) Monitoring, reviewing and enforcing restrictions against direct 
and indirect financial interests of State employees in surface coal 
mining and reclamation operations;
    (13) Training, examining and certifying blasters, except that no 
State program is required to implement this provision until six months 
after the Federal regulations for the provision have been promulgated;
    (14) Providing for public participation in the development, revision 
and enforcement of State regulations, the State program, and permits 
under the State program;
    (15) Providing administrative and judicial review of actions 
provided for in the State program including inspection and enforcement 
actions; and
    (16) Providing the determination of probable hydrologic consequences 
and the statement of the results of test borings or core samples 
required by section 507(c) of the Act.
    (17) Consulting with State, Federal, and local agencies having 
responsibility for historic, cultural, and archeological resources, and 
for making decisions regarding such resources.

[[Page 132]]

    (h) Statistical information describing coal exploration and surface 
coal mining and reclamation operations in the State, adequate to 
demonstrate that the provisions of the State program and the resources 
available to it are sufficient when compared to the current and 
projected coal mining activities in the State;
    (i) A description of the actual capital and operating budget, 
including source of funds, used or proposed to be used to administer the 
State program for the prior and current fiscal years, and the projected 
annual budget for each of the next two fiscal years, assuming 
supplemental funding pursuant to an approved State program and grants 
under 30 CFR part 735; and a description of the existing and proposed 
physical resources for use in the program.

[44 FR 15324, Mar. 13, 1979, as amended at 47 FR 26364, June 17, 1982; 
48 FR 2272, Jan. 18, 1983; 52 FR 4261, Feb. 10, 1987]



PART 732_PROCEDURES AND CRITERIA FOR APPROVAL OR DISAPPROVAL OF STATE PROGRAM 

SUBMISSIONS--Table of Contents



Sec.
732.1 Scope.
732.10 Information collection.
732.11 Review by the Director.
732.13 Decision by the Secretary.
732.14 Resubmission of State programs.
732.15 Criteria for approval or disapproval of State programs.
732.16 Terms and conditions for State programs.
732.17 State program amendments.

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.



Sec. 732.1  Scope.

    This part sets forth criteria and procedures for decisions to 
approve or disapprove submissions of State programs and program 
amendments, including requirements for public participation in the 
process of approval or disapproval.

[44 FR 15326, Mar. 13, 1979]



Sec. 732.10  Information collection.

    The information collection requirements contained in 30 CFR 
732.16(a) and 732.17(b) have been approved by the Office of Management 
and Budget under 44 U.S.C. 3507 and assigned clearance number 1029-0024. 
The information is needed to afford a State the opportunity to modify or 
amend its State program and will be used by OSM to determine whether the 
amendment meets the provisions of the Act.

[47 FR 26365, June 17, 1982]



Sec. 732.11  Review by the Director.

    (a) Immediately upon receipt of a proposed State program, the 
Director shall publish in the Federal Register and in a newspaper of 
general circulation in the State a notice meeting the following 
requirements:
    (1) The notice shall include the date of the submission of the 
program and a summary of the program's contents. It shall also indicate 
that the full text of the program submission is available for review 
during regular business hours at the OSM State Office and at the central 
office and each field office of the State agency responsible for the 
submission.
    (2) The notice shall afford interested persons an opportunity to 
submit written comments. The comment period shall end on a date 
following the public hearing scheduled to be held under paragraph (b) of 
this section and that date shall be specified in the notice.
    (3) The notice shall identify the time and location within the State 
at which the Office will hold the public hearing under paragraph (b) of 
this section.
    (b) A public hearing shall be held by the Director no sooner than 40 
days following the publication of the notice required by paragraph (a) 
of this section. The hearing shall be informal and follow legislative 
procedures.
    (1) The format and the rules of procedure for each hearing shall be 
determined by the Director and published in the Federal Register notice 
required by paragraph (a).
    (2) When the program is submitted, State laws and regulations must 
be submitted in their final form or in the form in which they are 
expected to become final. Should revisions to any of the laws or 
regulations be necessary during the public comment period or before the 
Secretary's decision, OSM will give notice and provide an opportunity 
for review and comment. State

[[Page 133]]

laws and regulations must be enacted by the date of program approval.
    (c) Copies of written comments shall be available for public 
inspection and copying at the OSM State Office and the offices of the 
State agency responsible for submitting the program.
    (d) The Director shall consider all relevant information, including 
information obtained from public hearings and comments, and shall 
recommend to the Secretary that the program be approved or disapproved, 
in whole or in part. The recommended decision shall specify the reasons 
for the recommendation.

[47 FR 26365, June 17, 1982]



Sec. 732.13  Decision by the Secretary.

    (a) After consideration of the information accompanying the 
Director's recommendation and the Director's recommendation and 
findings, the Secretary shall issue to the State in writing, either a 
decision approving or an initial decision disapproving the State 
program, in whole or in part.
    (b) A program shall not be approved until the Secretary has--
    (1) Solicited and publicly disclosed the views of the Administrator 
of the Environmental Protection Agency, the Secretary of Agriculture, 
and the heads of other Federal agencies concerned with or having special 
expertise relevant to the program as proposed; and
    (2) Obtained written concurrence of the Administrator of the 
Environmental Protection Agency with respect to those aspects of a State 
program which relate to air or water quality standards promulgated under 
the authority of the Federal Water Pollution Control Act, as amended (33 
U.S.C. 1251 et seq.), or the Clean Air Act, as amended (42 U.S.C. 7401 
et seq.).
    (c) The Secretary's decision shall include the findings upon which 
it is based and shall be mailed to the State.
    (d) The Secretary shall issue his decision within 6 months of the 
Director's receipt of a program submission.
    (e) All decisions approving or disapproving a program, in whole or 
in part, shall be published in the Federal Register, indicating, in the 
event of disapproval, that the State has 60 days to submit a revised 
program for consideration.
    (f) If the Secretary disapproves a program, in whole or in part, the 
State shall have 60 days from the date of publication of the Federal 
Register notice to submit a revised program to the Director for 
reconsideration. The procedures of Sec. 732.11 will then apply to the 
revised State program, except that the time allowed between publication 
of notice and the public hearing for public review and comment may be 
shortened to not less than 15 days.
    (g) The Secretary shall either approve or disapprove the revised 
program within 60 days from the date of submission of the revised 
program and publish that decision and reasons for the decision in the 
Federal Register. A decision disapproving the revised program 
constitutes the final decision by the Department disapproving that 
program in its entirety.
    (h) If a revised State program is not submitted by a State within 60 
days of an initial disapproval under paragraph (a) of this section, the 
Secretary shall disapprove the initial program submission in its 
entirety. This decision shall constitute the final decision by the 
Secretary. This decision and the basis for it shall be published in the 
Federal Register.
    (i) A decision by the Secretary approving a program submission 
establishes a State program for the State which submitted it and 
constitutes the final decision by the Department. The State program 
becomes effective on the date of publication of the decision in the 
Federal Register unless otherwise specified by the Secretary. The 
Secretary shall not give his approval unless the program submission can 
be approved in whole, except as provided in paragraph (j) of this 
section.
    (j) The Secretary may conditionally approve a State program where 
the program is found to have minor deficiencies, provided:
    (1) The deficiencies are of such a size and nature so as to render 
no part of a proposed State program incomplete;
    (2) The State has initiated and is actively proceeding with steps to 
correct the deficiencies;
    (3) The State agrees in writing to correct such deficiencies within 
a time established by the Secretary and stated in the conditional 
approval; and

[[Page 134]]

    (4) If the deficiencies have not been corrected by the date set 
forth in the Secretary's decision under paragraph (j)(3) of this 
section, the Director shall notify the Secretary that the deficiencies 
have not been corrected and shall within 30 days--
    (i) Withdraw approval of the State program in whole or in part, and 
specify the extent to which approval of the State program is being 
withdrawn;
    (ii) Substitute direct Federal enforcement of those portions of the 
permanent regulatory program that the State has failed to implement;
    (iii) Initiate procedures in accordance with parts 733 and 736 of 
this chapter to withdraw State program approval and implement a Federal 
program for the State, including specifying necessary remedial actions 
to correct continued deficiencies; or
    (iv) Take any combination of actions under paragraphs (j)(4) and (i) 
through (iii) of this section.

[44 FR 15326, Mar. 13, 1979, as amended at 47 FR 26365 and 26367, June 
17, 1982]



Sec. 732.14  Resubmission of State programs.

    If, by a final decision, the program is disapproved, the State may 
submit another proposed State program to the Director at any time. 
Resubmitted State programs must meet the requirements of Sec. 731.14 
and will be acted upon pursuant to Sec. Sec. 732.11-732.16.

[47 FR 26366, June 17, 1982]



Sec. 732.15  Criteria for approval or disapproval of State programs.

    The Secretary shall not approve a State program unless, on the basis 
of information contained in the program submission, comments, testimony 
and written presentations at the public hearings, and other relevant 
information, the Secretary finds that--
    (a) The program provides for the State to carry out the provisions 
and meet the purposes of the Act and this Chapter within the State and 
that the State's laws and regulations are in accordance with the 
provisions of the Act and consistent with the requirements of the 
Chapter.
    (b) The State regulatory authority has the authority under State 
laws and regulations pertaining to coal exploration and surface coal 
mining and reclamation operations and the State program includes 
provisions to--
    (1) Implement, administer and enforce all applicable requirements 
consistent with subchapter K of this chapter;
    (2) Implement, administer and enforce a permit system consistent 
with the regulations of subchapter G of this chapter and prohibit 
surface coal mining and reclamation operations without a permit issued 
by the regulatory authority;
    (3) Regulate coal exploration consistent with 30 CFR parts 772 and 
815 and prohibit coal exploration that does not comply with 30 CFR parts 
772 and 815;
    (4) Require that persons extracting coal incidental to government 
financed construction maintain information on site consistent with 30 
CFR 707;
    (5) Enter, inspect and monitor all coal exploration and surface coal 
mining and reclamation operations on non-Indian and non-Federal land 
within the State consistent with the requirements of section 517 of the 
Act and subchapter L of this chapter;
    (6) Implement, administer and enforce a system of performance bonds 
and liability insurance, or other equivalent guarantees, consistent with 
the requirements of subchapter J of this chapter;
    (7) Provide for civil and criminal sanctions for violations of the 
State law, regulations and conditions of permits and exploration 
approvals including civil and criminal penalties in accordance with 
section 518 of the Act and consistent with 30 CFR 845, including the 
same or similar procedural requirements;
    (8) Issue, modify, terminate and enforce notices of violation, 
cessation orders and show cause orders in accordance with section 521 of 
the Act and consistent with the requirements of subchapter L of this 
chapter including the same or similar procedural requirements;
    (9) Designate areas as unsuitable for surface coal mining consistent 
with subchapter F of this chapter;

[[Page 135]]

    (10) Provide for public participation in the development, revision 
and enforcement of State regulations and the State program, consistent 
with public participation requirements of the Act and this chapter;
    (11) Monitor, review and enforce the prohibition against indirect or 
direct financial interests in coal mining operations, by employees of 
the State regulatory authority, consistent with 30 CFR 705;
    (12) Require the training, examination and certification of persons 
engaged in or responsible for blasting and the use of explosives 
consistent with regulations issued by the Secretary, except that no 
State program is required to implement this provision until six months 
after Federal regulations for this provision have been promulgated;
    (13) Provide for small operator assistance.
    (14) Provide for administrative review of State program actions, in 
accordance with section 525 of the Act and subchapter L of this chapter;
    (15) Provide for judicial review of State program actions in 
accordance with State law, as provided in section 526(e) of the Act, 
except that judicial review of State enforcement actions shall be in 
accordance with section 526 of the Act. Judicial review in accordance 
with State law shall not be construed to limit the operation of the 
rights established in section 520 of the Act, except as provided in that 
section.
    (16) Cooperate and coordinate with and provide documents and other 
information to the Office under the provisions of this chapter.
    (c) The State laws and regulations and the State program do not 
contain provisions which would interfere with or preclude implementation 
of those in the Act and this chapter.
    (d) The State regulatory authority and other agencies having a role 
in the State program have sufficient legal, technical and administrative 
personnel and sufficient funding to implement, administer and enforce 
the provisions of the program, the requirements of paragraph (b) of this 
section, and other applicable State and Federal laws.

[44 FR 15326, Mar. 13, 1979, as amended at 46 FR 53384, Oct. 28, 1981; 
47 FR 26366, June 17, 1982; 48 FR 2272, Jan. 18, 1983; 48 FR 44779, 
Sept. 30, 1983]

    Editorial Note: For a document suspending Sec. 732.15(b)(7) in 
part, see 45 FR 51548, Aug. 4, 1980.



Sec. 732.16  Terms and conditions for State programs.

    Terms and conditions for the implementation, administration and 
operation of a State program may be established by the Director as 
necessary, including, but not limited to--
    (a) Establishing a system for regularly reporting to the Office 
information collected by the State regulatory authority in the conduct 
of the State program; and
    (b) Providing the Office with access to books and records of the 
regulatory authority upon request.

[44 FR 15326, Mar. 13, 1979]



Sec. 732.17  State program amendments.

    (a) This section applies to any alteration of an approved State 
program whether accomplished on the initiative of the State regulatory 
authority or the Director. Such alterations are referred to in this 
section as ``amendments''.
    (b) The State regulatory authority shall promptly notify the 
Director, in writing, of any significant events or proposed changes 
which affect the implementation, administration or enforcement of the 
approved State program. At a minimum, notification shall be required 
for--
    (1) Changes in the provisions, scope or objectives of the State 
program;
    (2) Changes in the authority of the regulatory authority to 
implement, administer or enforce the approved program;
    (3) Changes in the State law and regulations from those contained in 
the approved State program;
    (4) Significant changes in staffing and resources of the regulatory 
authority and divisions or departments of other agencies with duties in 
the approved program;
    (5) Changes in agreements between the regulatory authority and other

[[Page 136]]

agencies which have duties in the approved program;
    (6) Significant changes in funding or budgeting relative to the 
approved program; and
    (7) Significant changes in the number or size of coal exploration or 
surface coal mining and reclamation operations in the State.
    (c) Within 30 days of receipt of notification, in writing, of events 
or proposed changes that may require a State program amendment, or 
whenever the Director becomes aware of conditions described in paragraph 
(e) of this section, the Director shall determine whether a State 
program amendment is required and notify the State regulatory authority 
of the decision.
    (d) The Director shall promptly notify the State regulatory 
authority of all changes in the Act and the Secretary's regulations 
which will require an amendment to the State program.
    (e) State program amendments may be required when--
    (1) As a result of changes in the Act or regulations of this 
chapter, the approved State program no longer meets the requirements of 
the Act or this chapter; or
    (2) Conditions or events change the implementation, administration 
or enforcement of the State program; or
    (3) Conditions or events indicate that the approved State program no 
longer meets the requirements of the Act or this chapter.
    (f)(1) If the Director determines that a State program amendment is 
required, the State regulatory authority shall, within 60 days after 
notification of that decision, submit to the Director either a proposed 
written amendment or a description of an amendment to be proposed that 
meets the requirements of the Act and this chapter, and a timetable for 
enactment which is consistent with established administrative or 
legislative procedures in the State.
    (2) If the State regulatory authority does not submit the 
information required by paragraph (f)(1), or does not subsequently 
comply with the submitted timetable, or if the resulting proposed 
amendment is not approved under this section, then the Director must 
begin proceedings under 30 CFR part 733 if the Director has reason to 
believe that such action is warranted because the State is not 
effectively implementing, administering, maintaining or enforcing all or 
part of its approved State program.
    (g) Whenever changes to laws or regulations that make up the 
approved State program are proposed by the State, the State shall 
immediately submit the proposed changes to the Director as an amendment. 
No such change to laws or regulations shall take effect for purposes of 
a State program until approved as an amendment.
    (h) The following procedures, time schedules and criteria for 
approval and disapproval shall apply to State program amendments.
    (1) Within 30 days after receipt of a State program amendment from a 
State regulatory authority, the Director will publish a notice of 
receipt of the amendment in the Federal Register.
    (2) The Federal Register notice announcing the receipt of the 
amendment will indicate that the amendment(s) is being reviewed by the 
Director and will include the following:
    (i) The text or a summary of the amendment(s) proposed by the 
regulatory authority:
    (ii) Addresses where copies of the proposed amendment(s) may be 
obtained if the text is not included in the Federal Register notice and 
that each requestor may receive, free of charge, one single copy of 
proposed amendment(s) from the Director.
    (iii) Date(s) of public comment period(s) and addresses where public 
comments should be directed;
    (iv) Dates and locations of public hearing(s) and/or meeting(s) if 
public hearing(s) and/or meeting(s) are to be held.
    (3) A minimum public comment period of 30 days will be provided for 
each proposed State program amendment, except a 15 day public comment 
period may be provided where an amendment concerns changes in State law, 
regulations or the procedures contained in the approved program that are 
analogous to changes in SMCRA and/or implementing regulations: Provided, 
That the notice of receipt published in the Federal Register includes 
the full text of the proposed amendment: And

[[Page 137]]

provided, That all applicable provisions of 43 CFR part 14 are complied 
with.
    (4) All State program amendments which may have an effect on 
historic properties shall be provided to the State Historic Preservation 
Officer and to the Advisory Council on Historic Preservation for 
comment.
    (5) Public hearings may be provided at the discretion of the 
Director and shall be held no sooner than five days before the close of 
the public comment period. The comment period shall end on a date 
following any public hearing scheduled to be held.

Public hearing plans will be announced in the notice of receipt of the 
amendment published in the Federal Register. In determining whether to 
hold a public hearing, the Director will consider the subject of the 
amendment, its complexity and public hearing and meetings conducted by 
the State regulatory authority prior to submission of the amendment for 
OSM approval. When State regulatory authority public hearings or 
meetings are accepted in lieu of an OSM hearing, the State regulatory 
authority shall provide to the Director a complete record of any 
hearings or meetings including transcripts, written presentations, 
exhibits and copies of all comments. Hearings shall be informal and 
follow legislative procedures. The format and the rules of procedure for 
each hearing shall be determined by the Director and published in the 
notice required by paragraph (h)(1) of this section.
    (6) Upon the close of the public comment period, the transcript, 
written presentations, exhibits and copies of all comments shall be 
transmitted to the Director.
    (7) The Director shall consider all relevant information, including 
any information obtained from public hearings and comments, and shall 
approve or disapprove the amendment request within 30 days after the 
close of the public comment period established in accordance with Sec. 
732.17(h)(3).
    (8) If the Director does not approve the amendment request, the 
State regulatory authority will have 60 days after publication of the 
Director's decision to submit a revised amendment for consideration by 
the Director. If more time may be needed by the State to submit a 
revised amendment, the Director may grant more time by specifying in the 
decision, a date by which the State regulatory authority must submit a 
revised amendment. The date specified in the Director's decision should 
be based on the circumstances of the situation and the established 
administrative or legislative procedures of the State in question.
    (9) The Director will approve or not approve revised amendment 
submissions in accordance with the provisions under paragraph (h) of 
this section.
    (10) The applicable criteria for approval or disapproval of State 
programs set forth in Sec. 732.15 shall be utilized by the Director in 
approving or disapproving State program amendments.
    (11) State program amendments shall not be approved until the 
Director has--
    (i) Solicited and publicly disclosed the views of the Administrator 
of the Environmental Protection Agency, the Secretary of Agriculture, 
and the heads of other Federal agencies concerned with or having special 
expertise relevant to the program amendment(s) as proposed; and
    (ii) Obtained written concurrence of the Administrator of the 
Environmental Protection Agency with respect to those aspects of a State 
program amendment(s) which relate to air or water quality standards 
promulgated under the authority of the Clean Water Act, as amended (33 
U.S.C. 1251 et seq.), and the Clean Air Act, as amended (42 U.S.C. 7401 
et seq.).
    (12) All decisions approving or not approving program amendments 
must be published in the Federal Register and will be effective upon 
publication unless the notice specifies a different effective date. The 
decision approving or not approving program amendments will be published 
in the Federal Register within 30 days after the date of the Director's 
decision.
    (13) Final action on all amendment requests must be completed within 
seven months after receipt of the proposed amendments from the State.

[44 FR 15326, Mar. 13, 1979, as amended at 46 FR 7909, Jan. 23, 1981; 47 
FR 26366 and 26367, June 17, 1982; 52 FR 4261, Feb. 10, 1987; 70 FR 
61206, Oct. 20, 2005]

[[Page 138]]



PART 733_MAINTENANCE OF STATE PROGRAMS AND PROCEDURES FOR SUBSTITUTING FEDERAL 

ENFORCEMENT OF STATE PROGRAMS AND WITHDRAWING APPROVAL OF STATE PROGRAMS--

Table of Contents



Sec.
733.1 Scope.
733.10 Information collection.
733.11 General requirements for maintaining State programs.
733.12 Procedures for substituting Federal enforcement of State programs 
          or withdrawing approval of State programs.
733.13 Factors to be considered in deciding whether to substitute 
          Federal enforcement for State programs or to withdraw approval 
          of State programs.

    Authority: Secs. 501(b), 503, 504, 517 and 521, Pub. L. 95-87 (30 
U.S.C. 1251(b), 1253, 1254, 1267 and 1271).

    Source: 44 FR 15328, Mar. 13, 1979, unless otherwise noted.



Sec. 733.1  Scope.

    This part establishes requirements for the maintenance of State 
programs and procedures for substituting Federal enforcement of State 
programs and withdrawing approval of State programs.



Sec. 733.10  Information collection.

    The information collection requirement contained in 30 CFR 
733.12(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 OSM to verify the allegations in a 
citizen request to evaluate a State program and to determine whether an 
evaluation should be undertaken.

[47 FR 26366, June 17, 1982]



Sec. 733.11  General requirements for maintaining State programs.

    States with an approved State program shall implement, administer, 
enforce and maintain it in accordance with the Act, this chapter and the 
provisions of the approved State program.



Sec. 733.12  Procedures for substituting Federal enforcement of State programs 

or withdrawing approval of State programs.

    (a) Evaluation. (1) The Director shall evaluate the administration 
of each state program at least annually.
    (2) Any interested person may request the Director to evaluate a 
State program. The request shall set forth a concise statement of the 
facts which the person believes establishes the need for evaluation. The 
Director shall verify the allegations and determine within 60 days 
whether or not the evaluation shall be made and mail a written decision 
to the requestor.
    (b) If the Director has reason to believe that a State is not 
effectively implementing, administering, maintaining or enforcing any 
part of its approved State program, the Director shall promptly notify 
the State regulatory authority in writing. The Director's notice shall--
    (1) Provide sufficient information to allow the State regulatory 
authority to determine what portions of the program the Director 
believes are not being effectively implemented, administered, 
maintained, or enforced;
    (2) State the reasons for such belief; and
    (3) Specify the time period for the State regulatory authority to 
accomplish any necessary remedial actions.
    (c) The Director shall provide the State regulatory authority an 
opportunity for an informal conference if the State requests an informal 
conference within 15 days after the expiration of the time period 
specified in paragraph (b)(3) of this section. The informal conference 
may pertain to the facts or the time period for accomplishing remedial 
actions as specified by the Director's notification.
    (d) If an informal conference is not held under paragraph (c) of 
this section, or if, following such a conference, the Director still has 
reason to believe that the State is failing to adequately implement, 
administer, maintain or enforce a part or all of a State program, the 
Director shall give notice to the State and to the public, specifying 
the basis for that belief and shall hold a public hearing in the State 
within 30

[[Page 139]]

days of the expiration of the time period specified in paragraph (b)(3) 
of this section or as modified at the informal conference held under 
paragraph (c) of this section.
    (e) The State will continue to enforce its approved program unless 
upon completion of the hearing under paragraph (d) of this section and 
based upon the review of all available information, including the 
hearing transcript, written presentations and written comments, the 
Director finds that the State has failed to implement, administer, 
maintain or enforce effectively all or part of its approved State 
program. If the Director finds further that the State has not 
demonstrated its capability and intent to administer the State program, 
the Director shall either--
    (1) Substitute for the State regulatory authority direct Federal 
enforcement of all or part of the State program in accordance with 
paragraph (f) of this section; or
    (2) Recommend to the Secretary that he or she withdraw approval of 
the State program, in whole or in part, in accordance with paragraph (g) 
of this section. The recommendation shall be accompanied by all relevant 
information and shall include the reasons for the recommendation.
    (f) Substituted Federal enforcement. (1) The Director shall give 
public notice of a finding under paragraph (e) of this section and 
specify the extent to which the Director is instituting direct Federal 
enforcement of a State program.
    (2) During the period beginning with the public notice and ending 
when the State satisfies the Director that it will enforce the State 
program effectively, the Director shall enforce those portions of the 
State program and any additional regulations that the Office has adopted 
as necessary to enable the Director to perform his or her duties. To the 
extent the Director has assumed direct Federal enforcement of the State 
program, the Director shall--
    (i) Enforce any permit condition required under the Act;
    (ii) Issue any new or revised permit pursuant to any additional 
regulation that the Director may promulgate at the time of assumed 
enforcement; and
    (iii) Conduct inspections and issue notices, orders and assessments 
of penalties as may be necessary for compliance with those permit 
conditions, the Act and the State program in accordance with subchapter 
L.
    (3) In the case of a State permittee who has met his or her 
obligations under an existing State permit and who did not willfully 
secure the issuance of that permit through fraud or collusion, the 
Director shall give the permittee a reasonable time to conform ongoing 
surface mining and reclamation operations to the requirements of the 
Act, before suspending or revoking the State permit.
    (g) Withdrawing approval of State program. (1) Upon recommending 
withdrawal of approval of a State program to the Secretary, the Director 
shall institute direct Federal enforcement in accordance with the 
requirements of paragraph (f) of this section.
    (2) Upon receipt of the Director's recommendation and accompanying 
information under paragraph (e)(2) of this section the Secretary shall 
either--
    (i) Withdraw approval of the State program in whole or in part if 
the Secretary finds that failure by the State to administer or enforce 
part or all of its State program cannot effectively be remedied by 
substitution of direct Federal enforcement for all or part of the State 
program, or
    (ii) Instruct the Director to continue direct Federal enforcement in 
accordance with paragraph (f) of this section.
    (3) The Secretary shall give public notice of a finding under 
paragraph (g)(2)(i) of this section, and specify the extent to which 
approval of a State program is being withdrawn. Not later than the 
issuance of the notice, the Director shall propose promulgation of, and 
thereafter promulgate and implement a Federal program for the affected 
State, in accordance with 30 CFR part 736.

[44 FR 15328, Mar. 13, 1979, as amended at 47 FR 26366, June 17, 1982]



Sec. 733.13  Factors to be considered in deciding whether to substitute 

Federal enforcement for State programs or to withdraw approval of State 

programs.

    The record of the State in fulfilling the conditions of the original 
approval or adjusting to new circumstances, in

[[Page 140]]

accordance with requirements of the Act and this chapter, the hearings 
transcripts, written presentations and comments shall be considered in 
evaluating the maintenance, administration, or enforcement of a State 
program for purposes of determining whether to substitute direct Federal 
enforcement of the State program or to withdraw approval of part or all 
of the program.

[44 FR 15328, Mar. 13, 1979, as amended at 47 FR 26366, June 17, 1982]



PART 735_GRANTS FOR PROGRAM DEVELOPMENT AND ADMINISTRATION AND ENFORCEMENT--

Table of Contents



Sec.
735.1 Scope.
735.2 Objectives.
735.3 Authority.
735.4 Responsibility.
735.5 Definitions.
735.10 Information collection.
735.11 Eligibility for program development grants.
735.12 Eligibility for administration and enforcement grants.
735.13 Submission of estimated annual budgets and allocation of funds.
735.14 Coverage of grants.
735.15 Amount of grants.
735.16 Special provisions for States with cooperative agreements.
735.17 Grant periods.
735.18 Grant application procedures.
735.19 Grant agreement.
735.20 Grant amendments.
735.21 Grant reduction and termination.
735.22 Audit.
735.23 Administrative procedures.
735.24 Allowable costs.
735.25 Financial management.
735.26 Reports.
735.27 Records.
735.28 Disclosure of information.

    Authority: Secs. 201, 501, and 502, Pub. L. 95-87, 91 Stat. 445 (30 
U.S.C. 1201).

    Source: 42 FR 62706, Dec. 13, 1977, unless otherwise noted. 
Redesignated at 44 FR 15312, Mar. 13, 1979.



Sec. 735.1  Scope.

    This part sets forth policies and procedures for grants to States 
to--
    (a) Develop State programs for the regulation and control of surface 
coal mining and reclamation operations;
    (b) Administer and enforce State programs for the regulation and 
control of surface coal mining and reclamation operations; and
    (c) Administer cooperative agreements for State regulation of 
surface coal mining and reclamation operations on Federal lands.
    (d) Fund the Small Operator Assistance Program established under 
section 507(c) of the Surface Mining Control and Reclamation Act of 1977 
(30 U.S.C. 1201) and described in part 795 of this chapter.

[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979 
and amended at 47 FR 38491, Aug. 31, 1982]



Sec. 735.2  Objectives.

    The objectives of assistance under this part are--
    (a) To assist the States in meeting the costs of administering 
reclamation and enforcement programs consistent with the Act;
    (b) To encourage the States to build strong reclamation and 
enforcement programs; and
    (c) To encourage the States to assume jurisdiction over the 
regulation of surface coal mining and reclamation operations.



Sec. 735.3  Authority.

    Section 705 of the Surface Mining Control and Reclamation Act of 
1977 (30 U.S.C. 1201) authorizes the Secretary to make grants to States 
for developing, administering, and enforcing State regulatory programs.



Sec. 735.4  Responsibility.

    (a) The Director shall administer the State grant program for the 
development, administration, and enforcement of State programs under 
this part.
    (b) The Director or his authorized designee shall receive, review 
and approve grant applications under this part.

[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 47 FR 38491, Aug. 31, 1982]



Sec. 735.5  Definitions.

    As used in this part, agency means the State agency designated by 
the Governor to receive and administer grants under this part.

[[Page 141]]



Sec. 735.10  Information collection.

    (a) The information collection and retention requirements in 30 CFR 
735.13 (a) and (b), 735.16(e), 735.18, 735.26 and 735.27 were approved 
by the Office of Management and Budget (OMB) under 44 U.S.C. 3507 and 
assigned clearance numbers for Sec. Sec. 735.13 (a) and (b); SF 424, 
1029-0016; OSM 50-A, 1029-0079; OSM 50-B, 1029-0078; OSM-47, 1029-0064; 
OSM-48, 1029-0070; OSM-51, 1029-0072; OSM-51A, 1029-0074; OSM-51B, 1029-
0075; OSM-51C, 1029-0069; for Sections 735.16(e) and 735.18; SF 269, 
1029-0017; OSM-51, 1029-0072; SF 271, 1029-0073; OSM-51A, 1029-0074; 
OSM-51B, 1029-0075; OSM-51C, 1029-0069; OSM-60, 1029-0076; OSM-62, 1029-
0077; and OSM-63, 1029-0068; for section 735.26; and section 735.27 
which was included in the above clearance numbers.
    (b) The information required by 30 CFR part 735 will be used by 
OSM's Headquarters and State offices in administering, evaluating and 
auditing its State reimbursement grants for program development and 
administration and enforcement to insure that the requirements of OMB 
Circular A-102 and the Surface Mining Control and Reclamation Act are 
met. The information required by 30 CFR part 735 is mandatory.

[47 FR 38491, Aug. 31, 1982]



Sec. 735.11  Eligibility for program development grants.

    (a) Designation of State agency. In order to receive a program 
development grant the Governor of a State shall designate in writing to 
the Director one agency to submit the grant applications, and to receive 
and administer the grants.
    (b) Periods covered by program development grants. (1) An agency may 
apply for a program development grant for any period for which it does 
not have an approved State program. This is limited to periods during--
    (i) The initial development of a State program;
    (ii) The revision of a State program which has been disapproved by 
the Secretary; and
    (iii) The revision of a State program from which the Secretary has 
withdrawn his approval.
    (2) The Director shall limit grants for (b)(1) (ii) and (iii) of 
this paragraph to the costs of making revisions necessary to secure 
approval of the State programs.
    (3) The Director shall not approve grants for costs incurred prior 
to August 3, 1977.

(Secs. 201, 501, 503, 705, Pub. L. 95-87, 91 Stat. 450, 467, 470, 520, 
(30 U.S.C. 1211, 1251, 1253, 1295))

[42 FR 62706, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1977. Redesignated at 
44 FR 15312, Mar. 13, 1979, and amended at 45 FR 2804, Jan 14, 1980]



Sec. 735.12  Eligibility for administration and enforcement grants.

    (a) Approved program required. In order to receive a grant to 
administer and enforce a State program, the State must have an approved 
State regulatory program.
    (b) Designation of a State agency. In order to receive a grant to 
administer and enforce a State program, the Governor must designate a 
single agency to receive and administer administration and enforcement 
grants, including cooperative agreement grants described in Sec. 735.16 
of this part.
    (c) Nondiscrimination. The agency shall monitor the compliance 
activity of its subrecipients with respect to the nondiscrimination 
provisions in Sec. 735.21(a)(4) of this part.



Sec. 735.13  Submission of estimated annual budgets and allocation of funds.

    (a) Budget summaries for Federal budget. For each fiscal year, the 
agency shall submit to the Director or his authorized designee 18 months 
prior to the Federal fiscal year for which the grant will be requested, 
a projection of its program budget (personnel and fringe benefits, 
travel, equipment and supplies, contractual, indirect charges, and 
other), including the costs of administering State-Federal cooperative 
agreements pursuant to Sec. 211.75 of this title, and any aircraft 
which the agency proposes to acquire. The Director will use these budget 
summaries in preparing the Federal budget estimates which he is required 
to submit.
    (b) Updated budget summary. For each fiscal year, the agency shall 
submit to the Director or his authorized

[[Page 142]]

designee a current program budget (personnel and fringe benefits, 
travel, equipment and supplies, contractual, indirect charges, and 
other) three months prior to the beginning of the Federal fiscal year 
for which a grant will be requested.
    (c) Allocation of funds. (1) The Director shall allocate to the 
agencies the full amount requested and approved in the States' revised 
or actual budgets provided that the amount available in the Federal 
budget is sufficient.
    (2) If the funds available for grants are insufficient to cover the 
total grant needs, including cooperative agreement grants, the Director 
shall allocate the funds available according to the proportion of each 
requested and approved agency's budget to the total of all agencies' 
requested and approved budgets.
    (3) Allocation of a specific amount of funds to an agency does not 
assure that grants for that amount will be approved. Each agency must 
apply for and secure approval of grants in accordance with the 
requirements of this part.
    (4) The Director shall reallocate any funds which are not requested 
by agencies as of June 1 of that year. Such funds shall be allocated 
primarily to those agencies which have received less than the allowable 
percentage of their eligible costs.
    (5) Agencies which are allocated such additional funds may submit 
new or revised grant applications for the additional amounts on or 
before August 15, of that year.

[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 47 FR 38491, Aug. 31, 1982]



Sec. 735.14  Coverage of grants.

    (a) Program development grants. An agency may use grant money under 
this part to cover the costs of developing--
    (1) New or revised State laws, regulations, and procedures;
    (2) Revised or expanded inspection systems;
    (3) Training programs for inspectors and other personnel;
    (4) New or revised organizational structures;
    (5) Information and communications systems, including data 
processing systems;
    (6) A planning process including a data base and information system 
to receive and act upon petitions to designate lands unsuitable for 
mining;
    (7) An application for the initial administration and enforcement 
grant to the extent not covered by indirect costs or other cost items;
    (8) Other components necessary to obtain an approved State program, 
as mutually agreed upon by the Director or his authorized designee and 
the agency receiving a grant.
    (b) Administration and enforcement grants. An agency may use grant 
money under this part to cover the costs of--
    (1) Administering an approved State regulatory program;
    (2) Providing supporting and administrative services required by the 
State regulatory program;
    (3) Providing equipment required for the regulatory program and its 
support, either through use charges or direct purchase. Equipment 
charges and purchases will be allowed in accordance with Federal 
Management Circular 74-4, ``Cost principles applicable to grants and 
contracts with State and local governments,'' (34 CFR part 255) and 
Office of Management and Budget Circular No. A-102, ``Uniform 
administrative requirements for grants-in-aid to State and local 
governments'' (42 FR 45828).



Sec. 735.15  Amount of grants.

    (a) Amount of program development grants. (1) For the first year of 
a program development grant the Director or his authorized designee 
shall approve grants for not more than 80 percent of the total of agreed 
upon costs pursuant to Sec. 735.14(a).
    (2) For the second year of a program development grant the Director 
or his authorized designee shall approve grants for not more than 60 
percent of the total agreed upon costs pursuant to Sec. 735.14(a).
    (3) For the third year and each following year of a program 
development grant the Director or his authorized designee shall approve 
grants for not more than 50 percent of the total

[[Page 143]]

agreed upon costs pursuant to Sec. 735.14(a).
    (b) Amount of administration and enforcement grants. (1) If no 
program development grant has been awarded, the Director or his 
authorized designee may approve the first administration and enforcement 
grant for not more than 80 percent of the agreed upon costs for 
administration and enforcement of the program.
    (2) If a program development grant has been awarded for only 1 year, 
the Director or his authorized designee may approve an administration 
and enforcement grant for 60 percent of the agreed upon costs for 
administration and enforcement of the program.
    (3) If a program development grant has been awarded for more than 1 
year but less than 2 years, the Director or his authorized designee may 
approve the first administration and enforcement grant for 60 percent 
for that proportion remaining in the second year and for 50 percent for 
the proportion allocated to the third year.
    (4) For the third and following years, the Director or his 
authorized designee may approve administration and enforcement grants 
for 50 percent of the agreed upon costs for administration and 
enforcement of the program.

(Secs. 201, 501, 503, 705, Pub. L. 95-87, 91 Stat. 450, 467, 470, 520 
(30 U.S.C. 1211, 1251, 1253, 1295))

[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 45 FR 2804, Jan. 14, 1980]



Sec. 735.16  Special provisions for States with cooperative agreements.

    (a) Eligibility. The Director may approve additional grants to 
States which have cooperative agreements pursuant to Sec. 211.75 of 
this title for State regulation of surface coal mining and reclamation 
operations on Federal lands. This includes--
    (1) States which had cooperative agreements on August 3, 1977, which 
have been modified to comply with the initial regulatory program; and
    (2) States which enter into cooperative agreements following 
approval of the State's regulatory program.
    (b) Coverage of grants. An agency may use cooperative agreement 
grants to carry out the functions assigned to the State under the 
agreement.
    (c) Amounts of grants. The Director or his authorized designee may 
approve grants for the approximate amount which he determines the 
Federal Government would have expended for regulation of coal mining on 
the Federal lands being regulated by the State, except that no grant may 
exceed the actual costs to the State.
    (d) Grant periods. The Director or his authorized designee shall 
normally approve a grant for a period of one year or less. Consecutive 
grants shall be awarded to fund approved programs.
    (e) Application procedures. (1) States with cooperative agreements 
in effect on August 3, 1977, may apply for cooperative agreement grants 
using the procedures set forth in Sec. 735.18 (a), (b) and (d).
    (2) States with cooperative agreements established in conjunction 
with approved State regulatory programs may apply for cooperative 
agreement grants by including a supplement to an annual administration 
and enforcement grant application submitted according to Sec. 735.18. 
The State shall include in the supplemental section:
    (i) A separate budget summary for the costs of the cooperative 
agreement in the format specified by OSM; and
    (ii) A separate narrative, in the format specified by OSM, 
describing the specific activities required by the cooperative agreement 
for the period for which the grant is requested.
    (f) Other requirements. The procedures and requirements set forth in 
Sec. Sec. 735.17 through 735.26 are applicable to cooperative agreement 
grants.

[42 FR 62706, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1977. Redesignated at 
44 FR 15312, Mar. 13, 1979, and amended at 47 FR 38491, Aug. 31, 1982]



Sec. 735.17  Grant periods.

    The Director or his authorized designee shall normally approve a 
grant for a period of one year or less. Consecutive grants shall be 
awarded to fund approved programs.

[47 FR 38491, Aug. 31, 1982]

[[Page 144]]



Sec. 735.18  Grant application procedures.

    (a) The agency shall submit its application (three copies) to the 
Director or his authorized designee at least sixty days prior to the 
beginning of the intended grant period, or as soon thereafter as 
possible.
    (b) The agency shall use the application forms and procedures 
specified by OSM in accordance with Office of Management and Budget 
Circular No. A-102. No pre-application is required. Each application 
must include the following:
    (1) Part I, Application Form Coversheet, SF 424.
    (2) Part II, Project Approval Information.
    (i) For non-construction grants use Form OSM-50A, Project Approval 
Information--Section A.
    (ii) For construction grants use Form OSM-50A, Project Approval 
Information--Section A, and Form OSM-50B, Project Approval Information--
Section B.
    (3) Part III, Budget Information.
    (i) For non-construction grants use Form OSM-47, Budget Information 
Report, with a narrative explanation of computations.
    (ii) For construction grants use Form OSM-48, Budget Information--
Construction, with a narrative explanation of computations.
    (4) Part IV, Program Narrative Statement, Form OSM-51, providing the 
narrative for the goals to be achieved for both construction and non-
construction grants.
    (i) Form OSM-51 is supplemented by completion of Column 5A of Forms 
OSM-51A and OSM-51B which reports the quantitative Program Management 
information of the Administration and Enforcement grants.
    (ii) Form OSM-51 is supplemented by completion of Column 5A of Form 
OSM-51C which reports the quantitative Program Management information of 
the Small Operator Assistance Program Administration and Operational 
grant.
    (5) Part V, The standard assurances for non-construction activities 
or construction activities as specified in Office of Management and 
Budget Circular No. A-102, Attachment M.
    (c) For program development grant applications, agencies shall 
include:
    (1) An analysis and evaluation of the current State laws and changes 
required therein to conform to the requirements of the Surface Mining 
Control and Reclamation Act of 1977, unless previously submitted under 
part 725;
    (2) A description of the changes expected to be requiredin State 
regulations, organization, staffing, training and other policies and 
operations in order to develop a State program which can be approved; 
and
    (3) A program to develop the legislation, regulations, procedures, 
organization, staffing, training materials, and other program elements 
necessary to obtain program approval.
    (d) For administration and enforcement grants and cooperative 
agreement grants, agencies shall include:
    (1) A description of the specific operations in the approved program 
which will be implemented during the period for which the grant is 
requested.
    (2) A description and justification of any major equipment 
(equipment with a unit acquisition cost of $500 or more and having a 
life of more than two years) which the agency proposes to acquire with 
the grant.
    (e) The Director or his authorized designee shall notify the agency 
within thirty days after the receipt of a complete application, or as 
soon thereafter as possible, whether it is or is not approved. If the 
application is not approved, the Director or his authorized designee 
shall set forth in writing the reasons for disapproval and may propose 
modifications if appropriate. The agency may resubmit the application. 
The Director or his authorized designee shall process the revised 
application as an original application.

[47 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 47 FR 38492, Aug. 31, 1982]



Sec. 735.19  Grant agreement.

    (a) If the Director or his authorized designee approves an agency's 
grant application, the Director or his authorized designee shall prepare 
a grant agreement which includes--
    (1) The approved scope of the program to be covered by the grant;

[[Page 145]]

    (2) The approved budget, including the Federal share;
    (3) Commencement and completion dates for the segment of the program 
covered by the grant and for major phases of the program to be completed 
during the grant period; and
    (4) Permissible transfers of funds to other State agencies.
    (b) The Director or his authorized designee may permit an agency to 
assign functions and funds to other State agencies. The Director or his 
authorized designee shall require the grantee agency to retain 
responsibility for overall administration of the grant, including use of 
funds, accomplishment of functions and reporting.
    (c) Pre-agreement costs for program development grants shall be 
allowed only as specified in the grant agreement.
    (d) The Director or his authorized designee shall transmit four 
copies of the grant agreement by certified mail, return receipt 
requested, to the agency for signature. The agency shall execute the 
grant agreement and return all copies of it within 3 calendar weeks 
after receipt, or within an extension of such time that may be granted 
by the Director or his authorized designee.
    (e) The Director or his authorized designee shall sign the grant 
agreement upon its return from the agency and return one copy to the 
agency. The grant is effective and constitutes an obligation of Federal 
funds in the amount and for the purposes stated in the grant agreement 
at the time the Director or his authorized designee signs the agreement.
    (f) Neither the approval of a program nor the award of any grant 
will commit or obligate the United States to award any continuation 
grant or enter into any grant amendment, including grant increases to 
cover cost overruns.



Sec. 735.20  Grant amendments.

    (a) A grant amendment is a written alteration in the grant amount, 
grant terms or conditions, budget or period, or other administrative, 
technical, or financial agreement whether accomplished on the initiative 
of the agency or the Director or his authorized designee, or by mutual 
action of the agency and the Director or his authorized designee.
    (b) The agency shall promptly notify the Director or his authorized 
designee in writing of events or proposed changes which may require a 
grant amendment, such as--
    (1) Rebudgeting;
    (2) Changes which may affect the approved scope or objective of a 
program; or
    (3) Changes which may increase or substantially decrease the total 
cost of a program.
    (c) The Director or his authorized designee shall approve or 
disapprove each proposed amendment within thirty days of receipt, or as 
soon thereafter as possible, and shall notify the agency in writing of 
the approval or disapproval of the amendment.
    (d) The date the Director or his authorized designee signs the grant 
amendment establishes the effective date of the action. If no time 
period is specified in the grant amendment, then the amendment applies 
to the entire grant period.

[42 FR 62706, Dec. 13, 1977. Redesignated at 44 FR 15312, Mar. 13, 1979, 
and amended at 47 FR 38492, Aug. 31, 1982]



Sec. 735.21  Grant reduction and termination.

    (a) Conditions for reduction or termination. (1) If an agency 
violates the terms of a grant agreement, the Director or his authorized 
designee may reduce or terminate the grant.
    (2) If an agency fails to implement, enforce or maintain an approved 
program, or cooperative agreement, the Director or his authorized 
designee shall terminate the administration and enforcement grant or 
cooperative agreement grant.
    (3) If an agency fails to implement, enforce or maintain only a part 
of the program, the Director or his authorized designee shall reduce the 
grant to the amount of the program being operated by the agency.
    (4) If an agency is not in compliance with the following 
nondiscrimination provisions, the Director or his authorized designee 
shall terminate the grant--
    (i) Title VI of the Civil Rights Act of 1964 (78 Stat. 252). 
Nondiscrimination in

[[Page 146]]

Federally Assisted Programs, which provides that no person in the United 
States shall on the grounds of race, color or national origin be 
excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under any program or activity receiving 
Federal financial assistance, and the implementing regulations at 43 CFR 
part 17.
    (ii) Executive Order 11246, as amended by Executive Order 11375, 
Equal Employment Opportunity, requiring that employees or applicants for 
employment not be discriminated against because of race, creed, color, 
sex, or national origin, and the implementing regulations at 41 CFR part 
60.
    (iii) Section 504 of the Rehabilitation Act of 1973, as amended by 
Executive Order 11914, Nondiscrimination With Respect to the Handicapped 
in Federally Assisted Programs.
    (5) If an agency fails to enforce the financial interest provisions 
of part 706 of this chapter the Director shall terminate the grant.
    (6) If an agency fails to submit reports required by this part or 
part 705 of this chapter the Director shall reduce or terminate the 
grant.
    (b) Grant reduction and termination procedures. (1) The Director or 
his authorized designee shall give at least 10 days written notice to 
the agency by certified mail, return receipt requested, of intent to 
reduce or terminate a grant. The Director or his authorized designee 
shall include in the notice the reasons for the proposed action and the 
proposed effective date of the action.
    (2) The Director or his authorized designee shall afford the agency 
opportunity for consultation and remedial action prior to reducing or 
terminating a grant.
    (3) The Director or his authorized designee shall notify the agency 
of the termination or reduction of the grant in writing by certified 
mail, return receipt requested.
    (4) Upon termination the agency shall refund or credit to the United 
States that portion of the grant money paid or owed to the agency and 
allocated to the terminated portion of the grant. However any portion of 
the grant that is required to meet commitments made prior to the 
effective date of termination shall be retained by the agency.
    (5) The agency shall reduce the amount of outstanding commitments 
insofar as possible and report to the Director or his authorized 
designee the uncommitted balance of funds awarded under the grant.
    (6) Upon notification of intent to terminate the agency shall not 
make any new commitments without the approval of the Director or his 
authorized designee.
    (7) The Director or his authorized designee may allow termination 
costs as determined by applicable Federal cost principles listed in 
Federal Management Circular 74-4.
    (c) Appeals. (1) An agency may appeal the Director or his authorized 
designee's decision to reduce or terminate a grant to the Director 
within 30 days of the Director or his authorized designee's decision.
    (2) An agency shall include in an appeal--
    (i) The decision being appealed, and
    (ii) The facts which the agency believes justify a reversal or 
modification of the decision.
    (3) The Director shall act upon appeals within 30 days of their 
receipt, or as soon thereafter as possible.

[58 FR 41938, Aug. 5, 1993]



Sec. 735.22  Audit.

    The agency shall arrange for an independent audit no less frequently 
than once every two years, pursuant to the requirements of Office of 
Management and Budget Circular No. A-102, Attachment P. The audits will 
be performed in accordance with the ``Standards for Audit of 
Governmental Organizations, Programs, Activities, and Functions'' and 
the ``Guidelines for Financial and Compliance Audits of Federally 
Assisted Programs'' published by the Comptroller General of the United 
States and guidance provided by the cognizant Federal audit agency.

[47 FR 38492, Aug. 31, 1982]



Sec. 735.23  Administrative procedures.

    The agency shall follow administrative procedures governing 
accounting,

[[Page 147]]

payment, property and related requirements contained in Office of 
Management and Budget Circular No. A-102.



Sec. 735.24  Allowable costs.

    The Director or his authorized designee shall determine costs which 
may be reimbursed according to Office of Management and Budget Circular 
No. A-87.

[47 FR 38492, Aug. 31, 1982]



Sec. 735.25  Financial management.

    (a) The agency shall account for grant funds in accordance with the 
requirements of Office of Management and Budget Circular No. A-102. 
Agencies shall use generally accepted accounting principles and 
practices, consistently applied. Accounting for grant funds must be 
accurate and current.
    (b) The agency shall adequately safeguard all funds, property, and 
other assets and shall assure that they are used solely for authorized 
purposes.
    (c) The agency shall provide a comparison of actual amounts spent 
with budgeted amounts for each grant.
    (d) When advances are made by a letter-of-credit method, the agency 
shall make drawdowns from the U.S. Treasury through its commerical bank 
as closely as possible to the time of making the disbursements.
    (e) The agency shall support accounting records by source 
documentation.
    (f) The agency shall design a systematic method to assure timely and 
appropriate resolution of audit findings and recommendations.



Sec. 735.26  Reports.

    (a) The agency shall, for each grant made under this part, submit 
semiannually to the Director or his authorized designee a Financial 
Status Report, Form 269 for non-construction grant activities in 
accordance with Office of Management and Budget Circular No. A-102, 
Attachment H and OSM requirements. This report shall be accompanied by a 
Performance Report, Form OSM-51 comparing actual accomplishments to the 
goals established for the period, prepared according to Attachment I of 
OMB Circular No. A-102 and OSM requirements. The agency shall also 
submit semiannually a separate Outlay Report and Request for 
Reimbursement for Construction Programs, Form 271, and accompanying 
narrative performance report comparing actual accomplishments with 
planned goals on grant funded construction activities.
    (b) The Director or his authorized designee shall require through 
the grant agreement that semiannual reports describe the relationship of 
financial information to performance and productivity data, including 
unit cost information. This quantitative information will be reported on 
Forms OSM-51A and OSM-51B or OSM-51C, Quantitative Program Management 
Information, as applicable.
    (c) The Director or his authorized designee shall require that when 
a grant is closed out in accordance with Attachment L to Office of 
Management and Budget Circular No. A-102, the following actions are 
taken:
    (1) The grantee shall account for any property acquired with grant 
funds or received from the Government in accordance with the provisions 
of Attachment N to Office of Management and Budget Circular No. A-102. 
This may be accomplished by the submission of the Report of Government 
Property, Form OSM-60.
    (2) The grantee shall submit a final financial report and thus 
release OSM from obligations under each grant or cooperative agreement 
that is being closed out.

[47 FR 38492, Aug. 31, 1982]



Sec. 735.27  Records.

    (a) The agency shall maintain complete records in accordance with 
Office of Management and Budget Circular No. A-102. This includes books, 
documents, maps, and other evidence and accounting procedures and 
practices, sufficient to reflect properly--
    (1) The amount, receipt, and disposition by the agency of all 
assistance received for the program.
    (2) The total costs of the program, including all direct and 
indirect costs of whatever nature incurred for the performance of the 
program for which the grant has been awarded.
    (b) Subgrantees and contractors, including contractors for 
professional

[[Page 148]]

services, shall maintain books, documents, papers, maps, and records 
which are pertinent to specific grant award.
    (c) The agency's records and the records of its subgrantees and 
contractors, including professional services contracts, shall be subject 
at all reasonable times to inspection, reproduction, copying, and audit 
by the Office, the Department of the Interior, the Comptroller General 
of the United States, the Department of Labor or any authorized 
representative.
    (d) For completed or terminated grants the agency, subgrantees, and 
contractors shall preserve and make their records available to the 
Office, the Department of the Interior, the Comptroller General of the 
United States, Department of Labor, or any authorized representative 
pursuant to OMB Circular No. A-102.



Sec. 735.28  Disclosure of information.

    All grant applications received by the Director or his authorized 
designee constitute agency records. As such, their release may be 
requested by any member of the public under the Freedom of Information 
Act, 5 U.S.C. 552, and shall be disclosed unless exempt from disclosure 
under 5 U.S.C. 552(b).



PART 736_FEDERAL PROGRAM FOR A STATE--Table of Contents



Sec.
736.1 Scope.
736.11 General procedural requirements.
736.12 Notice, comment and hearing procedures.
736.13 [Reserved]
736.14 Director's decision.
736.15 Implementation, enforcement, and maintenance of a Federal 
          program.
736.16 Federal program termination procedures.
736.17 Consolidation of procedures.
736.21 General requirements of a Federal program.
736.22 Contents of a Federal program.
736.23 Federal program effect on State law or regulations.
736.24 Federal program effect on State funding.
736.25 Permit fees.

    Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-34.

    Source: 44 FR 15329, Mar. 13, 1979, unless otherwise noted.



Sec. 736.1  Scope.

    This part establishes standards and procedures for the promulgation, 
implementation, maintenance, administration, revision and termination of 
a Federal program for a State for coal exploration and surface coal 
mining and reclamation operations on non-Federal and non-Indian lands 
within that State.



Sec. 736.11  General procedural requirements.

    (a) Promulgation. (1) The Director shall promulgate and, subject to 
the provisions of this part, implement a Federal program for a State if 
the Director reasonably expects coal exploration or surface coal mining 
and reclamation operations to exist on non-Federal and non-Indian lands 
within the State at any time before June 1985, and the State fails to--
    (i) Submit a State program for regulation of coal exploration and 
surface coal mining and reclamation operations on non-Federal and non-
Indian lands within that State to the Director as provided in 30 CFR 
731.12; or
    (ii) Resubmit an acceptable State program within 60 days of a notice 
of disapproval of a State program pursuant to Sec. 732.13(f). The 
Director shall not promulgate a Federal program before the expiration of 
the initial period allowed for submission of a State program, as 
provided in Sec. 731.12.
    (2) The Director shall promulgate a complete Federal program for a 
State upon the withdrawal of approval of an entire State program under 
Sec. 733.12.
    (3) The Director shall promulgate a partial Federal program for a 
State upon the withdrawal of approval of part of a State program under 
30 CFR part 733.
    (b) Revision. The Director may revise a Federal program for a State, 
if necessary to further the purposes of the Act and the regulations 
adopted under the Act.
    (c) Termination. The Director shall terminate appropriate portions 
of a Federal program for a State, upon approval of a State program under 
30 CFR parts 731 and 732 that replaces a

[[Page 149]]

complete or partial Federal program for that State.

[44 FR 15329, Mar. 13, 1979, as amended at 47 FR 26367, June 17, 1982]



Sec. 736.12  Notice, comment and hearing procedures.

    Prior to the promulgation or revision of a Federal program for a 
State, OSMRE shall:
    (a) Federal Register notice. Publish in the Federal Register a 
notice which:
    (1) Includes the basis, purpose and substance of the proposed 
Federal program or revision;
    (2) Offers any person an opportunity to submit written comments on 
the proposed Federal program or revision for a period to end no less 
than 30 days after the date of the notice;
    (3) Offers to hold a public hearing on the proposed Federal program 
or revision in the affected State during the comment period if requested 
by any person;
    (4) Gives the address of an appropriate place where any person, 
during normal business hours, may inspect and copy a copy of the 
administrative record for the proposed Federal program or revision;
    (5) For an indirect revision of a Federal program, states that the 
affected provision of the permanent program is cross-referenced by the 
Federal program, and thus that the proposed permanent program revision 
also would revise the Federal program;
    (b) Newspaper notice. For the initial promulgation of a Federal 
program for a State, publish in a newspaper of general circulation in 
the coal mining area of the affected State a notice concerning the 
proposed rulemaking which includes the information required by paragraph 
(a) of this section, except that for the substance of the proposed 
Federal program or revision OSMRE may substitute a brief description; 
and
    (c) Federal agency comment. As appropriate, solicit comments from 
the Administrator of the Environmental Protection Agency, the Secretary 
of Agriculture, and the heads of other Federal agencies concerned with 
or having special expertise relevant to the proposed Federal program or 
revision.

[52 FR 39407, Oct. 21, 1987]



Sec. 736.13  [Reserved]



Sec. 736.14  Director's decision.

    (a) After considering all relevant information received under Sec. 
736.12 of this part, the Director shall decide whether to promulgate or 
revise a Federal program for the State.
    (b) The Director shall publish the decision in the Federal Register, 
including a statement of the basis and purpose for the decision, the 
regulations of the Federal program for the State or revision thereof, 
and the effective date of the program or revision.

[44 FR 15329, Mar. 13, 1979, as amended at 52 FR 39408, Oct. 21, 1987]



Sec. 736.15  Implementation, enforcement, and maintenance of a Federal 

program.

    (a) The Director shall implement, administer, enforce, and maintain 
a Federal program or any revision thereto not later than 30 days after a 
Federal program is promulgated or revised.
    (b)(1) Except as provided in pargraph (b)(2) of this section, the 
Director shall implement the procedures and criteria of a Federal 
program for a State for designating lands unsuitable for all or certain 
types of surface coal mining one year after a Federal program is made 
effective for a State.
    (2) When a complete or partial Federal program is promulgated 
because of a State's failure to implement, maintain, or enforce 
adequately all or a part of its State program, all applicable portions 
of the Federal program for the State under this part shall be effective 
immediately upon implementation of the Federal program.

[48 FR 41348, Sept. 14, 1983]



Sec. 736.16  Federal program termination procedures.

    Termination of a Federal program shall be accomplished at the same 
time and through the procedures for approval of a State program under 30 
CFR part 732. No Federal program shall be considered terminated until a 
State program has been approved by the Secretary in accordance with 30 
CFR part 732.

[[Page 150]]



Sec. 736.17  Consolidation of procedures.

    The Director may consolidate public notices, hearings, opportunity 
for public comment and decisions on the promulgation, revision or 
termination of a Federal program for a State under this part, with 
public notices, opportunity for public comment and hearings on the 
approval, disapproval or withdrawal of a State program under 30 CFR 
parts 732 through 733.



Sec. 736.21  General requirements of a Federal program.

    (a) Any complete Federal program promulgated or revised by the 
Director shall include the contents identified in 30 CFR 736.22.
    (b) Any partial Federal program shall include all of the contents 
identified in 30 CFR 736.22 to the extent that those aspects of coal 
exploration and surface coal mining and reclamation operations within 
the State are to be regulated by the Director under the partial program 
and are not to be regulated under the remainder of the State program 
that continues in effect.



Sec. 736.22  Contents of a Federal program.

    (a) In promulgating or revising any Federal program for a State, the 
Director shall--
    (1) Consider the nature of that State's soils, topography, climate, 
and biological, chemical, geological, hydrological, agronomic, and other 
relevant physical conditions;
    (2) Include any provisions that are necessary to implement the 
requirements of the Endangered Species Act of 1973, as amended (16 
U.S.C. 531 et seq.), the Fish and Wildlife Coordination Act, as amended 
(16 U.S.C. 661-666c), the National Historic and Preservation Act of 1966 
(16 U.S.C. 470), the Archaeological and Historic Preservation Act of 
1974 (16 U.S.C. 469a), and other relevant Federal laws imposing duties 
upon the Secretary; and
    (3) Include, if required pursuant to 30 CFR 736.23, any performance 
standards for the regulation of coal exploration and surface coal mining 
and reclamation operations more stringent than those otherwise provided 
for by this chapter and the Act.
    (b)(1) Any Federal program for a State, including appropriate 
portions of a partial Federal program which is promulgated or revised by 
the Director, shall provide for Federal regulation of coal exploration 
and surface coal mining and reclamation operations on non-Federal and 
non-Indian lands within the State in accordance with the requirements of 
the Act and this Chapter, including, at a minimum, the following 
provisions: Parts 700, 701, 707, 761, 762, 764, 842, 843, 845, 
subchapters G, J, K, and M.
    (2) An exception to these requirements may be made where there is 
exploration but no mining in the State. In such a case, the Federal 
program which is promulgated must regulate coal exploration, but not 
mining, and shall include, at a minimum, the applicable sections of the 
following provisions: Parts 700, 701, 761, 762, 764, 772, 773, 775, 815, 
842, 843 and 845.
    (c) For the purpose of avoiding duplication, the Federal program 
shall include a process for coordinating the review and issuance of 
permits for surface coal mining and reclamation operations under the 
Federal program with any other Federal, State, or local planning or 
permit process applicable to the operations in the jurisdiction 
involved, including, but not limited to--
    (1) The Clean Air Act, as amended (42 U.S.C. 7401 et seq.); Clean 
Water Act, as amended (30 U.S.C. 1251 et seq.); Resource Conservation 
and Recovery Act (42 U.S.C. 3251 et seq.); and
    (2) Plans approved by the Administrator of the U.S. Environmental 
Protection Agency under sections 208 or 303(c) of the Clean Water Act, 
as amended (33 U.S.C. 1288, 1313(c)).

[44 FR 15329, Mar. 13, 1979, as amended at 47 FR 26367, June 17, 1982; 
48 FR 44779, Sept. 30, 1983]



Sec. 736.23  Federal program effect on State law or regulations.

    (a) Whenever a Federal program is promulgated or revised for a 
State, any statutes or regulations of the State regulating coal 
exploration or surface coal mining and reclamation operations subject to 
the Act shall be preempted and superseded by the Federal program insofar 
as they are inconsistent with the requirements of the

[[Page 151]]

Act and the Federal program. In promulgating or revising a Federal 
program for a State, the Director shall set forth in the Federal 
Register any State statute or regulation which is preempted and 
superseded by the Federal program.
    (b) The provision of any State statute or regulation which provides 
for more stringent land use and environmental control and regulation of 
coal exploration or surface coal mining and reclamation operations than 
do the provisions of the Act or any regulation issued under the Act 
shall not be preempted and superseded by the Director and shall be 
incorporated into the Federal program for the State.

[44 FR 15329, Mar. 13, 1979, as amended at 47 FR 26367, June 17, 1982]



Sec. 736.24  Federal program effect on State funding.

    (a) After the withdrawal of a State program and the promulgation and 
implementation of a complete Federal program for a State and extending 
until approval of a new State program, the Director shall not--
    (1) Approve, fund or continue to fund a State abandoned mine 
reclamation program, under section 405(c) of the Act and 30 CFR 884.14, 
884.15, 884.16 and 886.18; or,
    (2) Make any grants to assist the State in administering and 
enforcing State programs under the Act and 30 CFR 735.11 and 735.12.
    (b) After the withdrawal of a State program in part and the 
promulgation and implementation of a partial Federal program for a State 
and extending until the approval of a complete State program the 
Director shall not--
    (1) Approve, fund or continue to fund a State abandoned mine 
reclamation program, under section 405(c) of the Act and 30 CFR 884.14, 
884.15, 884.16 and 886.18, unless the Director finds, in writing, that 
discontinuation of funding would not be consistent with achieving the 
purposes of the Act, and
    (2) Make any grants to assist the State in administering and 
enforcing State programs under the Act and 30 CFR 735.12, unless the 
Director finds in writing that discontinuation of funding would not be 
consistent with achieving the purposes of the Act.



Sec. 736.25  Permit fees.

    (a) Applicability. An applicant for a new permit to conduct surface 
coal mining operations under a Federal program shall submit to OSM fees 
in the amounts set out in paragraph (d) of this section. For 
applications submitted prior to the effective date of this rule, fees 
shall apply only for stages of OSM review begun on or after the 
effective date. The applicant shall either submit all applicable fees 
with the permit application, or by stage of review as follows:
    (1) Administrative completeness review. An applicant who pays by 
stage of review shall submit the administrative completeness review fee 
with the permit application.
    (2) Technical review. Following receipt from OSM of a notice of 
administrative completeness, an applicant who pays by stage of review 
shall submit the technical review basic fee, plus the per-acre fee for 
each acre of disturbed area or fraction thereof to be included in the 
permit area.
    (3) Permit issuance. Following receipt from OSM of a notice of 
technical adequacy, an applicant who pays by stage of review shall 
submit the decision document fee.
    (b) Refund of fees. (1) Upon receipt of a written request from an 
applicant, OSM will refund any permit fees paid under this section for a 
permit application when OSM denies the permit:
    (i) On the basis of information concerning endangered or threatened 
species or their critical habitats or information. concerning cultural 
or historical resources, where such information was not available prior 
to submission of the permit application;
    (ii) Because subsequent to submittal of a permit application, the 
lands contained in the permit application are declared unsuitable for 
mining under subchapter F of this chapter; or
    (iii) Because subsequent to submittal of a permit application, the 
applicant is denied valid existing rights to mine under part 761 of this 
chapter where such rights are required for surface coal mining 
operations on the lands contained in the permit application.

[[Page 152]]

    (2) An applicant may file a written request for withdrawal of a 
permit application and a refund of fees in accordance with paragraph 
(b)(3) of this section.
    (3) OSM will, upon receipt of written request for withdrawal of a 
permit application, cease processing of that application. If requested, 
OSM will refund fees paid by the applicant for the withdrawn application 
as follows:
    (i) Any fees for a stage of OSM review not yet begun will be 
refunded;
    (ii) Where technical review has begun, partial refund will be made 
of any technical review fee amounts remaining after deduction of actual 
OSM costs incurred for that technical review. Costs to process the 
withdrawal may also be deducted.
    (4) No interest will be paid on refunded fees.
    (c) Form of payment. All fees due under this section shall be 
submitted to OSM by the applicant in the form of a certified check, bank 
draft or money order, payable to Office of Surface Mining.
    (d) Fee schedule for a new permit.

Administrative completeness review.......  $250.00
Technical review:
  Basic fee..............................  1350.00
Fee per acre of disturbed area in permit
 area:
  First 1,000 acres......................  13.50/acre
  Second 1,000 acres.....................  6.00/acre
  Third 1,000 acres......................  4.00/acre
  Additional acres.......................  3.00/acre
Decision Document........................  2000.00
 


[55 FR 29548, July 19, 1990]

[[Page 153]]



                   SUBCHAPTER D_FEDERAL LANDS PROGRAM



PART 740_GENERAL REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION 

OPERATIONS ON FEDERAL LANDS--Table of Contents



Sec.
740.1 Scope and purpose.
740.4 Responsibilities.
740.5 Definitions.
740.10 Information collection.
740.11 Applicability.
740.13 Permits.
740.15 Bonds on Federal lands.
740.17 Inspection, enforcement and civil penalties.
740.19 Performance standards.

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

    Source: 48 FR 6935, Feb. 16, 1983, unless otherwise noted.



Sec. 740.1  Scope and purpose.

    This part provides for the regulation of surface coal mining and 
reclamation operations on Federal lands.



Sec. 740.4  Responsibilities.

    (a) The Secretary is responsible for:
    (1) Approval, disapproval or conditional approval of mining plans 
with respect to lands containing leased Federal coal and of 
modifications thereto, in accordance with the Mineral Leasing Act of 
1920, as amended, 30 U.S.C. 181 et seq.;
    (2) Execution, modification or termination of State-Federal 
cooperative agreements in accordance with part 745 of this chapter;
    (3) Designation of areas of Federal lands as unsuitable for all or 
certain types of surface coal mining and reclamation operations, or 
termination of such designations, in accordance with part 769 of this 
chapter;
    (4) Decisions on requests to determine whether a person possesses 
valid existing rights to conduct surface coal mining operations on 
Federal lands within the areas specified in Sec. 761.11(a) and (b) of 
this chapter; and
    (5) Issuance of findings concerning whether there are significant 
recreational, timber, economic, or other values that may be incompatible 
with surface coal mining operations on Federal lands within a national 
forest, as specified in Sec. 761.11(b) of this chapter.
    (b) OSM is responsible for:
    (1) Providing a decision document recommending to the Secretary 
approval, disapproval or conditional approval of mining plans and of 
modifications thereto;
    (2) Approval of experimental practices on Federal lands;
    (3) Inspection, enforcement and civil penalties with respect to 
surface coal mining and reclamation operations on Federal lands except 
as provided in paragraph (c)(5) of this section;
    (4) Processing citizen requests for Federal inspections on Federal 
lands in accordance with parts 842, 843 and 845 of this chapter; and
    (5) Overseeing the State regulatory authority's administration and 
enforcement of the State program on Federal lands pursuant to the terms 
of any cooperative agreement.
    (c) The following responsibilities of OSM may be delegated to a 
State regulatory authority under a cooperative agreement:
    (1) Review and approval, conditional approval of disapproval or 
permit applications for surface coal mining and reclamation operations 
on Federal lands, revisions or renewals thereof, and applications for 
the transfer, sale or assignment of such permits;
    (2) Consultation with and obtaining the consent, as necessary, of 
the Federal land management agency with respect to post-mining land use 
and to any special requirements necessary to protect non-coal resources 
of the areas affected by surface coal mining and reclamation operations;
    (3) Consultation with and obtaining the consent, as necessary, of 
the Bureau of Land Management with respect to requirements relating to 
the development, production and recovery of mineral resources on lands 
affected by surface coal mining and reclamation operations involving 
leased Federal coal pursuant to 43 CFR Group 3400;
    (4) Approval and release of performance bonds, liability insurance 
and, as applicable, Federal lessee protection bonds required for surface 
coal mining

[[Page 154]]

and reclamation operations on Federal lands. Approval and release of 
Federal lessee protection bonds requires the concurrence of the Federal 
land management agency;
    (5) Responsibilities of the regulatory authority with respect to 
inspection, enforcement and civil penalty activities for (i) exploration 
operations not subject to 43 CFR Group 3400, and (ii) surface coal 
mining and reclamation operations on Federal lands;
    (6) Review and approval of exploration operations not subject to the 
requirements of 43 CFR Group 3400; and
    (7) Preparation of documentation to comply with the requirements of 
the National Environmental Policy Act (42 U.S.C. 4321 et seq.), except, 
OSM continues to be responsible for:
    (i) Determining the scope, content and format and ensuring the 
objectivity of NEPA compliance documents;
    (ii) Making the determination of whether or not the preparation of 
an environmental impact statement is required.
    (iii) Notifying and soliciting views of other State and Federal 
agencies, as appropriate, on the environmental effects of the proposed 
action;
    (iv) Publishing and distributing draft and final NEPA compliance 
documents;
    (v) Making policy responses to comments on draft NEPA compliance 
documents;
    (vi) Independently evaluating NEPA compliance documents; and
    (vii) Adopting NEPA compliance documents and determining Federal 
actions to be taken on alternatives presented in such documents.
    (d) The Bureau of Land Management is responsible for:
    (1) Receiving and approving exploration plans pursuant to 43 CFR 
Group 3400;
    (2) Inspection, enforcement and civil penalties with respect to the 
terms and conditions of coal exploration licenses issued pursuant to 43 
CFR Group 3400;
    (3) Inspection, enforcement and civil penalties with respect to the 
terms and conditions of exploration operations subject to 43 CFR Group 
3400;
    (4) Reviewing the resource recovery and protection plan and 
modifications thereto, as required by 43 CFR Group 3400 and recommending 
to the Secretary approval, disapproval or conditional approval of the 
resource recovery and protection plan;
    (5) Inspection, enforcement and civil penalties with respect to the 
recovery and protection of the coal resource as required by 43 CFR Group 
3400;
    (6) Protecting mineral resources not included in the coal lease;
    (7) Issuance of exploration licenses for Federal coal subject to the 
requirements of 43 CFR Group 3400;
    (8) Issuance of leases and licenses to mine Federal coal subject to 
the requirements of 43 CFR Group 3400; and
    (9) Issuance, readjustment, modification, termination, cancellation, 
and approval of transfers of Federal coal leases pursuant to the Mineral 
Leasing Act and the Mineral Leasing Act for Acquired Lands of 1947, as 
amended, 30 U.S.C. 351 et seq.
    (e) The Federal land management agency is responsible for:
    (1) Determining post-mining land uses;
    (2) Protection of non-mineral resources;
    (3) Requiring such conditions as may be appropriate to regulate 
surface coal mining and reclamation operations under other provisions of 
law applicable to such lands under its jurisdiction; and
    (4) Where land containing leased Federal coal is under the surface 
jurisdiction of a Federal agency other than the Department, concur in 
the terms of the mining plan approval.

[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983; 
55 FR 9401, Mar. 13, 1990; 64 FR 70830, Dec. 17, 1999]



Sec. 740.5  Definitions.

    (a) As used in this subchapter, the term:
    Authorized officer means any person authorized to take official 
action on behalf of a Federal agency that has administrative 
jurisdiction over Federal lands.
    Coal lease means a Federal coal lease or license issued by the 
Bureau of Land Management pursuant to the Mineral Leasing Act and the 
Federal Acquired Lands Leasing Act of 1947 (30 U.S.C. 351 et seq.).

[[Page 155]]

    Cooperative agreement means a cooperative agreement entered into in 
accordance with section 523(c) of the Act and part 745 of this chapter.
    Federal land management agency means a Federal agency having 
administrative jurisdiction over the surface of Federal lands that are 
subject to these regulations.
    Federal lease bond means the bond or equivalent security required by 
43 CFR part 3400 to assure compliance with the terms and conditions of a 
Federal coal lease.
    Federal lessee protection bond means a bond payable to the United 
States or the State, whichever is applicable, for use and benefit of a 
permittee or lessee of the surface lands to secure payment of any 
damages to crops or tangible improvements on Federal lands, pursuant to 
section 715 of the Act.
    Lease terms, conditions and stipulations means all of the standard 
provisions of a Federal coal lease, including provisions relating to 
lease duration, fees, rentals, royalties, lease bond, production and 
recordkeeping requirements, and lessee rights of assignment, extension, 
renewal, termination and expiration, and site-specific requirements 
included in Federal coal leases in addition to other terms and 
conditions which relate to protection of the environment and of human, 
natural and mineral resources.
    Leased Federal coal means coal leased by the United States pursuant 
to 43 CFR part 3400, except mineral interests in coal on Indian lands.
    Mineral Leasing Act or MLA means the Mineral Leasing Act of 1920, as 
amended, 30 U.S.C. 181, et seq.
    Mining plan means the plan for mining leased Federal coal required 
by the Mineral Leasing Act.
    Permit application package means a proposal to conduct surface coal 
mining and reclamation operations on Federal lands, including an 
application for a permit, permit revision or permit renewal, all the 
information required by the Act, this subchapter, the applicable State 
program, any applicable cooperative agreement and all other applicable 
laws and regulations including, with respect to leased Federal coal, the 
Mineral Leasing Act and its implementing regulations.
    Regulatory authority means the State regulatory authority pursuant 
to a cooperative agreement approved under part 745 of this chapter or, 
in the absence of a cooperative agreement, OSM.
    TVA-owned lands means land owned by the United States and entrusted 
to or managed by the Tennessee Valley Authority.
    (b) The following terms shall have meanings as set forth in 43 CFR 
parts 3400: Exploration; exploration plan; maximum economic recovery; 
method of operation; mine; and resource recovery and protection plan.

[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983]



Sec. 740.10  Information collection.

    (a) In accordance with 44 U.S.C. 3501 et seq., the Office of 
Management and Budget (OMB) has approved the information collection 
requirements of this part. The OMB clearance number is 1029-0027. This 
information is needed to implement section 523 of the Act, which governs 
surface coal mining operations on Federal lands. Persons intending to 
conduct such operations must respond to obtain a benefit.
    (b) OSM estimates that the public reporting burden for this part 
will average 26 hours per respondent, including time spent reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding this burden estimate or any other 
aspect of these information collection requirements, including 
suggestions for reducing the burden, to the Office of Surface Mining 
Reclamation and Enforcement, Information Collection Clearance Officer, 
1951 Constitution Avenue, NW, Washington, DC 20240; and the Office of 
Management and Budget, Office of Information and Regulatory Affairs, 
Attention: Interior Desk Officer, 725 17th Street, N.W, Washington, DC 
20503. Please refer to OMB Control Number 1029-0027 in any 
correspondence.

[64 FR 70831, Dec. 17, 1999]

[[Page 156]]



Sec. 740.11  Applicability.

    (a) Except as provided in paragraph (g) of this section, both this 
subchapter and the pertinent State or Federal regulatory program in 
subchapter T of this chapter apply to:
    (1) Coal exploration operations on Federal lands not subject to 43 
CFR part 3400, and
    (2) Surface coal mining and reclamation operations taking place on 
any Federal lands as defined in Sec. 700.5 of this chapter, and lands 
(except Indian lands) over leased or unleased Federal minerals.
    (b) Where OSM is the regulatory authority, references in the State 
program to the State or an agency or official of the State (with respect 
to functions of the State acting as regulatory authority) shall be 
construed as referring to OSM.
    (c) Where the Secretary and a State have entered into a cooperative 
agreement, the cooperative agreement shall delineate the 
responsibilities of the Secretary and the State with respect to the 
administration of the regulatory program and this subchapter.
    (d) Nothing in this subchapter shall affect in any way the authority 
of the Secretary or any Federal land management agency to include in any 
lease, license, permit, contract, or other instrument such conditions as 
may be appropriate to regulate surface coal mining and reclamation 
operations under provisions of law other than the Act on land under 
their jurisdiction.
    (e) This subchapter shall not apply to surface coal mining and 
reclamation operations within a State prior to approval or promulgation 
of a regulatory program for the State.
    (f) Where coal exploration or surface coal mining and reclamation 
operations within a State are on Federal lands and where no State or 
Federal program has been approved for the State, this subchapter shall 
apply in that State upon the effective date of these regulations.
    (g) The definition of valid existing rights in Sec. 761.5 of this 
chapter applies to any decision on a request for a determination of 
valid existing rights to conduct surface coal mining operations on the 
lands specified in Sec. 761.11(a) and (b) of this chapter.

[48 FR 6935, Feb. 16, 1983; 48 FR 13985, Apr. 1, 1983, as amended at 48 
FR 44779, Sept. 30, 1983; 55 FR 9402, Mar. 13, 1990; 64 FR 70831, Dec. 
17, 1999; 75 FR 60275, Sept. 29, 2010]



Sec. 740.13  Permits.

    (a) General requirements. (1) No person shall conduct surface coal 
mining operations on lands subject to this part unless that person has 
first obtained a permit issued pursuant to the regulatory program and 
this part.
    (2) Every person conducting surface coal mining and reclamation 
operations on lands subject to this part shall comply with the terms and 
conditions of the permit and the lease or license, the Act, this 
subchapter, the regulatory program and all other applicable State and 
Federal laws and regulations.
    (3) Surface coal mining operations authorized under the initial 
regulatory program or 43 CFR parts 3400, as applicable, may be conducted 
beyond the eight-month period prescribed in the applicable regulatory 
program if all of the following conditions are present:
    (i) A timely and administratively complete application for a permit 
to conduct those operations under this part has been made to the 
regulatory authority in accordance with the provisions of this part and 
the applicable regulatory program;
    (ii) The regulatory authority has not yet rendered a final decision 
with respect to the permit application; and
    (iii) Those operations are conducted in compliance with all terms 
and conditions of the initial regulatory program approval or permit, the 
requirements of the Act. 30 CFR chapter VII, subchapter B or 43 CFR 
parts 3400, as applicable, applicable State laws and regulations, and 
the requirements of the applicable lease or license.
    (b) Permit application package. (1) Each application for a permit, 
or permit revision or renewal thereof to conduct surface coal mining and 
reclamation operations on lands subject to this part shall be 
accompanied by a fee

[[Page 157]]

made payable to the regulatory authority. The amount of the fee shall be 
determined in accordance with the permit fee criteria of the applicable 
regulatory program.
    (2) Unless specified otherwise by the regulatory authority, seven 
copies of the complete permit application package shall be filed with 
the regulatory authority.
    (3) Each permit application package shall include:
    (i) The information required for a permit application or for an 
application for revision or renewal of a permit under the applicable 
regulatory program;
    (ii) The resource recovery and protection plan required by 43 CFR 
parts 3400 for operations on lands containing leased Federal coal; and
    (iii) Where OSM is the regulatory authority or where the proposed 
operations are on lands containing leased Federal coal, the following 
supplemental information to ensure compliance with Federal laws and 
regulations other than the Act:
    (A) A description of the affected area of the proposed surface coal 
mining and reclamation operation with respect to: (1) Increases in 
employment, population and revenues to public and private entities, and 
(2) the ability of public and private entities to provide goods and 
services necessary to support surface coal mining and reclamation 
operations.
    (B) An evaluation of impacts to the scenic and aesthetic resources, 
including noise on the surrounding area, due to the proposed surface 
coal mining and reclamation operation.
    (C) A statement, including maps and ownership data as appropriate, 
of any cultural or historical sits listed on the National Register of 
Historic Places within the affected area of the proposed surface coal 
mining and reclamation operation.
    (D) A statement of the classes of properties of potential 
significance within the disturbed area, and a plan for the 
identification and treatment, in accordance with 36 CFR part 800, of 
properties significant and listed or eligible for listing on the 
National Register of Historic Places within the disturbed area of the 
proposed surface coal mining and reclamation operation.
    (E) A description of the probable changes in air quality resulting 
from the mining operation and any necessary measures to comply with 
prevention of significant deterioration limitations, State 
Implementation Plans, or other Federal or State laws for air quality 
protection.
    (F) A description of the location, acreage and condition of 
important habitats of selected indicator species located within the 
affected area of the proposed surface coal mining and reclamation 
operation.
    (G) A description of active and inactive nests and prey areas of any 
Bald or Golden eagles located within the affected area of the proposed 
surface coal mining and reclamation operations.
    (H) A description of all threatened and endangered species and their 
critical habitats located within the affected area of the proposed 
surface coal mining and reclamation operations.
    (4) Where the surface of the Federal lands is subject to a lease or 
permit issued by the Federal government to a person other than the 
applicant, the permit application package shall contain information 
sufficient to demonstrate compliance with the requirements of Sec. 
740.15(c)(1). This requirement shall not apply to TVA-owned lands.
    (c) Permit review and processing. Applications for permits, permit 
revisions or renewals thereof to conduct surface coal mining and 
reclamation operations on lands subject to this part shall be reviewed 
and processed in accordance with the requirements of the applicable 
regulatory program, subject to the following additional requirements:
    (1) Permit terms and conditions. Permits shall include, as 
applicable, terms and conditions required by the lease issued pursuant 
to the Mineral Leasing Act and by other applicable Federal laws and 
regulations.
    (2) Criteria for permit approval or denial. The regulatory authority 
shall not approve an application for a permit, or permit revision or 
renewal thereof for surface coal mining and reclamation operations on 
lands subject to this part unless the application is in accordance with 
the requirements of

[[Page 158]]

the applicable regulatory program and this part or a cooperative 
agreement, as applicable.
    (3) Public participation in permit review process. Where public 
hearings were held and determinations made under section 2(a)(3) (A), 
(B) and (C) of the Mineral Leasing Act (30 U.S.C. 201(a)(3) (A), (B) and 
(C)), such hearings may be made a part of the record of each public 
hearing on a permit application held pursuant to the requirements of the 
applicable regulatory program and this part. Matters covered at such 
hearings and determinations made at such hearings need not be 
readdressed.
    (4) Permit review processing for operations on lands administered by 
a Federal land management agency. Upon receipt of a permit application 
package or a proposed revision or renewal of an approved permit that 
involves surface coal mining and reclamation operations on lands 
administered by an agency of the Federal Government, the regulatory 
authority shall transmit a copy of the complete permit application 
package, or proposed revision or renewal thereof, to the Federal land 
management agency, with a request for review and comment.
    (5) Consultation with other Federal agencies. Prior to approving or 
disapproving a permit, permit revision or renewal thereof, the 
regulatory authority shall consider the comments of the Federal land 
management agency and include these comments in the record of permit 
decisions.
    (6) Permit processing schedule. The regulatory authority shall 
process the permit application package within the time schedule 
established by the applicable regulatory program, except that the 
schedule may be extended if necessary to ensure compliance with Federal 
laws and regulations other than the Act.
    (7) Determination of operator compliance with the Act. Where OSM is 
the regulatory authority, it shall afford the applicant or operator an 
opportunity for an adjudicatory hearing as provided in 43 CFR part 4 
prior to a final determination on whether the applicant, or the operator 
specified in the application, controls or has controlled mining 
operations with a demonstrated pattern of willful violations of the Act 
of such nature and duration and with such resulting irreparable damage 
to the environment as to indicate an intent not to comply with the 
provisions of the Act.
    (8) Administrative review of decisions on permit applications. Where 
OSM is the regulatory authority, the final decision on a permit 
application is subject to an appeal to the Department's Office of 
Hearings and Appeals as provided in part 775 of this chapter. Where the 
State is the regulatory authority under a cooperative agreement, the 
final decision on a permit application is subject to administrative 
review as provided under the approved State program.
    (9) Bonds and insurance required for issuance of permits. After the 
approval of an application for a new or revised permit or for renewal of 
an existing permit, but prior to issuance of such permit, the applicant/
permittee shall file with the regulatory authority: (i) A performance 
bond which meets the requirements of the applicable regulatory program; 
(ii) proof of liability insurance in accordance with the applicable 
regulatory program; and (iii) where required, evidence of the execution 
of a Federal lessee protection bond. Bonds required to be filed with OSM 
shall be in a form required by OSM and made payable to the United 
States.
    (d) Review of permit revisions. (1) Where the State is the 
regulatory authority for surface coal mining and reclamation operations 
on lands subject to this subchapter, it shall inform OSM of each request 
for a permit revision with respect to operations on lands containing 
leased Federal coal.
    (2) OSM shall review each permit revision in consultation with the 
Bureau of Land Management and the appropriate Federal land management 
agency to determine whether the permit revision constitutes a mining 
plan modification requiring the Secretary's approval under Sec. 746.18 
of this chapter.
    (3) The regulatory authority shall consult with the Federal land 
management agency to determine whether any permit revision will 
adversely affect Federal resources other than coal and whether the 
revision is consistent with that agency's land use plans for other

[[Page 159]]

Federal laws, regulations and executive orders for which it is 
responsible.
    (e) Transfer, assignment or sale of rights. (1) The regulatory 
authority, before approving or disapproving an application for transfer, 
assignment or sale of rights granted under a permit issued pursuant to 
this subchapter, shall consult with the appropriate Federal land 
management agency and the Bureau of Land Management, as applicable.
    (2) Approval of a transfer, assignment or sale of rights granted 
under a permit issued pursuant to this subchapter shall not be construed 
to constitute a transfer or assignment of leasehold interests. Leasehold 
interests may be transferred or assigned only in accordance with 43 CFR 
part 3453.
    (f) Suspension or revocation of permits. (1) A permit to conduct 
surface coal mining and reclamation operations on Federal lands may be 
suspended or revoked by the regulatory authority in accordance with part 
843 of this chapter and the applicable regulatory program.
    (2) If a permit to conduct surface coal mining and reclamation 
operations on lands containing leased Federal coal is suspended or 
revoked, the regulatory authority shall notify the Bureau of Land 
Management so that the Bureau of Land Management can determine whether 
action should be taken to cancel the Federal lease. This section does 
not release the Federal lessee from the diligent development or 
continued operation requirements of 43 CFR parts 3400.

[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983; 
54 FR 13822, Apr. 5, 1989]



Sec. 740.15  Bonds on Federal lands.

    (a) Federal lease bonds. (1) Each holder of a Federal coal lease 
that is covered by a Federal lease bond required under 43 CFR part 3474 
may apply to the authorized officer for release of liability for that 
portion of the Federal lease bond that covers reclamation requirements.
    (2) The authorized officer may release the liability for that 
portion of the Federal lease bond that covers reclamation requirements 
if:
    (i) The lessee has secured a suitable performance bond covering the 
permit area under this part;
    (ii) There are no pending actions or unresolved claims against 
existing bonds; and
    (iii) The authorized officer has received concurrence from OSM and 
the Bureau of Land Management.
    (b) Performance bonds. Where the State is the regulatory authority 
under a cooperative agreement, the performance bonds required for 
operations on Federal lands shall be made payable to the United States 
and the State. Where OSM is the regulatory authority, such bonds shall 
be payable only to the United States.
    (c) Federal lessee protection bonds. (1) Where leased Federal coal 
is to be mined and the surface of the land is subject to a lease or 
permit issued by the United States for purposes other than surface coal 
mining, the applicant for a mining permit, if unable to obtain the 
written consent of the permittee or lessee of the surface to enter and 
commence surface coal mining operations, shall submit to the regulatory 
authority with his application evidence of execution of a bond or 
undertaking which meets the requirements of this section. The Federal 
lessee protection bond is in addition to the performance bond required 
by a regulatory program. This section does not apply to permits or 
licenses for the use of the surface that do not convey to the permittee 
or licensee the right of transfer, sale or consent to other uses.
    (2) The bond shall be payable to the United States and, as 
applicable, the State for the use and benefit of the permittee or lessee 
of the surface lands involved.
    (3) The bond shall secure payment to the surface estate for any 
damage which the surface coal mining and reclamation operation causes to 
the crops or tangible improvements of the permittee or lessee of the 
surface lands.
    (4) The amount of the bond shall be determined either by the 
applicant and the Federal lessee or permittee or as determined in an 
action brought against the person conducting surface coal mining and 
reclamation operations or upon the bond in a court of competent 
jurisdiction.

[[Page 160]]

    (d) Release of bonds. (1) A Federal lease bond may be released upon 
satisfactory compliance with all applicable requirements of 43 CFR Group 
3400 and after the release is concurred in by the Bureau of Land 
Management.
    (2) A Federal lessee protection bond shall be released upon the 
written consent of the permittee or lessee.
    (3) Where surface coal mining and reclamation operations are subject 
to an approved mining plan, a performance bond shall be released by the 
State after the release is concurred in by OSM.

[48 FR 6935, Feb. 16, 1983; 48 FR 13985, Apr. 1, 1983, as amended at 48 
FR 44779, Sept. 30, 1983; 55 FR 9402, Mar. 13, 1990]



Sec. 740.17  Inspection, enforcement and civil penalties.

    (a) General requirements. (1) Where OSM is the regulatory authority, 
parts 840, 842, 843 and 845 of this chapter shall govern its inspection, 
enforcement and civil penalty activities with respect to surface coal 
mining and reclamation operations on Federal lands.
    (2) Where the State is the regulatory authority under a cooperative 
agreement, the State program shall govern inspection, enforcement and 
civil penalty activities by the regulatory authority with respect to 
surface coal mining and reclamation operations on Federal lands, while 
the requirements of part 842, 843 and 845 of this chapter shall govern 
OSM inspection, enforcement and civil penalty activities conducted in 
oversight of the State program.
    (3) The requirements of this section shall not apply to coal 
exploration on Federal lands subject to the requirements of 43 CFR parts 
3400.
    (b) Right of entry. (1) Persons engaging in coal exploration or 
surface coal mining and reclamation operations on Federal lands shall 
provide access for any authorized officer of OSM, the regulatory 
authority, and, as applicable, the Bureau of Land Management or the 
appropriate Federal land management agency to inspect the operations, 
without advance notice or a search warrant and upon presentation of 
appropriate credentials, to determine whether the operations are in 
compliance with all applicable laws, regulations, notices and orders, 
and terms and conditions of the permit.
    (2) Any authorized representative of the regulatory authority and, 
as applicable, the Bureau of Land Management may, at reasonable times 
and without delay, have access to and copy any records and inspect any 
monitoring equipment or method of operation required under the Act, this 
subchapter and the permit, lease, license or mining plan in accordance 
with paragraph (a) of this section.
    (3) No search warrant shall be required with respect to any activity 
under paragraph (a) or (b) of this section, except entry into a building 
without consent of the person in control of the building.
    (c) Inspections. Inspections shall, to the extent practical, be 
conducted jointly if more than one government agency is involved. The 
regulatory authority shall coordinate inspections by Federal agencies 
and may request the participation of representatives from other Federal 
agencies when necessary to ensure compliance with this subchapter and 
other applicable Federal laws, regulations and orders.

[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983]



Sec. 740.19  Performance standards.

    (a) Operations and reclamation. (1) Surface coal mining and 
reclamation operations on lands subject to this part shall be conducted 
in accordance with the performance standards of the applicable 
regulatory program.
    (2) Surface coal mining and reclamation operations on lands 
containing leased Federal coal shall be conducted in accordance with the 
requirements of the terms, conditions and stipulations of the lease 
issued under the Mineral Leasing Act and its implementing regulations in 
43 CFR parts 3400, as applicable, and the mining plan.
    (b) Completion of operations and abandonment. (1) Upon completion of 
operations, bonds shall be released in accordance with Sec. 740.15(d) 
of this chapter.
    (2) Where there is a Federal lease bond:
    (i) Not less than 30 days prior to permanent cessation or 
abandonment of surface coal mining and reclamation

[[Page 161]]

operations, the person conducting those operations shall submit to OSM, 
in duplicate, a notice of intention to cease or abandon those 
operations, with a statement of the number of acres affected by the 
operations, the extent and kind of reclamation accomplished and the 
structures and other facilities that are to be removed from or remain on 
the permit area.
    (ii) Upon receipt of this notice, the Bureau of Land Management and 
the appropriate Federal land management agency shall promptly make joint 
inspections to determine whether all operations have been completed in 
accordance with the requirements of 43 CFR parts 3400, the lease or 
licenses and the mining plan. Where all of these requirements have been 
complied with, the liability under the lease bond of the person 
conducting surface coal mining and reclamation operations shall be 
terminated.
    (3) Where OSM is the regulatory authority, public hearings held with 
respect to final abandonment and releases of the performance bonds shall 
be in accordance with 5 U.S.C. 554 and 43 CFR part 4.

[48 FR 6935, Feb. 16, 1983, as amended at 48 FR 44779, Sept. 30, 1983]



PART 745_STATE-FEDERAL COOPERATIVE AGREEMENTS--Table of Contents



Sec.
745.1 Scope.
745.10 Information collection.
745.11 Application and agreement.
745.12 Terms.
745.13 Authority reserved by the Secretary.
745.14 Amendments.
745.15 Termination.
745.16 Reinstatement.

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

    Source: 48 FR 6939, Feb. 16, 1983, unless otherwise noted.



Sec. 745.1  Scope.

    This part sets forth requirements for the development, approval and 
administration of cooperative agreements under section 523(c) of the 
Act.



Sec. 745.10  Information collection.

    (a) In accordance with 44 U.S.C. 3501 et seq., the Office of 
Management and Budget (OMB) has approved the information collection 
requirements of this part. The OMB clearance number is 1029-0092. This 
information is needed to implement section 523(c) of the Act, which 
allows States to regulate surface coal mining operations on Federal 
lands under certain conditions. States that desire to enter into 
cooperative agreements to do so must respond to obtain a benefit.
    (b) OSM estimates that the public reporting burden for this part 
will average 1,364 hours per respondent, including time spent reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding this burden estimate or any other 
aspect of these information collection requirements, including 
suggestions for reducing the burden, to the Office of Surface Mining 
Reclamation and Enforcement, Information Collection Clearance Officer, 
1951 Constitution Avenue, N.W., Washington, DC 20240; and the Office of 
Management and Budget, Office of Information and Regulatory Affairs, 
Attention: Interior Desk Officer, 725 17th Street, N.W., Washington, DC 
20503. Please refer to OMB Control Number 1029-0092 in any 
correspondence.

[64 FR 70831, Dec. 17, 1999]



Sec. 745.11  Application and agreement.

    (a) The Governor of any State may request that the Secretary enter 
into a cooperative agreement with the State, provided the State has an 
approved State regulatory program or has submitted a regulatory program 
for approval under part 731 of this chapter, and has or may have within 
the State surface coal mining and reclamation operations on Federal 
lands.
    (b) A request for a cooperative agreement shall be submitted in 
writing and, except to the extent previously submitted in the State 
program, shall include the following information:
    (1) Information sufficient for OSM to make findings in accordance 
with paragraph (f) of this section;
    (2) A proposed agreement consistent with the requirements of this 
part; and
    (3) A certification by the Attorney General or the chief legal 
officer of the

[[Page 162]]

State regulatory authority that no State statutory, regulatory or legal 
constraint exists which would preclude the State regulatory authority 
from fully carrying out the proposed cooperative agreement.
    (c) OSM shall publish a notice of the request and the full text of 
the terms of the proposed cooperative agreement as submitted or as 
subsequently modified by OSM and the State in the Federal Register as a 
proposed rule. A notice of the request and a summary of the terms of the 
proposed agreement shall also be published in a newspaper(s) of general 
circulation throughout the State. Both notices shall include:
    (1) The location at which a copy of the request submitted by the 
State may be obtained; and
    (2) A date, not less than 30 days after publication of the notices, 
before which members of the public may submit written comments on the 
request and the person to whom comments should be addressed.
    (d) A public hearing shall be held within the comment period in a 
suitable location in the State requesting the cooperative agreement. 
This hearing may be combined with public hearings required under part 
732 of this chapter for the Secretary's consideration of approval of a 
State program submission, if appropriate. The date, time and place of 
the public hearing(s) on the request will be published in the Federal 
Register not less than 15 days prior to the date of the hearing.
    (e) Before the expiration of the comment period, OSM shall consult 
with the Bureau of Land Management, Fish and Wildlife Service, and 
Federal land management agencies, as appropriate, with respect to the 
proposed cooperative agreement.
    (f) OSM shall recommend to the Secretary that a cooperative 
agreement be entered into with a State, if OSM finds that:
    (1) The State has an approved State regulatory program;
    (2) The State regulatory authority has sufficient budget, equipment 
and personnel to enforce fully its regulatory program on lands subject 
to this part in the State; and
    (3) The State has the legal authority to enter into the cooperative 
agreement.
    (g) The Secretary shall publish in the Federal Register his or her 
decision with respect to a request by a State to enter into a 
cooperative agreement and the reasons therefor and the full text of the 
cooperative agreement.



Sec. 745.12  Terms.

    Each cooperative agreement shall include:
    (a) Terms obligating the State regulatory authority to inspect all 
surface coal mining and reclamation operations on Federal lands in 
accordance with the State regulatory program and to enforce the State 
program on Federal lands;
    (b) A description of the powers and authority reserved by the 
Secretary, including, but not limited to, those specified under Sec. 
745.13;
    (c) Provisions for the administration and enforcement by OSM and the 
State of this subchapter so as to minimize overlap and duplication;
    (d) Provisions for regular reports by the State regulatory authority 
to OSM on the results of the State's implementation and administration 
of the cooperative agreement.
    (e) Terms requiring the State regulatory authority to maintain 
sufficient personnel and facilities to comply with the terms of the 
cooperative agreement, and to notify OSM of any substantial change in 
State statutes, regulations, funding, staff, or other changes which 
would affect the State's ability to carry out the terms of the 
cooperative agreement;
    (f) Terms for coordination among the State regulatory authority, the 
Federal land management agency, the Bureau of Land Management and OSM;
    (g) Terms obligating the State regulatory authority to--
    (1) Make available to OSM information on any action taken regarding 
any permit application for surface coal mining and reclamation 
operations on Federal lands; and
    (2) Where lands containing leased Federal coal are involved, provide 
OSM, in the form specified by OSM in

[[Page 163]]

consultation with the State, with written findings indicating that each 
permit application is in compliance with the terms of the regulatory 
program and a technical analysis of each permit application to assist 
OSM in meeting its responsibilities under other applicable Federal laws 
and regulations.



Sec. 745.13  Authority reserved by the Secretary.

    The Secretary shall not delegate to any State, nor shall any 
cooperative agreement under this part be construed to delegate to any 
State, authority to--
    (a) Designate Federal lands as unsuitable for surface coal mining 
under subchapter F of this chapter or terminate such designations;
    (b) Comply with the National Environmental Policy Act of 1969, as 
amended, 42 U.S.C. 4321 et seq., and Federal laws and regulations other 
than SMCRA;
    (c) Develop land use management plans for Federal lands where the 
surface estate is federally-owned;
    (d) Regulate non-coal mining activities on Federal lands;
    (e) Determine when, where, and how to lease Federal coal and how 
much to lease;
    (f) Develop terms for Federal coal leases, including any special 
terms relating to mining and reclamation procedures;
    (g) Evaluate Federal coal resources;
    (h) Establish royalties, rents, and bonuses charged in connection 
with Federal coal leases;
    (i) Approve mining plans or modifications thereto;
    (j) Enforce Federal lease terms, including diligent development and 
maximum economic recovery requirements;
    (k) Approve or determine post-mining land uses for Federal lands 
where the surface estate is federally-owned;
    (l) Release Federal lease bonds;
    (m) Evaluate the State's administration and enforcement of the 
approved State program and implementation of the cooperative agreement 
on Federal lands;
    (n) Comply with the inspection, enforcement and civil penalties 
requirements of parts 842 and 843 of this chapter except as provided 
under Sec. 740.4(c)(5) of this chapter;
    (o) Determine whether a person has valid existing rights to conduct 
surface coal mining operations on Federal lands within the areas 
specified in Sec. 761.11(a) and (b) of this chapter; or
    (p) Issue findings on whether there are significant recreational, 
timber, economic, or other values that may be incompatible with surface 
coal mining operations on Federal lands within a national forest, as 
specified in Sec. 761.11(b) of this chapter.

[48 FR 6939, Feb. 16, 1983, as amended at 64 FR 70831, Dec. 17, 1999]



Sec. 745.14  Amendments.

    A cooperative agreement which has been approved pursuant to Sec. 
745.11 may be amended by mutual agreement of the Secretary and the 
Governor of a State. Amendments shall be adopted by Federal rulemaking, 
in accordance with Sec. 745.11.



Sec. 745.15  Termination.

    (a) A cooperative agreement may be terminated by the State upon 
written notice to the Secretary, specifying the date upon which the 
cooperative agreement shall be terminated. The date of termination shall 
not be less than 90 days from the date of the notice.
    (b) A cooperative agreement may be terminated by the Secretary after 
giving notice to the State regulatory authority and affording the State 
regulatory authority and the public an opportunity for a public hearing 
and comment period, in accordance with the cooperative agreement, if the 
Secretary finds that:
    (1) The State regulatory authority has substantially failed to 
comply with the requirements of this subchapter, the State program, or 
the cooperative agreement, or
    (2) The State regulatory authority has failed to comply with any 
undertaking by the State in the cooperative agreement upon which 
approval of the State program, cooperative agreement, or grant by OSM 
for administration or enforcement of the State program or cooperative 
agreement was based.
    (c) A cooperative agreement shall terminate--

[[Page 164]]

    (1) When no longer authorized by Federal law or the applicable State 
laws and regulations; or
    (2) Upon termination or withdrawal of the Secretary's approval of 
the applicable State program.



Sec. 745.16  Reinstatement.

    (a) A State may apply for reinstatement of the cooperative agreement 
by providing written evidence to OSM that the State has remedied all 
defects for which the agreement was terminated and is fully capable of 
carrying out the cooperative agreement. Any reinstatement shall be by 
Federal rulemaking in accordance with Sec. 745.11.
    (b) OSM may recommend approval of the reinstatement to the Secretary 
if it finds that the State meets all the requirements for the initial 
approval of a cooperative agreement under this subchapter.
    (c) The Secretary may approve reinstatement of a cooperative 
agreement if the Secretary concurs in findings of OSM which recommended 
that approval.



PART 746_REVIEW AND APPROVAL OF MINING PLANS--Table of Contents



Sec.
746.1 Scope.
746.10 Information collection.
746.11 General requirements.
746.13 Decision document and recommendation on mining plan.
746.14 Approval, disapproval or conditional approval, of mining plan.
746.17 Term of approval.
746.18 Mining plan modification.

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

    Source: 48 FR 6941, Feb. 16, 1983, unless otherwise noted.



Sec. 746.1  Scope.

    This part provides the process and requirements for the review and 
approval, disapproval or conditional approval of mining plans on lands 
containing leased Federal coal.



Sec. 746.10  Information collection.

    The information collection requirements contained in this section 
have been approved by OSM of Management and Budget under 44 U.S.C. 3507 
and assigned clearance number 1029-0026. The information is being 
collected to determine compliance with section 523 of the Act (30 U.S.C. 
1273) and this part. The obligation to respond to the information 
collection requirements of this part is mandatory.



Sec. 746.11  General requirements.

    (a) No person shall conduct surface coal mining and reclamation 
operations on lands containing leased Federal coal until the Secretary 
has approved the mining plan.
    (b) Surface coal mining and reclamation operations on lands 
containing leased Federal coal shall be conducted in accordance with a 
permit issued in accordance with this subchapter, any lease terms and 
conditions, and the approved mining plan.



Sec. 746.13  Decision document and recommendation on mining plan.

    OSM shall prepare and submit to the Secretary a decision document 
recommending approval, disapproval or conditional approval of the mining 
plan to the Secretary. The recommendation shall be based, at a minimum, 
upon:
    (a) The permit application package, including the resource recovery 
and protection plan;
    (b) Information prepared in compliance with the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.;
    (c) Documentation assuring compliance with the applicable 
requirements of other Federal laws, regulations and executive orders 
other than the Act;
    (d) Comments and recommendations or concurrence of other Federal 
agencies, as applicable, and the public;
    (e) The findings and recommendations of the Bureau of Land 
Management with respect to the resource recovery and protection plan and 
other requirements of the lease and the Mineral Leasing Act;
    (f) The findings and recommendations of the regulatory authority 
with respect to the permit application and the State program; and
    (g) The findings and recommendations of OSM with respect to the 
additional requirements of this subchapter.

[[Page 165]]



Sec. 746.14  Approval, disapproval or conditional approval, of mining plan.

    The Secretary shall approve, disapprove or conditionally approve the 
mining plan in accordance with this part.



Sec. 746.17  Term of approval.

    (a) Each mining plan approval shall cover the operations for which a 
complete permit application package was submitted, unless otherwise 
indicated in the approval.
    (b) An approved mining plan shall remain in effect until modified, 
cancelled or withdrawn and shall be binding on any person conducting 
mining under the approved mining plan.



Sec. 746.18  Mining plan modification.

    (a) Mining plan modifications shall be approved by the Secretary.
    (b) The approval of mining plan modifications shall be in accordance 
with the procedures of this part for mining plan approval.
    (c) Surface coal mining and reclamation operations on lands 
containing leased Federal coal pursuant to a permit revision issued by 
the regulatory authority shall not commence until--
    (1) OSM determines that the permit revision does not constitute a 
mining plan modification under this section, or
    (2) If the permit revision constitutes a mining plan modification 
under this section, such modification has been approved by the 
Secretary.
    (d) Permit revisions constitute mining plan modifications if they 
meet any of the following criteria:
    (1) Any change in the mining plan which would affect the conditions 
of its approval pursuant to Federal law or regulation other than the 
Act;
    (2) Any change which would adversely affect the level of protection 
afforded any land, facility or place designated unsuitable for mining;
    (3) Any change in the location or amount of coal to be mined, except 
where such change is the result of:
    (i) A minor change in the amount of coal actually available for 
mining from the amount estimated; or
    (ii) An incidental boundary change;
    (4) Any change which would extend coal mining and reclamation 
operations onto leased Federal coal lands for the first time;
    (5) Any change which requires the preparation of an environmental 
impact statement under the National Environmental Policy Act or 1969, 42 
U.S.C. 4321 et seq.;
    (6) Any change in the mining operations and reclamation plan that 
would result in a change in the postmining land use where the surface is 
federally-owned.

[[Page 166]]



                    SUBCHAPTER E_INDIAN LANDS PROGRAM



PART 750_REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS ON 

INDIAN LANDS--Table of Contents



Sec.
750.1 Scope.
750.5 Definitions.
750.6 Responsibilities.
750.10 Information collection.
750.11 Permits.
750.12 Permit applications.
750.13 Small operator assistance.
750.14 Lands designated unsuitable for mining by Act of Congress.
750.15 Coal exploration.
750.16 Performance standards.
750.17 Bonding.
750.18 Inspection and enforcement.
750.19 Certification of blasters.
750.20 [Reserved]
750.21 Coal extraction incidental to the extraction of other minerals.
750.25 Permit fees.

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

    Source: 49 FR 38477, Sept. 28, 1984, unless otherwise noted.



Sec. 750.1  Scope.

    This subchapter provides for the regulation of surface coal mining 
and reclamation operations on Indian lands and constitutes the Federal 
program for Indian lands.



Sec. 750.5  Definitions.

    For purposes of regulating surface coal mining operations on Indian 
lands, the following terms, when used in this subchapter or in parts 
referenced by this subchapter, have the following meanings:
    BIA means the Bureau of Indian Affairs of the U.S. Department of the 
Interior.
    BLM means the Bureau of Land Management of the U.S. Department of 
the Interior.
    Federal program means the Federal program for Indian lands.
    Indian mineral owner means (1) any individual Indian or Alaska 
native who owns land or mineral interests in land the title to which is 
held in trust by the United States or is subject to a restriction 
against alienation imposed by the United States, or (2) any Indian 
tribe, band, native, pueblo, community, rancheria, colony, or other 
group which owns land or mineral interest in land the title to which is 
held in trust by the United States or is subject to a restriction 
against alienation imposed by the United States. This definition does 
not include owners of lands patented to a village or regional 
corporation pursuant to the Alaska Native Claims Settlement Act, Pub. L. 
92-203.
    Local government agencies means, in addition to county, city or 
township governments, Indian tribal governments.
    Minerals agreement means any joint venture, operating, production 
sharing, service, managerial, lease or other agreements, or any 
amendment, supplement to or modification of such agreement, providing 
for the exploration for, or extraction, processing, or the development 
of coal, or providing for the sale or other disposition of the 
production or products of such coal resources.
    MMS means the Minerals Management Service of the U.S. Department of 
the Interior.
    Regulatory authority means the Office of Surface Mining.



Sec. 750.6  Responsibilities.

    (a) OSM shall: (1) Be the regulatory authority on Indian lands;
    (2) After consultation with the Bureau of Indian Affairs and, as 
applicable, with the Bureau of Land Management, conditionally approve, 
approve, or disapprove applications for permits, permit renewals, or 
permit revisions for surface coal mining operations on Indian lands, and 
applications for the transfer, sale or assignment of such permit rights 
on Indian lands;
    (3) Conduct inspection and enforcement activities with respect to 
surface coal mining and reclamation operations on Indian lands;
    (4) Consult with the BIA and the affected tribe with respect to 
special requirements relating to the protection

[[Page 167]]

of non-coal resources of the area affected by surface coal mining and 
reclamation operations, and assure operator compliance with such special 
requirements;
    (5) Consult with the Bureau of Land Management concerning 
requirements relating to the development, production and recovery of 
mineral resources on Indian lands;
    (6) Approve environmental protection performance bonds and liability 
insurance required for surface coal mining and reclamation operations on 
Indian lands but not the production royalty bond; and
    (7) Ensure compliance with the requirements of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., with respect 
to permitting actions for surface coal mining and reclamation operations 
on Indian lands.
    (b) The Bureau of Land Management is responsible for: (1) Receiving, 
reviewing, and conditionally approving, approving or disapproving coal 
exploration plans and mining plans, as provided in 25 CFR Chapter I or 
in specific Indian mineral agreements;
    (2) Administering, and conducting inspection and enforcement for, 
coal exploration operations on Indian lands;
    (3) Administering mining contract, lease or mineral agreement terms 
and conditions, as provided for in 25 CFR Chapter I or in specific 
Indian mineral agreements; and
    (4) Administering and conducting inspections and enforcement of 
terms and conditions of contracts, leases or mineral agreements for coal 
mining operations, including production verification and inspection of 
operations for that purpose.
    (c) The Minerals Management Service is responsible for collecting 
and accounting for royalties and other income from Indian mineral 
agreements except for annual rentals.
    (d) The Bureau of Indian Affairs is responsible for: (1) Consulting 
directly with and providing representation for Indian mineral owners and 
other Indian land owners in matters relating to surface coal mining and 
reclamation operations on Indian lands;
    (2) After consultation with the affected tribe, reviewing and making 
recommendations to OSM concerning permit applications, renewals, 
revisions or transfers of permits, permit rights or performance bonds; 
and
    (3) After consultation with the affected tribe, reviewing mining 
plans and making recommendations to the Bureau of Land Management 
pursuant to 25 CFR 216.7.



Sec. 750.10  Information collection.

    The Office of Management and Budget has determined that the 
information collection requirements contained in 30 CFR part 750 do not 
require approval under the Paperwork Reduction Act.

[59 FR 43420, Aug. 23, 1994]



Sec. 750.11  Permits.

    (a) No person shall conduct surface coal mining operations on Indian 
lands after eight months following the effective date of this subchapter 
unless that person has first obtained a permit pursuant to this part.
    (b) Any person conducting surface coal mining and reclamation 
operations on lands subject to this part shall comply with the terms and 
conditions of the permit, the requirements of this subchapter, and the 
Act.
    (c) Surface coal mining operations authorized prior to the effective 
date of this subchapter may be conducted beyond the eight-month period 
specified in paragraph (a) of this section if the following conditions 
are present: (1) An application for a permit to conduct those operations 
under this part has been made within two months of the implementation of 
the Federal program for Indian lands;
    (2) OSM has not yet rendered an initial administrative decision 
approving or disapproving the permit application; and
    (3) Those operations are conducted in compliance with all terms and 
conditions of the lease or minerals agreement, the existing 
authorization to mine, the requirements of the Act, and the requirements 
of 25 CFR Chapter I.
    (d) Whenever surface coal mining and reclamation operations are 
proposed to include both Indian lands and non-Indian lands, OSM will use 
reasonable efforts to ensure that reviews of the permit applications 
will be conducted cooperatively and concurrently by OSM

[[Page 168]]

and the regulatory authority responsible for the non-Indian lands.

[49 FR 38477, Sept. 28, 1984, as amended at 54 FR 13822, Apr. 5, 1989]



Sec. 750.12  Permit applications.

    (a) Each application for a permit to conduct surface coal mining 
operations on lands subject to this part shall be accompanied by fees in 
accordance with Sec. 750.25 of this part.
    (b) Unless specified otherwise by the regulatory authority, each 
person submitting a permit application shall file no less than seven 
copies of the complete permit application package with OSM. OSM will 
ensure that the affected tribes, the Bureau of Indian Affairs, and when 
applicable, the Bureau of Land Management receive copies of the 
application.
    (c)(1) The following requirements of subchapter G of this chapter 
shall govern the processing of permit applications on Indian lands 
except as specified in paragraph (c)(2) or (c)(3) of this section.
    (i) Part 773;
    (ii) Part 774;
    (iii) Part 775;
    (iv) Part 777;
    (v) Part 778;
    (vi) Part 779;
    (vii) Part 780;
    (viii) Part 783;
    (ix) Part 784; and
    (x) Part 785;
    (2) The following provisions of subchapter G are not applicable to 
permitting on Indian lands:
    (i) Part 772;
    (ii) Sections 773.4, 773.15(c), 777.17;
    (iii) Section 778.16 (a) and (b); and
    (iv) Sections 785.11, 785.12;
    (3) Special requirements. (i) Approval of a transfer, assignment, or 
sale of rights granted under a permit shall not be construed as approval 
of a transfer or assignment of a leasehold interest. Leasehold interests 
may be transferred or assigned only in accordance with 25 CFR parts 211 
and 212.
    (ii) The following additional requirements are applicable to permit 
revisions:
    (A) Applications for revisions pursuant to Sec. 774.13(b) of this 
chapter shall contain the same information on the proposed revised 
operation as if the revised operation had been proposed as part of the 
initial operation permitted under this part.
    (B) OSM shall determine if the application for revision is complete 
and if the proposed revision is significant. OSM shall consider the 
following factors as well as other relevant factors in determining the 
significance of a proposed revision: (1) Changes in production or 
recoverability of the coal resource; (2) the environmental effects; (3) 
the public interest in the operation, or likely interest in the proposed 
revision; and (4) possible adverse impacts from the proposed revision on 
fish or wildlife, endangered species, bald or golden eagles or cultural 
resources.
    (C) Significant revisions shall be processed as if they are new 
applications in accordance with parts 773 and 775 of this chapter. Other 
revisions shall be reviewed to determine if the findings which were made 
in issuing the original permit are still valid.
    (iii) Any section in this chapter which provides for consultation 
with, or notification to, State and local governments shall be 
interpreted as requiring in like manner consultation with, or 
notification to, tribal governments.
    (d) The permit application package shall also contain:
    (1) The mining plan required to be submitted by 25 CFR 216.7 or 43 
CFR part 3480, as applicable.
    (2) The following information to assure compliance with Federal laws 
other than the Act:
    (i) The description of the proposed surface coal mining and 
reclamation operation with respect to: (A) Increases in employment, 
population, and revenues to public and private entities; and (B) the 
ability of public and private entities to provide goods and services 
necessary to support surface coal mining and reclamation operations.
    (ii) An evaluation of impacts to the scenic and aesthetic resources, 
including noise on the surrounding area, due to the proposed surface 
coal mining and reclamation operation.
    (iii) A statement, including maps and ownership data as appropriate, 
of any cultural or historical site listed on the National Register of 
Historic Places within the permit and adjacent areas of

[[Page 169]]

the proposed surface coal mining and reclamation operation.
    (iv) A statement of the classes of properties of potential 
significance within the disturbed area, and a plan for the 
identification and treatment, in accordance with 36 CFR part 800, of 
properties significant and listed, or eligible for listing, on the 
National Register of Historic Places within the permit area of the 
proposed surface coal mining and reclamation operation.
    (v) A description of compliance with Federal laws aimed at 
protecting cultural resources on Indian lands.
    (vi) A description of the probable changes in air quality resulting 
from the surface coal mining operation and any necessary measures to 
comply with prevention of significant deterioration limitations, or 
other Federal laws for air quality protection.
    (vii) A description of the location, acreage and condition of 
important habitats of selected indicator species located within the 
permit and adjacent areas of the proposed surface coal mining and 
reclamation operation.
    (viii) A description of active and inactive nests and prey areas of 
any bald or golden eagles located within the permit and adjacent areas 
of the proposed surface coal mining and reclamation operations.
    (ix) A description and special studies, if required, of all 
threatened and endangered species and their critical habitats located 
within the permit and adjacent areas of the proposed surface coal mining 
and reclamation operations.

[49 FR 38477, Sept. 28, 1984, as amended at 54 FR 22188, May 22, 1989; 
55 FR 29548, July 19, 1990; 65 FR 79663, Dec. 19, 2000]



Sec. 750.13  Small operator assistance.

    Part 795 of this chapter is applicable on Indian lands.



Sec. 750.14  Lands designated unsuitable for mining by Act of Congress.

    Part 761 of this chapter is applicable on Indian lands.



Sec. 750.15  Coal exploration.

    Coal exploration operations on Indian lands shall be conducted in 
accordance with 25 CFR part 216 and 43 CFR part 3480, whichever is 
applicable.



Sec. 750.16  Performance standards.

    After OSM issues a permit under this part, a person conducting 
surface coal mining operations on Indian lands shall do so in accordance 
with parts 816, 817, 819, 822, 823, 824, 827, and 828 of this chapter. 
Prior to that time, the person conducting surface coal mining and 
reclamation operations shall adhere to the performance standards of 30 
CFR chapter VII, subchapter B.

[49 FR 38477, Sept. 28, 1984, as amended at 59 FR 43420, Aug. 23, 1994]



Sec. 750.17  Bonding.

    Subchapter J of this title is applicable on Indian lands.



Sec. 750.18  Inspection and enforcement.

    (a) Parts 842, 843, 845 and 846 of this chapter and the hearings and 
appeals procedures of 43 CFR part 4 are applicable on Indian lands.
    (b) OSM shall furnish copies of notices and orders to mineral owners 
or surface owners on whose land the surface coal mining operation takes 
place. OSM may furnish copies of notices and orders to any other person 
having an interest in the surface coal mining and reclamation operation 
or the permit area.
    (c) BLM shall furnish copies of notices and orders to mineral owners 
or surface owners on whose land coal exploration operations take place 
and pursuant to 25 CFR 216.7 and 43 CFR part 3480, where applicable, to 
any mineral owner or surface owner, or to any person having an interest 
in the coal mining operation.
    (d) Whenever an authorized representative of the Secretary decides 
to conduct an inspection of any coal mining operations or any premises 
in which any records to be maintained are located, the appropriate 
representative of the local governing Indian tribe shall be notified and 
be invited to accompany the Secretary's representative on such an 
inspection.
    (e) No provision in this chapter shall be interpreted as replacing 
or superseding any other remedies of the Indian mineral owners, as set 
forth in a contract or otherwise available at law.
    (f) Appropriate officials of the local governing Indian tribe shall 
be notified

[[Page 170]]

of any hearings or conferences conducted regarding civil penalties and 
shall be invited to attend.

[49 FR 38477, Sept. 28, 1984, as amended at 53 FR 3675, Feb. 8, 1988]



Sec. 750.19  Certification of blasters.

    A person seeking to conduct blasting operations on Indian lands 
shall comply with the requirements of Sec. Sec. 816.61(c) and 817.61(c) 
and part 955 of this chapter.

[51 FR 19461, May 29, 1986]



Sec. 750.20  [Reserved]



Sec. 750.21  Coal extraction incidental to the extraction of other minerals.

    Part 702 of this chapter is applicable on Indian lands.

[54 FR 52123, Dec. 20, 1989]



Sec. 750.25  Permit fees.

    (a) Applicability. An applicant for a new permit to conduct surface 
coal mining operations on lands subject to this part shall submit to OSM 
fees in the amounts set out in paragraph (d) of this section. For 
applications submitted prior to the effective date of this rule, fees 
shall apply only for stages of OSM review begun on or after the 
effective date. The applicant shall either submit all applicable fees 
with the permit application, or by stage of review as follows:
    (1) Administrative completeness review. An applicant who pays by 
stage of review shall submit the administrative completeness review fee 
with the permit application.
    (2) Technical review. Following receipt from OSM of a notice of 
administrative completeness, an applicant who pays by stage of review 
shall submit the technical review basic fee, plus the per-acre fee for 
each acre of disturbed area or fraction thereof to be included in the 
permit area.
    (3) Permit issuance. Following receipt from OSM of a notice of 
technical adequacy, an applicant who pays by stage of review shall 
submit the decision document fee.
    (b) Refund of fees. (1) Upon receipt of a written request from an 
applicant, OSM will refund any permit fees paid under this section for a 
permit application when OSM denies the permit:
    (i) On the basis of information concerning endangered or threatened 
species or their critical habitats or information concerning cultural or 
historical resources, where such information was not available prior to 
submission of the permit application;
    (ii) Because subsequent to submittal of a permit application, the 
lands contained in the permit application are declared unsuitable for 
mining under subchapter F of this chapter; or
    (iii) Because subsequent to submittal of a permit application, the 
applicant is denied valid existing rights to mine under part 761 of this 
chapter where such rights are required for surface coal mining 
operations on the lands contained in the permit application.
    (2) An applicant may file a written request for withdrawal of a 
permit application and a refund of fees in accordance with paragraph 
(b)(3) of this section.
    (3) OSM will, upon receipt of written request for withdrawal of a 
permit application, cease processing of that application. If requested, 
OSM will refund fees paid by the applicant for the withdrawn application 
as follows:
    (i) Any fees for a stage of OSM review not yet begun will be 
refunded;
    (ii) Where technical review has begun, partial refund will be made 
of any technical review fee amounts remaining after deduction of actual 
costs incurred for that technical review. Costs to process the 
withdrawal may also be deducted.
    (4) No interest will be paid on refunded fees.
    (c) Form of payment. All fees due under this section shall be 
submitted to OSM by the applicant in the form of a certified check, bank 
draft or money order, payable to Office of Surface Mining.
    (d) Fee schedule for a new permit.

Administrative completeness review.......  $250.00
Technical review:
  Basic fee..............................  1350.00
Fee per acre of disturbed area in permit
 area:
  First 1,000 acres......................  13.50/acre
  Second 1,000 acres.....................  6.00/acre
  Third 1,000 acres......................  4.00/acre
  Additional acres.......................  3.00/acre

[[Page 171]]

 
  Decision document......................  2000.00
 


[55 FR 29548, July 19, 1990]



PART 755_TRIBAL-FEDERAL INTERGOVERNMENTAL AGREEMENTS--Table of Contents



Sec.
755.1 Scope.
755.10 Information collection.
755.11 Application and agreement.
755.12 Terms.
755.13 Authority reserved by the Secretary.
755.14 Amendments.
755.15 Termination.

    Authority: Pub. L. 95-87 30 U.S.C. 1201-1328.

    Source: 49 FR 38480, Sept. 28, 1984, unless otherwise noted.



Sec. 755.1  Scope.

    This part sets forth requirements for the development, approval and 
administration of Tribal-Federal Intergovernmental Agreements.



Sec. 755.10  Information collection.

    The information collection requirements contained in this part do 
not require approval from the Office of Management and Budget under 44 
U.S.C. 3507 because there are expected to be less than 10 respondents 
annually.



Sec. 755.11  Application and agreement.

    (a) An Indian tribe may request that the Secretary enter into a 
Tribal-Federal intergovernmental agreement with the tribe.
    (b) A request for a Tribal-Federal intergovernmental agreement shall 
be submitted in writing and shall include proposed terms of the 
agreement consistent with the requirements of this part.



Sec. 755.12  Terms.

    The terms in each Tribal-Federal intergovernmental agreement may 
include:
    (a) Provisions to allow the tribe to work with and assist OSM in the 
review of permit applications, and to recommend appropriate action on 
permits, permit applications, inspection and enforcement, and bond 
release or forfeiture; and
    (b) Provisions to provide funding for tribal employees to attend and 
testify at hearings and to perform other functions under the agreement.



Sec. 755.13  Authority reserved by the Secretary.

    The Secretary shall not delegate to any Indian tribe, nor shall any 
Tribal-Federal Intergovernmental Agreement be construed to delegate to 
any tribe, the nondelegable authority exercised by or reserved to the 
Secretary on Indian lands.



Sec. 755.14  Amendments.

    An agreement that has been approved pursuant to this part may be 
amended by mutual agreement of the Secretary and the officers of the 
tribe.



Sec. 755.15  Termination.

    An agreement may be terminated by either party upon written notice 
to the other specifying the date upon which the agreement will be 
terminated. The date of termination shall be no less than 30 days from 
the date of the notice.



PART 756_INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS--Table of 

Contents



Sec.
756.1 Scope.
756.13 Approval of the Navajo Nation's abandoned mine land plan.
756.14 Approval of amendments to the Navajo Nation's abandoned mine land 
          plan.
756.15 Required amendments to the Navajo Nation's abandoned mine land 
          plan.
756.16 Approval of the Hopi Tribe's abandoned mine land reclamation 
          plan.
756.17 Approval of the Hopi Tribe's abandoned mine land reclamation plan 
          amendments.
756.18 Required amendments to the Hopi Tribe's abandoned mine land 
          reclamation plan.
756.19 Approval of the Crow Tribe's abandoned mine land reclamation 
          plan.
756.20 Approval of amendments to the Crow Tribe's abandoned mine land 
          reclamation plan.
756.21 Required amendments to the Crow Tribe's abandoned mine land 
          reclamation plan.

    Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.

[[Page 172]]



Sec. 756.1  Scope.

    This part implements the provisions in Pub. L. 100-71 which 
authorize the Crow, Hopi, and Navajo Tribes to obtain the Secretary's 
approval of Abandoned Mine Land Reclamation programs without prior 
approval of surface mining regulatory programs as ordinarily required by 
section 405 of SMCRA.

[53 FR 17190, May 16, 1988]



Sec. 756.13  Approval of the Navajo Nation's abandoned mine land plan.

    The Navajo Nation's Abandoned Mine Land Plan as submitted in June 
1982, resubmitted in September 1983, and amended in February 1988, is 
approved effective May 16, 1988. Copies of the approved program are 
available at:
    (a) The Navajo Nation, Navajo Abandoned Mine Land Reclamation 
Department, Division of Natural Resources, Navajo Nation Inn--Office 
Complex, P.O. Box 1875, Window Rock, AZ 86515, Telephone: (520) 871-
7593.
    (b) Office of Surface Mining Reclamation and Enforcement, 
Albuquerque Field Office, 505 Marquette Ave., NW., Suite 1200, 
Albuquerque, NM 87102, Telephone: (505) 248-5070.

[60 FR 33724, June 29, 1995, as amended at 61 FR 6508, Feb. 21, 1996]



Sec. 756.14  Approval of amendments to the Navajo Nation's abandoned mine land 

plan.

    (a) Revisions to the following provisions of the Navajo Nation AMLR 
plan, as submitted to OSM on April 7 and 22, 1994, are approved 
effective September 27, 1994:

Navajo Nation Abandoned Mine Land Reclamation Code of 1987: Introduction

Section 101--Findings
Section 102--Purposes
Section 201--Duties of Navajo Abandoned Mine Lands Reclamation 
Department
Section 401--Navajo Abandoned Mine Reclamation Fund and Purposes
Section 402--Reclamation Fees
Section 403--Objectives of Fund
Section 404--Eligible Lands and Water
Section 405--Reclamation Program
Section 407--Acquisition and Reclamation of Lands Within the Navajo 
Nation Adversely Affected by Past Mining Practices
Section 408--Liens
Section 409--Filling Voids and Sealing Tunnels
Section 410--Deletion of Emergency Powers
Section 411--Certification of Completion of Coal Reclamation
Section 412--Navajo Abandoned Mine Reclamation Fund Report
Section 413--Miscellaneous Powers, and
Section 414--Interagency Cooperation

                           Navajo Nation Rules

II(D) (1) and (2)--Reclamation Priorities
II(L) (1) and (2)--General Reclamation Requirements
II(M) (1) and (2)--Certification of Completion of Coal Reclamation
II(N) (1)--Eligible Lands and Water Subsequent to Certification
II(O) (1)--Exclusion of Noncoal Reclamation Sites
II(P) (1), (2), and (3)--Utilities and Other Facilities, and
III(E) (1)--Future Reclamation Set-Aside Program

    (b) The Director concurs with the Navajo Nation's May 4, 1994, 
certification of completion of coal reclamation effective September 27, 
1994.
    (c) Revisions to sections 404 (a), (b), and (c) of the Navajo Nation 
Abandoned Mine Land Reclamation (AMLR) Code of 1987, pertaining to 
eligible lands and water, as submitted to OSM on January 12, 1995, and 
as subsequently revised on February 23 1995, are approved effective 
April 25, 1995.
    (d) Revisions to, additions of, or deletions of the following rules, 
as submitted to OSM on September 3, 1996, are approved effective April 
15, 1997.

Section II, E, 1, Project selection,
Sections II, L, 1(e) and (g), Eligible coal lands and water,
Section II, L, 1(h), Limited liability,
Section II, L, 1(i), Contractor responsibility,
Section II, L, 1(j), Reports,
Sections II, L, 2(b)(3) and (4), Eligible noncoal lands and water prior 
to certification,
Section II, L, 2(c), Limited liability,
Section II, L, 2(d), Contractor responsibility,
Section II, L, 2(e), Reports,
Sections II, M, 1(b) and (d), 2, and 2(a) and (b), Certification of 
completion of coal sites,
Sections II, N, 1 and 1(c), Eligible lands and water subsequent to 
certification,
Sections II, P, 1(a) through (c), 2(a) through (f), and (3), Utilities 
and other facilities, and
Section III, E, 1 and 1(a), Future reclamation set-aside program.

[[Page 173]]

    (e) Addition or removal of the following rules, as submitted to OSM 
on March 2 and 8, 2001, is approved effective July 31, 2001:

Section II, subsections M, 2, 2(a), 2(a)(1), 2(a)(2), and 2(a)(3), 
noncoal reclamation after certification (removed);
Section II, subsection O, 1, Exclusion of Noncoal Reclamation Sites 
(removed);
Section II, subsection O, subsection heading ``NONCOAL RECLAMATION AFTER 
CERTIFICATION;''
Section II, subsection O, 1, applicability of subsection O;
Section II, subsections O, 2, 2(a) through 2(c), objectives and 
priorities;
Section II, subsection O, 3, enhancement of facilities and utilities;
Section II, subsection O, 4, determination of need for activities and 
construction of specific public facilities and submittal of grant 
applications;
Section II, subsection O, 5 through 5(h), requirements for grant 
applications submitted under subsection O.4 to meet;
Section II, subsection O, 6, exclusion of certain noncoal reclamation 
sites;
Section II, subsection O, 7, land acquisition authority for the noncoal 
program;
Section II, subsection O, 8, lien requirements;
Section II, subsection O, 9, limited liability;
Section II, subsection O, 10, contractor responsibility; and
Section II, subsection P, subsection heading, ``RESERVED'' (removed).

[59 FR 49185, Sept. 27, 1994, as amended at 60 FR 20195, Apr. 25, 1995; 
62 FR 18272, Apr. 15, 1997; 66 FR 39443, July 31, 2001]



Sec. 756.15  Required amendments to the Navajo Nation's abandoned mine land 

plan.

    Pursuant to 30 CFR 884.15, the Navajo Nation is required to submit 
to OSM by the date specified either a proposed amendment or a reasonable 
timetable, which is consistent with the Navajo Nation's established 
administrative and legislative procedures, for submitting an amendment 
to the Navajo Nation plan.

[61 FR 6508, Feb. 21, 1996]



Sec. 756.16  Approval of the Hopi Tribe's abandoned mine land reclamation 

plan.

    The Hopi Tribe's Abandoned Mine Land Reclamation Plan as submitted 
in July 1983, and amended in March and May 1988, is approved. Copies of 
the approved Plan are available at the following locations:
    (a) The Hopi Tribe, Hopi Abandoned Mine Land Program, Department of 
Natural Resources, Honahni Building, P.O. Box 123, Kykotsmovi, AZ 86039, 
Telephone: (520) 734-2441.
    (b) Office of Surface Mining Reclamation and Enforcement, 
Albuquerque Field Office, 505 Marquette Ave., NW., Suite 1200, 
Albuquerque, NM 87102, Telephone: (505) 248-5070.

[61 FR 6508, Feb. 21, 1996]



Sec. 756.17  Approval of the Hopi Tribe's abandoned mine land reclamation plan 

amendments.

    The following amendments to the Hopi Tribe's abandoned mine land 
reclamation plan are approved.
    (a) The Hopi Tribe certification of completion of coal reclamation, 
as submitted on February 2, 1994, is approved effective June 9, 1994.
    (b) With the exceptions of part I, concerning the purpose of the 
Hopi tribe plan; section I, A(3) concerning facilities related to water 
supplies; section I, A(4), concerning public facilities projects; 
section II, B(1)(d)(ii), concerning the protection of property; and 
section 884.13(f)(2), concerning a description of aesthetic, cultural 
and recreational conditions of the Hopi Reservation, revisions to and 
additions of the following plan provisions, as submitted to OSM on 
November 2, 1995, are approved effective April 23, 1996.

Table of Contents--Title of Part II and List of Appendices;
List of Addenda and Errata--Title for this part;
List of Figures--Title of Figure 4 and deletion of Figure 5;
Preface to Amended Reclamation Plan--Introductory paragraph, program 
goals and objectives, and eligible projects;
Chairman's Letter of Designation and Hopi Tribe Resolution--Designation 
of Tribal agency authorized to administer approved plan;
Opinion of Legal Counsel--Authority of designated agency to conduct the 
AMLR program in accordance with the requirements of Title IV of SMCRA;
Section I, A(1)--Protection of the health, safety, and general welfare 
of members of the Hopi Tribe;
Section I, A(2)--Restoration of land and water resources;

[[Page 174]]

Section I, B--Designation of administrative authority;
Section I, C--Reclamation priorities;
Sections I, C (4) and (5)--Deletion of existing C(4) and recodification 
of C(5) and (6) as C(4) and (5);
Section I, C--Deletion of allocation of funds provisions;
Section II, A--[Lack of] Limited liability provision for coal;
Section II, A(1)--Abatement of any new coal problems that arise after 
the effective date of the certification of completion of coal 
reclamation;
Sections II, A(1) (a) through (f)--Eligible coal lands and water;
Section II, (A)(1)(g)--Contractor responsibility;
Section II, A(1)(h)--Reports;
Sections II, B(1) (a) and (b)--Eligible lands and water subsequent to 
certification;
Sections II, B(1)(c), (d) (i) and (iii), (e), and (g)--Reclamation 
priorities for noncoal program;
Section II, B(1)(f)--Need for activities or construction of specific 
public facilities related to the coal or mineral industry on Tribal 
lands impacted by coal or mineral development;
Section II, G--Reports;
Sections II, C through F--Exclusion of certain noncoal reclamation 
sites, noncoal land acquisition authority, limited liability, and 
contractor responsibility;
Section II, H and [deletion of] ranking and selection of noncoal 
reclamation projects and Table I, Comprehensive/Problem Evaluation 
Matrix--Description of needs, proposed construction and activities;
Part III--Coordination of Tribal AML programs with other programs;
Section IV, A(1)--Acquisition of lands by the Hopi Tribe;
Section IV, A(2)(a)(i)--Appraisals;
Section IV, A(2)(b)--Lands eligible for acquisition;
Sections IV, A(2) (c), (d), (e), B(2), and C--Land acquisition, 
management, and disposal;
Section IV, B(1)--Management of acquired lands;
Part V and Figures 1 and 2--Reclamation on private land;
Section VI, A, B, and C--Rights of entry;
Deletion of section VI, C--Entry for emergency reclamation;
Part VII--Hopi Department of Natural Resources (DNR) policy on public 
participation;
Part VIII and Figure 4--Organization of the Hopi Tribe;
Part IX--Personnel staffing policies;
Part X--Purchasing and procurement;
Part XI--Management accounting;
[Deletion of] sections 884.13(e) (1), (2), and (3)--Purpose of Hopi 
Tribe plan and criteria for ranking and identifying projects;
Part XII--Economic conditions of the Hopi Reservation;
Part XIII--Flora and fauna;
Appendices 1 through 12--Addition of cover pages;
Appendix 1--Constitution and By-Laws of the Hopi Tribe, as amended;
Appendix 7--Title of the appendix;
Memorandum from the Assistant General Counsel/Legislation Counsel to DNR 
dated May 18, 1995--Elimination of Title IV from the draft Hopi Code 
Mining Ordinance;
Hopi Tribal Council Resolution H-134-89, adopted August 29, 1989; and
Memorandum from the Hopi Tribe Office of Financial Management to DNR 
dated September 7, 1995--Purchasing procedures.

    (c) Revisions to, additions of, or deletions of the following plan 
provisions, as submitted to OSM on September 23, 1996, are approved 
effective March 31, 1997:

Preface to Amended Reclamation Plan--Introductory paragraph and Eligible 
Projects;
Section I, A--Purpose of Hopi plan;
Section II, A(1)--Certification of Completion of Coal Sites;
Section II, A(1)(a)--Eligible Coal Lands and Water;
Section II, A, (1)(g)--Contractor Responsibility (for coal reclamation);
Section II, (A)(1)(i)--Limited Liability (for coal reclamation);
Sections II, (B)(1)(d) and (d)(ii)--Noncoal Reclamation After 
Certification;
Sections II, (B)(1)(h), (i), and (j)--Limited Liability, Contractor 
Responsibility, and Reports (for noncoal reclamation);
Deletion of sections II, E, F, and G--Limited Liability, Contractor 
Responsibility, and Reports (for noncoal reclamation);
Section II, E--Description of Needs, Proposed Construction and 
Activities;
Sections IV, (A)(1) and (B)(1)--Acquisition and Management of Acquired 
Lands;
Sections VI, A(1) (a) through (c) and B(1)--Consent to Entry and Public 
Notice;
Section VII, B(8)--Public Participation;
Section VIII--Organization of the Hopi Tribe;
Section XII--Description of Aesthetic, Cultural and Recreational 
Conditions of the Hopi Reservation; and
Section XIV--Flora and Fauna.

[61 FR 17839, Apr. 23, 1996, as amended at 62 FR 15115, Mar. 31, 1997]



Sec. 756.18  Required amendments to the Hopi Tribe's abandoned mine land 

reclamation plan.

    Pursuant to 30 CFR 884.15, the Hopi Tribe is required to submit to 
OSM by the date specified either a proposed

[[Page 175]]

amendment or a reasonable timetable, which is consistent with the Hopi 
Tribe's established administrative and legislative procedures, for 
submitting an amendment to the Hopi Tribe plan.
    (a)-(b) [Reserved]

[61 FR 6508, Feb. 21, 1996, as amended at 61 FR 17840, Apr. 23, 1996; 62 
FR 15115, Mar. 31, 1997]



Sec. 756.19  Approval of the Crow Tribe's abandoned mine land reclamation 

plan.

    The Crow Tribe's Abandoned Mine Land Reclamation Plan as submitted 
in 1982, and resubmitted in September, 1988 is approved. Copies of the 
approved Plan are available at the following locations:
    (a) Crow Tribal Council, Crow Office of Reclamation, P.O. Box 159, 
Crow Agency, MT 59022.
    (b) Office of Surface Mining Reclamation and Enforcement, Casper 
Field Office, Room 2128, 100 East B Street, Casper, WY 82601-1918, 
Telephone: (307) 261-6555.

[61 FR 6508, Feb. 21, 1996]



Sec. 756.20  Approval of amendments to the Crow Tribe's abandoned mine land 

reclamation plan.

    Revisions to the following provisions of the Crow Tribe's Abandoned 
Mine Land Reclamation Plan, as submitted to OSM on the date specified, 
are approved.
    (a) The Director concurs with the Crow Tribe's May 29, 2007, 
certification of completion of coal reclamation effective April 1, 2008:

----------------------------------------------------------------------------------------------------------------
                                        Date of final
Original amendment submission date       publication                        Citation/description
----------------------------------------------------------------------------------------------------------------
May 29, 2007......................  April 1, 2008........  756.20 Certification of Completion.
----------------------------------------------------------------------------------------------------------------

    (b) [Reserved]

[61 FR 6509, Feb. 21, 1996, as amended at 73 FR 17249, Apr. 1, 2008]



Sec. 756.21  Required amendments to the Crow Tribe's abandoned mine land 

reclamation plan.

    Pursuant to 30 CFR 884.15, the Crow Tribe is required to submit to 
OSM by the date specified either a proposed amendment or a reasonable 
timetable, which is consistent with the Crow Tribe's established 
administrative and legislative procedures, for submitting an amendment 
to the Crow Tribe plan.

[61 FR 6509, Feb. 21, 1996]

[[Page 176]]



                SUBCHAPTER F_AREAS UNSUITABLE FOR MINING



PART 761_AREAS DESIGNATED BY ACT OF CONGRESS--Table of Contents



Sec.
761.1 Scope.
761.3 Authority.
761.5 Definitions.
761.10 Information collection.
761.11 Areas where surface coal mining operations are prohibited or 
          limited.
761.12 Exception for existing operations.
761.13 Procedures for compatibility findings for surface coal mining 
          operations on Federal lands in national forests.
761.14 Procedures for relocating or closing a public road or waiving the 
          prohibition on surface coal mining operations within the 
          buffer zone of a public road.
761.15 Procedures for waiving the prohibition on surface coal mining 
          operations within the buffer zone of an occupied dwelling.
761.16 Submission and processing of requests for valid existing rights 
          determinations.
761.17 Regulatory authority obligations at time of permit application 
          review.
761.200 Interpretative rule related to subsidence due to underground 
          coal mining in areas designated by Act of Congress.

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

    Source: 48 FR 41348, Sept. 14, 1983, unless otherwise noted.



Sec. 761.1  Scope.

    This part establishes the procedures and standards to be followed in 
determining whether a proposed surface coal mining and reclamation 
operation can be authorized in light of the prohibitions and limitations 
in section 522(e) of the Act for those types of operations on certain 
Federal, public and private lands.



Sec. 761.3  Authority.

    The State regulatory authority or the Secretary is authorized by 
section 522(e) of the Act (30 U.S.C. 1272(e)) to prohibit or limit 
surface coal mining operations on or near certain private, Federal, and 
other public lands, subject to valid existing rights and except for 
those operations which existed on August 3, 1977.



Sec. 761.5  Definitions.

    For the purposes of this part--
    Cemetery means any area of land where human bodies are interred.
    Community or institutional building means any structure, other than 
a public building or an occupied dwelling, which is used primarily for 
meetings, gatherings or functions of local civic organizations or other 
community groups; functions as an educational, cultural, historic, 
religious, scientific, correctional, mental-health or physical health 
care facility; or is used for public services, including, but not 
limited to, water supply, power generation or sewage treatment.
    Occupied dwelling means any building that is currently being used on 
a regular or temporary basis for human habitation.
    Public building means any structure that is owned or leased, and 
principally used by a governmental agency for public business or 
meetings.
    Public park means an area or portion of an area dedicated or 
designated by any Federal, State, or local agency primarily for public 
recreational use, whether or not such use is limited to certain times or 
days, including any land leased, reserved, or held open to the public 
because of that use.
    Public road means a road (a) which has been designated as a public 
road pursuant to the laws of the jurisdiction in which it is located; 
(b) which is maintained with public funds in a manner similar to other 
public roads of the same classification within the jurisdiction; (c) for 
which there is substantial (more than incidental) public use; and (d) 
which meets road construction standards for other public roads of the 
same classification in the local jurisdiction.
    Publicly-owned park means a public park that is owned by a Federal, 
State or local governmental entity.
    Significant forest cover means an existing plant community 
consisting predominantly of trees and other woody vegetation. The 
Secretary of Agriculture shall decide on a case-by-case basis whether 
the forest cover is significant within those national forests west of 
the 100th meridian.

[[Page 177]]

    Significant recreational, timber, economic, or other values 
incompatible with surface coal mining operations means those values to 
be evaluated for their significance which could be damaged by, and are 
not capable of existing together with, surface coal mining operations 
because of the undesirable effects mining would have on those values, 
either on the area included in the permit application or on other 
affected areas. Those values to be evaluated for their importance 
include:
    (a) Recreation, including hiking, boating, camping, skiing or other 
related outdoor activities;
    (b) Timber manager and silviculture;
    (c) Agriculture, aquaculture or production of other natural, 
processed or manufactured products which enter commerce;
    (d) Scenic, historic, archeologic, esthetic, fish, wildlife, plants 
or cultural interests.
    Surface operations and impacts incident to an underground coal mine 
means all activities involved in or related to underground coal mining 
which are either conducted on the surface of the land, produce changes 
in the land surface or disturb the surface, air or water resources of 
the area, including all activities listed in section 701(28) of the Act 
and the definition of surface coal mining operations appearing in Sec. 
700.5 of this chapter.
    Valid existing rights means a set of circumstances under which a 
person may, subject to regulatory authority approval, conduct surface 
coal mining operations on lands where 30 U.S.C. 1272(e) and Sec. 761.11 
would otherwise prohibit such operations. Possession of valid existing 
rights only confers an exception from the prohibitions of Sec. 761.11 
and 30 U.S.C. 1272(e). A person seeking to exercise valid existing 
rights must comply with all other pertinent requirements of the Act and 
the applicable regulatory program.
    (a) Property rights demonstration. Except as provided in paragraph 
(c) of this definition, a person claiming valid existing rights must 
demonstrate that a legally binding conveyance, lease, deed, contract, or 
other document vests that person, or a predecessor in interest, with the 
right to conduct the type of surface coal mining operations intended. 
This right must exist at the time that the land came under the 
protection of Sec. 761.11 or 30 U.S.C. 1272(e). Applicable State 
statutory or case law will govern interpretation of documents relied 
upon to establish property rights, unless Federal law provides 
otherwise. If no applicable State law exists, custom and generally 
accepted usage at the time and place that the documents came into 
existence will govern their interpretation.
    (b) Except as provided in paragraph (c) of this definition, a person 
claiming valid existing rights also must demonstrate compliance with one 
of the following standards:
    (1) Good faith/all permits standard. All permits and other 
authorizations required to conduct surface coal mining operations had 
been obtained, or a good faith effort to obtain all necessary permits 
and authorizations had been made, before the land came under the 
protection of Sec. 761.11 or 30 U.S.C. 1272(e). At a minimum, an 
application must have been submitted for any permit required under 
subchapter G of this chapter or its State program counterpart.
    (2) Needed for and adjacent standard. The land is needed for and 
immediately adjacent to a surface coal mining operation for which all 
permits and other authorizations required to conduct surface coal mining 
operations had been obtained, or a good faith attempt to obtain all 
permits and authorizations had been made, before the land came under the 
protection of Sec. 761.11 or 30 U.S.C. 1272(e). To meet this standard, 
a person must demonstrate that prohibiting expansion of the operation 
onto that land would unfairly impact the viability of the operation as 
originally planned before the land came under the protection of Sec. 
761.11 or 30 U.S.C. 1272(e). Except for operations in existence before 
August 3, 1977, or for which a good faith effort to obtain all necessary 
permits had been made before August 3, 1977, this standard does not 
apply to lands already under the protection of Sec. 761.11 or 30 U.S.C. 
1272(e) when the regulatory authority approved the permit for the 
original operation or when the good faith effort to obtain all necessary 
permits for the

[[Page 178]]

original operation was made. In evaluating whether a person meets this 
standard, the agency making the determination may consider factors such 
as:
    (i) The extent to which coal supply contracts or other legal and 
business commitments that predate the time that the land came under the 
protection of Sec. 761.11 or 30 U.S.C. 1272(e) depend upon use of that 
land for surface coal mining operations.
    (ii) The extent to which plans used to obtain financing for the 
operation before the land came under the protection of Sec. 761.11 or 
30 U.S.C. 1272(e) rely upon use of that land for surface coal mining 
operations.
    (iii) The extent to which investments in the operation before the 
land came under the protection of Sec. 761.11 or 30 U.S.C. 1272(e) rely 
upon use of that land for surface coal mining operations.
    (iv) Whether the land lies within the area identified on the life-
of-mine map submitted under Sec. 779.24(c) or Sec. 783.24(c) of this 
chapter before the land came under the protection of Sec. 761.11.
    (c) Roads. A person who claims valid existing rights to use or 
construct a road across the surface of lands protected by Sec. 761.11 
or 30 U.S.C. 1272(e) must demonstrate that one or more of the following 
circumstances exist if the road is included within the definition of 
``surface coal mining operations'' in Sec. 700.5 of this chapter:
    (1) The road existed when the land upon which it is located came 
under the protection of Sec. 761.11 or 30 U.S.C. 1272(e), and the 
person has a legal right to use the road for surface coal mining 
operations.
    (2) A properly recorded right of way or easement for a road in that 
location existed when the land came under the protection of Sec. 761.11 
or 30 U.S.C. 1272(e), and, under the document creating the right of way 
or easement, and under subsequent conveyances, the person has a legal 
right to use or construct a road across the right of way or easement for 
surface coal mining operations.
    (3) A valid permit for use or construction of a road in that 
location for surface coal mining operations existed when the land came 
under the protection of Sec. 761.11 or 30 U.S.C. 1272(e).
    (4) Valid existing rights exist under paragraphs (a) and (b) of this 
definition.
    We, us, and our refer to the Office of Surface Mining Reclamation 
and Enforcement.
    You and your refer to a person who claims or seeks to obtain an 
exception or waiver authorized by Sec. 761.11 or 30 U.S.C. 1272(e).

[48 FR 41348, Sept. 14, 1983, as amended at 52 FR 4261, Feb. 10, 1987; 
56 FR 65634, Dec. 17, 1991; 64 FR 70831, Dec. 17, 1999]



Sec. 761.10  Information collection.

    (a) In accordance with 44 U.S.C. 3501 et seq., the Office of 
Management and Budget (OMB) has approved the information collection 
requirements of this part. The OMB clearance number is 1029-0111. The 
regulatory authority or other responsible agency will use this 
information to determine whether a person has valid existing rights or 
qualifies for one of the other waivers or exemptions from the general 
prohibition on conducting surface coal mining operations in the areas 
listed in 30 U.S.C. 1272(e). Persons seeking to conduct surface coal 
mining operations on these lands must respond to obtain a benefit in 
accordance with 30 U.S.C. 1272(e).
    (b) We estimate that the public reporting and recordkeeping burden 
for this part will average 15 hours per response under Sec. 761.13, 0.5 
hour per response under Sec. 761.14, 2 hours per response under Sec. 
761.15, 14 hours per response under Sec. 761.16, 2 hours per response 
under Sec. 761.17(c), and 2 hours per response under Sec. 761.17(d), 
including time spent reviewing instructions, searching existing data 
sources, gathering and maintaining the data needed, and completing and 
reviewing the collection of information. The burden for Sec. 761.16 
includes 6 hours for the person seeking the determination and 8 hours 
for the agency processing the request. Send comments regarding this 
burden estimate or any other aspect of these information collection and 
recordkeeping requirements, including suggestions for reducing the 
burden, to the Office of Surface Mining Reclamation and Enforcement, 
Information Collection Clearance Officer, 1951 Constitution Avenue, 
N.W., Washington, DC

[[Page 179]]

20240; and the Office of Management and Budget, Office of Information 
and Regulatory Affairs, Attention: Interior Desk Officer, 725 17th 
Street, N.W., Washington, DC 20503. Please refer to OMB Control Number 
1029-0111 in any correspondence.

[64 FR 70832, Dec. 17, 1999]



Sec. 761.11  Areas where surface coal mining operations are prohibited or 

limited.

    You may not conduct surface coal mining operations on the following 
lands unless you either have valid existing rights, as determined under 
Sec. 761.16, or qualify for the exception for existing operations under 
Sec. 761.12:
    (a) Any lands within the boundaries of:
    (1) The National Park System;
    (2) The National Wildlife Refuge System;
    (3) The National System of Trails;
    (4) The National Wilderness Preservation System;
    (5) The Wild and Scenic Rivers System, including study rivers 
designated under section 5(a) of the Wild and Scenic Rivers Act, 16 
U.S.C. 1276(a), or study rivers or study river corridors established in 
any guidelines issued under that Act; or
    (6) National Recreation Areas designated by Act of Congress.
    (b) Any Federal lands within a national forest. This prohibition 
does not apply if the Secretary finds that there are no significant 
recreational, timber, economic, or other values that may be incompatible 
with surface coal mining operations, and:
    (1) Any surface operations and impacts will be incident to an 
underground coal mine; or
    (2) With respect to lands that do not have significant forest cover 
within national forests west of the 100th meridian, the Secretary of 
Agriculture has determined that surface mining is in compliance with the 
Act, the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. 528-531; 
the Federal Coal Leasing Amendments Act of 1975, 30 U.S.C. 181 et seq.; 
and the National Forest Management Act of 1976, 16 U.S.C. 1600 et seq. 
This provision does not apply to the Custer National Forest.
    (c) Any lands where the operation would adversely affect any 
publicly owned park or any place in the National Register of Historic 
Places. This prohibition does not apply if, as provided in Sec. 
761.17(d), the regulatory authority and the Federal, State, or local 
agency with jurisdiction over the park or place jointly approve the 
operation.
    (d) Within 100 feet, measured horizontally, of the outside right-of-
way line of any public road. This prohibition does not apply:
    (1) Where a mine access or haul road joins a public road, or
    (2) When, as provided in Sec. 761.14, the regulatory authority (or 
the appropriate public road authority designated by the regulatory 
authority) allows the public road to be relocated or closed, or the area 
within the protected zone to be affected by the surface coal mining 
operation, after:
    (i) Providing public notice and opportunity for a public hearing; 
and
    (ii) Finding in writing that the interests of the affected public 
and landowners will be protected.
    (e) Within 300 feet, measured horizontally, of any occupied 
dwelling. This prohibition does not apply when:
    (1) The owner of the dwelling has provided a written waiver 
consenting to surface coal mining operations within the protected zone, 
as provided in Sec. 761.15; or
    (2) The part of the operation to be located closer than 300 feet to 
the dwelling is an access or haul road that connects with an existing 
public road on the side of the public road opposite the dwelling.
    (f) Within 300 feet, measured horizontally, of any public building, 
school, church, community or institutional building, or public park.
    (g) Within 100 feet, measured horizontally, of a cemetery. This 
prohibition does not apply if the cemetery is relocated in accordance 
with all applicable laws and regulations.

[64 FR 70832, Dec. 17, 1999]



Sec. 761.12  Exception for existing operations.

    The prohibitions and limitations of Sec. 761.11 do not apply to:
    (a) Surface coal mining operations for which a valid permit, issued 
under

[[Page 180]]

Subchapter G of this chapter or an approved State regulatory program, 
exists when the land comes under the protection of Sec. 761.11. This 
exception applies only to lands within the permit area as it exists when 
the land comes under the protection of Sec. 761.11.
    (b) With respect to operations subject to Subchapter B of this 
chapter, lands upon which validly authorized surface coal mining 
operations exist when the land comes under the protection of 30 U.S.C. 
1272(e) or Sec. 761.11.

[64 FR 70833, Dec. 17, 1999]



Sec. 761.13  Procedures for compatibility findings for surface coal mining 

operations on Federal lands in national forests.

    (a) If you intend to rely upon the exception provided in Sec. 
761.11(b) to conduct surface coal mining operations on Federal lands 
within a national forest, you must request that we obtain the 
Secretarial findings required by Sec. 761.11(b).
    (b) You may submit a request to us before preparing and submitting 
an application for a permit or boundary revision. If you do, you must 
explain how the proposed operation would not damage the values listed in 
the definition of ``significant recreational, timber, economic, or other 
values incompatible with surface coal mining operations'' in Sec. 
761.5. You must include a map and sufficient information about the 
nature of the proposed operation for the Secretary to make adequately 
documented findings. We may request that you provide any additional 
information that we determine is needed to make the required findings.
    (c) When a proposed surface coal mining operation or proposed 
boundary revision for an existing surface coal mining operation includes 
Federal lands within a national forest, the regulatory authority may not 
issue the permit or approve the boundary revision before the Secretary 
makes the findings required by Sec. 761.11(b).

[64 FR 70833, Dec. 17, 1999]



Sec. 761.14  Procedures for relocating or closing a public road or waiving the 

prohibition on surface coal mining operations within the buffer zone of a 

public road.

    (a) This section does not apply to:
    (1) Lands for which a person has valid existing rights, as 
determined under Sec. 761.16.
    (2) Lands within the scope of the exception for existing operations 
in Sec. 761.12.
    (3) Access or haul roads that join a public road, as described in 
Sec. 761.11(d)(1).
    (b) You must obtain any necessary approvals from the authority with 
jurisdiction over the road if you propose to:
    (1) Relocate a public road;
    (2) Close a public road; or
    (3) Conduct surface coal mining operations within 100 feet, measured 
horizontally, of the outside right-of-way line of a public road.
    (c) Before approving an action proposed under paragraph (b) of this 
section, the regulatory authority, or a public road authority that it 
designates, must determine that the interests of the public and affected 
landowners will be protected. Before making this determination, the 
authority must:
    (1) Provide a public comment period and opportunity to request a 
public hearing in the locality of the proposed operation;
    (2) If a public hearing is requested, publish appropriate advance 
notice at least two weeks before the hearing in a newspaper of general 
circulation in the affected locality; and
    (3) Based upon information received from the public, make a written 
finding as to whether the interests of the public and affected 
landowners will be protected. If a hearing was held, the authority must 
make this finding within 30 days after the hearing. If no hearing was 
held, the authority must make this finding within 30 days after the end 
of the public comment period.

[64 FR 70833, Dec. 17, 1999]

[[Page 181]]



Sec. 761.15  Procedures for waiving the prohibition on surface coal mining 

operations within the buffer zone of an occupied dwelling.

    (a) This section does not apply to:
    (1) Lands for which a person has valid existing rights, as 
determined under Sec. 761.16.
    (2) Lands within the scope of the exception for existing operations 
in Sec. 761.12.
    (3) Access or haul roads that connect with an existing public road 
on the side of the public road opposite the dwelling, as provided in 
Sec. 761.11(e)(2).
    (b) If you propose to conduct surface coal mining operations within 
300 feet, measured horizontally, of any occupied dwelling, the permit 
application must include a written waiver by lease, deed, or other 
conveyance from the owner of the dwelling. The waiver must clarify that 
the owner and signator had the legal right to deny mining and knowingly 
waived that right. The waiver will act as consent to surface coal mining 
operations within a closer distance of the dwelling as specified.
    (c) If you obtained a valid waiver before August 3, 1977, from the 
owner of an occupied dwelling to conduct operations within 300 feet of 
the dwelling, you need not submit a new waiver.
    (d) If you obtain a valid waiver from the owner of an occupied 
dwelling, that waiver will remain effective against subsequent 
purchasers who had actual or constructive knowledge of the existing 
waiver at the time of purchase. A subsequent purchaser will be deemed to 
have constructive knowledge if the waiver has been properly filed in 
public property records pursuant to State laws or if surface coal mining 
operations have entered the 300-foot zone before the date of purchase.

[64 FR 70833, Dec. 17, 1999]



Sec. 761.16  Submission and processing of requests for valid existing rights 

determinations.

    (a) Basic framework for valid existing rights determinations. The 
following table identifies the agency responsible for making a valid 
existing rights determination and the definition that it must use, based 
upon which paragraph of Sec. 761.11 applies and whether the request 
includes Federal lands.

----------------------------------------------------------------------------------------------------------------
                                                                                                  Applicable
 Paragraph of Sec.  761.11 that                        Type of land to   Agency responsible     definition of
       provides protection         Protected feature    which  request    for  determination    valid existing
                                                           pertains                                 rights
----------------------------------------------------------------------------------------------------------------
(a).............................  National parks,     Federal...........  OSM...............  Federal \1\
                                   wildlife refuges,
                                   etc..
(a).............................  National parks,     Non-Federal.......  Regulatory          Federal \1\
                                   wildlife refuges,                       authority.
                                   etc..
(b).............................  Federal lands in    Federal...........  OSM...............  Federal \1\
                                   national forests
                                   \3\.
(c).............................  Public parks and    Does not matter...  Regulatory          Regulatory program
                                   historic places.                        authority.          \2\
(d).............................  Public roads......  Does not matter...  Regulatory          Regulatory program
                                                                           authority.          \2\
(e).............................  Occupied dwellings  Does not matter...  Regulatory          Regulatory program
                                                                           authority.          \2\
(f).............................  Schools, churches,  Does not matter...  Regulatory          Regulatory program
                                   parks, etc..                            authority.          \2\
(g).............................  Cemeteries........  Does not matter...  Regulatory          Regulatory program
                                                                           authority.          \2\
----------------------------------------------------------------------------------------------------------------
\1\ Definition in 30 CFR 761.5.
\2\ Definition in applicable State or Federal regulatory program under 30 CFR Chapter VII, Subchapter T.
\3\ Neither 30 U.S.C. 1272(e) nor 30 CFR 761.11 provides special protection for non-Federal lands within
  national forests. Therefore, this table does not include a category for those lands.

    (b) What you must submit as part of a request for a valid existing 
rights determination. You must submit a request for a valid existing 
rights determination to the appropriate agency under paragraph (a) of 
this section if you intend to conduct surface coal mining operations on 
the basis of valid existing rights under Sec. 761.11 or wish to confirm 
the right to do so. You may submit this request before preparing and 
submitting an application for a permit or boundary revision for the 
land, unless the applicable regulatory program provides otherwise.
    (1) Requirements for property rights demonstration. You must provide 
a property rights demonstration under paragraph (a) of the definition of 
valid existing rights in Sec. 761.5 if your request relies upon the 
good faith/all permits standard or the needed for and adjacent

[[Page 182]]

standard in paragraph (b) of the definition of valid existing rights in 
Sec. 761.5. This demonstration must include the following items:
    (i) A legal description of the land to which your request pertains.
    (ii) Complete documentation of the character and extent of your 
current interests in the surface and mineral estates of the land to 
which your request pertains.
    (iii) A complete chain of title for the surface and mineral estates 
of the land to which your request pertains.
    (iv) A description of the nature and effect of each title instrument 
that forms the basis for your request, including any provision 
pertaining to the type or method of mining or mining-related surface 
disturbances and facilities.
    (v) A description of the type and extent of surface coal mining 
operations that you claim the right to conduct, including the method of 
mining, any mining-related surface activities and facilities, and an 
explanation of how those operations would be consistent with State 
property law.
    (vi) Complete documentation of the nature and ownership, as of the 
date that the land came under the protection of Sec. 761.11 or 30 
U.S.C. 1272(e), of all property rights for the surface and mineral 
estates of the land to which your request pertains.
    (vii) Names and addresses of the current owners of the surface and 
mineral estates of the land to which your request pertains.
    (viii) If the coal interests have been severed from other property 
interests, documentation that you have notified and provided reasonable 
opportunity for the owners of other property interests in the land to 
which your request pertains to comment on the validity of your property 
rights claims.
    (ix) Any comments that you receive in response to the notification 
provided under paragraph (b)(1)(viii) of this section.
    (2) Requirements for good faith/all permits standard. If your 
request relies upon the good faith/all permits standard in paragraph 
(b)(1) of the definition of valid existing rights in Sec. 761.5, you 
must submit the information required under paragraph (b)(1) of this 
section. You also must submit the following information about permits, 
licenses, and authorizations for surface coal mining operations on the 
land to which your request pertains:
    (i) Approval and issuance dates and identification numbers for any 
permits, licenses, and authorizations that you or a predecessor in 
interest obtained before the land came under the protection of Sec. 
761.11 or 30 U.S.C. 1272(e).
    (ii) Application dates and identification numbers for any permits, 
licenses, and authorizations for which you or a predecessor in interest 
submitted an application before the land came under the protection of 
Sec. 761.11 or 30 U.S.C. 1272(e).
    (iii) An explanation of any other good faith effort that you or a 
predecessor in interest made to obtain the necessary permits, licenses, 
and authorizations as of the date that the land came under the 
protection of Sec. 761.11 or 30 U.S.C. 1272(e).
    (3) Requirements for needed for and adjacent standard. If your 
request relies upon the needed for and adjacent standard in paragraph 
(b)(2) of the definition of valid existing rights in Sec. 761.5, you 
must submit the information required under paragraph (b)(1) of this 
section. In addition, you must explain how and why the land is needed 
for and immediately adjacent to the operation upon which your request is 
based, including a demonstration that prohibiting expansion of the 
operation onto that land would unfairly impact the viability of the 
operation as originally planned before the land came under the 
protection of Sec. 761.11 or 30 U.S.C. 1272(e).
    (4) Requirements for standards for mine roads. If your request 
relies upon one of the standards for roads in paragraphs (c)(1) through 
(c)(3) of the definition of valid existing rights in Sec. 761.5, you 
must submit satisfactory documentation that:
    (i) The road existed when the land upon which it is located came 
under the protection of Sec. 761.11 or 30 U.S.C. 1272(e), and you have 
a legal right to use the road for surface coal mining operations;
    (ii) A properly recorded right of way or easement for a road in that 
location existed when the land came under the

[[Page 183]]

protection of Sec. 761.11 or 30 U.S.C. 1272(e), and, under the document 
creating the right of way or easement, and under any subsequent 
conveyances, you have a legal right to use or construct a road across 
that right of way or easement to conduct surface coal mining operations; 
or
    (iii) A valid permit for use or construction of a road in that 
location for surface coal mining operations existed when the land came 
under the protection of Sec. 761.11 or 30 U.S.C. 1272(e).
    (c) Initial review of request. (1) The agency must conduct an 
initial review to determine whether your request includes all applicable 
components of the submission requirements of paragraph (b) of this 
section. This review pertains only to the completeness of the request, 
not the legal or technical adequacy of the materials submitted.
    (2) If your request does not include all applicable components of 
the submission requirements of paragraph (b) of this section, the agency 
must notify you and establish a reasonable time for submission of the 
missing information.
    (3) When your request includes all applicable components of the 
submission requirements of paragraph (b) of this section, the agency 
must implement the notice and comment requirements of paragraph (d) of 
this section.
    (4) If you do not provide information that the agency requests under 
paragraph (c)(2) of this section within the time specified or as 
subsequently extended, the agency must issue a determination that you 
have not demonstrated valid existing rights, as provided in paragraph 
(e)(4) of this section.
    (d) Notice and comment requirements and procedures. (1) When your 
request satisfies the completeness requirements of paragraph (c) of this 
section, the agency must publish a notice in a newspaper of general 
circulation in the county in which the land is located. This notice must 
invite comment on the merits of the request. Alternatively, the agency 
may require that you publish this notice and provide the agency with a 
copy of the published notice. We will publish a similar notice in the 
Federal Register if your request involves Federal lands within an area 
listed in Sec. 761.11(a) or (b). Each notice must include:
    (i) The location of the land to which the request pertains.
    (ii) A description of the type of surface coal mining operations 
planned.
    (iii) A reference to and brief description of the applicable 
standard(s) under the definition of valid existing rights in Sec. 
761.5.
    (A) If your request relies upon the good faith/all permits standard 
or the needed for and adjacent standard in paragraph (b) of the 
definition of valid existing rights in Sec. 761.5, the notice also must 
include a description of the property rights that you claim and the 
basis for your claim.
    (B) If your request relies upon the standard in paragraph (c)(1) of 
the definition of valid existing rights in Sec. 761.5, the notice also 
must include a description of the basis for your claim that the road 
existed when the land came under the protection of Sec. 761.11 or 30 
U.S.C. 1272(e). In addition, the notice must include a description of 
the basis for your claim that you have a legal right to use that road 
for surface coal mining operations.
    (C) If your request relies upon the standard in paragraph (c)(2) of 
the definition of valid existing rights in Sec. 761.5, the notice also 
must include a description of the basis for your claim that a properly 
recorded right of way or easement for a road in that location existed 
when the land came under the protection of Sec. 761.11 or 30 U.S.C. 
1272(e). In addition, the notice must include a description of the basis 
for your claim that, under the document creating the right of way or 
easement, and under any subsequent conveyances, you have a legal right 
to use or construct a road across the right of way or easement to 
conduct surface coal mining operations.
    (iv) If your request relies upon one or more of the standards in 
paragraphs (b), (c)(1), and (c)(2) of the definition of valid existing 
rights in Sec. 761.5, a statement that the agency will not make a 
decision on the merits of your request if, by the close of the comment 
period under this notice or the notice required by paragraph (d)(3) of 
this section, a person with a legal interest in the land initiates 
appropriate legal action in

[[Page 184]]

the proper venue to resolve any differences concerning the validity or 
interpretation of the deed, lease, easement, or other documents that 
form the basis of your claim.
    (v) A description of the procedures that the agency will follow in 
processing your request.
    (vi) The closing date of the comment period, which must be a minimum 
of 30 days after the publication date of the notice.
    (vii) A statement that interested persons may obtain a 30-day 
extension of the comment period upon request.
    (viii) The name and address of the agency office where a copy of the 
request is available for public inspection and to which comments and 
requests for extension of the comment period should be sent.
    (2) The agency must promptly provide a copy of the notice required 
under paragraph (d)(1) of this section to:
    (i) All reasonably locatable owners of surface and mineral estates 
in the land included in your request.
    (ii) The owner of the feature causing the land to come under the 
protection of Sec. 761.11, and, when applicable, the agency with 
primary jurisdiction over the feature with respect to the values causing 
the land to come under the protection of Sec. 761.11. For example, both 
the landowner and the State Historic Preservation Officer must be 
notified if surface coal mining operations would adversely impact any 
site listed on the National Register of Historic Places. As another 
example, both the surface owner and the National Park Service must be 
notified if the request includes non-Federal lands within the authorized 
boundaries of a unit of the National Park System.
    (3) The letter transmitting the notice required under paragraph 
(d)(2) of this section must provide a 30-day comment period, starting 
from the date of service of the letter, and specify that another 30 days 
is available upon request. At its discretion, the agency responsible for 
the determination of valid existing rights may grant additional time for 
good cause upon request. The agency need not necessarily consider 
comments received after the closing date of the comment period.
    (e) How a decision will be made. (1) The agency responsible for 
making the determination of valid existing rights must review the 
materials submitted under paragraph (b) of this section, comments 
received under paragraph (d) of this section, and any other relevant, 
reasonably available information to determine whether the record is 
sufficiently complete and adequate to support a decision on the merits 
of the request. If not, the agency must notify you in writing, 
explaining the inadequacy of the record and requesting submittal, within 
a specified reasonable time, of any additional information that the 
agency deems necessary to remedy the inadequacy.
    (2) Once the record is complete and adequate, the responsible agency 
must determine whether you have demonstrated valid existing rights. The 
decision document must explain how you have or have not satisfied all 
applicable elements of the definition of valid existing rights in Sec. 
761.5. It must contain findings of fact and conclusions, and it must 
specify the reasons for the conclusions.
    (3) Impact of property rights disagreements. This paragraph applies 
only when your request relies upon one or more of the standards in 
paragraphs (b), (c)(1), and (c)(2) of the definition of valid existing 
rights in Sec. 761.5.
    (i) The agency must issue a determination that you have not 
demonstrated valid existing rights if your property rights claims are 
the subject of pending litigation in a court or administrative body with 
jurisdiction over the property rights in question. The agency will make 
this determination without prejudice, meaning that you may refile the 
request once the property rights dispute is finally adjudicated. This 
paragraph applies only to situations in which legal action has been 
initiated as of the closing date of the comment period under paragraph 
(d)(1) or (d)(3) of this section.
    (ii) If the record indicates disagreement as to the accuracy of your 
property rights claims, but this disagreement is not the subject of 
pending litigation in a court or administrative agency of competent 
jurisdiction, the agency must evaluate the merits of the

[[Page 185]]

information in the record and determine whether you have demonstrated 
that the requisite property rights exist under paragraph (a), (c)(1), or 
(c)(2) of the definition of valid existing rights in Sec. 761.5, as 
appropriate. The agency must then proceed with the decision process 
under paragraph (e)(2) of this section.
    (4) The agency must issue a determination that you have not 
demonstrated valid existing rights if you do not submit information that 
the agency requests under paragraph (c)(2) or (e)(1) of this section 
within the time specified or as subsequently extended. The agency will 
make this determination without prejudice, meaning that you may refile a 
revised request at any time.
    (5) After making a determination, the agency must:
    (i) Provide a copy of the determination, together with an 
explanation of appeal rights and procedures, to you, to the owner or 
owners of the land to which the determination applies, to the owner of 
the feature causing the land to come under the protection of Sec. 
761.11, and, when applicable, to the agency with primary jurisdiction 
over the feature with respect to the values that caused the land to come 
under the protection of Sec. 761.11.
    (ii) Publish notice of the determination in a newspaper of general 
circulation in the county in which the land is located. Alternatively, 
the agency may require that you publish this notice and provide a copy 
of the published notice to the agency. We will publish the 
determination, together with an explanation of appeal rights and 
procedures, in the Federal Register if your request includes Federal 
lands within an area listed in Sec. 761.11(a) or (b).
    (f) Administrative and judicial review. A determination that you 
have or do not have valid existing rights is subject to administrative 
and judicial review under Sec. Sec. 775.11 and 775.13 of this chapter.
    (g) Availability of records. The agency responsible for processing a 
request subject to notice and comment under paragraph (d) of this 
section must make a copy of that request available to the public in the 
same manner as the agency, when acting as the regulatory authority, must 
make permit applications available to the public under Sec. 773.6(d) of 
this chapter. In addition, the agency must make records associated with 
that request, and any subsequent determination under paragraph (e) of 
this section, available to the public in accordance with the 
requirements and procedures of Sec. 840.14 or Sec. 842.16 of this 
chapter.

[64 FR 70833, Dec. 17, 1999, as amended at 75 FR 60275, Sept. 29, 2010]



Sec. 761.17  Regulatory authority obligations at time of permit application 

review.

    (a) Upon receipt of an administratively complete application for a 
permit for a surface coal mining operation, or an administratively 
complete application for revision of the boundaries of a surface coal 
mining operation permit, the regulatory authority must review the 
application to determine whether the proposed surface coal mining 
operation would be located on any lands protected under Sec. 761.11.
    (b) The regulatory authority must reject any portion of the 
application that would locate surface coal mining operations on land 
protected under Sec. 761.11 unless:
    (1) The site qualifies for the exception for existing operations 
under Sec. 761.12;
    (2) A person has valid existing rights for the land, as determined 
under Sec. 761.16;
    (3) The applicant obtains a waiver or exception from the 
prohibitions of Sec. 761.11 in accordance with Sec. Sec. 761.13 
through 761.15; or
    (4) For lands protected by Sec. 761.11(c), both the regulatory 
authority and the agency with jurisdiction over the park or place 
jointly approve the proposed operation in accordance with paragraph (d) 
of this section.
    (c) Location verification. If the regulatory authority has 
difficulty determining whether an application includes land within an 
area specified in Sec. 761.11(a) or within the specified distance from 
a structure or feature listed in Sec. 761.11(f) or (g), the regulatory 
authority must request that the Federal, State, or local governmental 
agency with jurisdiction over the protected

[[Page 186]]

land, structure, or feature verify the location.
    (1) The request for location verification must:
    (i) Include relevant portions of the permit application.
    (ii) Provide the agency with 30 days after receipt to respond, with 
a notice that another 30 days is available upon request.
    (iii) Specify that the regulatory authority will not necessarily 
consider a response received after the comment period provided under 
paragraph (c)(1)(ii) of this section.
    (2) If the agency does not respond in a timely manner, the 
regulatory authority may make the necessary determination based on 
available information.
    (d) Procedures for joint approval of surface coal mining operations 
that will adversely affect publicly owned parks or historic places. (1) 
If the regulatory authority determines that the proposed surface coal 
mining operation will adversely affect any publicly owned park or any 
place included in the National Register of Historic Places, the 
regulatory authority must request that the Federal, State, or local 
agency with jurisdiction over the park or place either approve or object 
to the proposed operation. The request must:
    (i) Include a copy of applicable parts of the permit application.
    (ii) Provide the agency with 30 days after receipt to respond, with 
a notice that another 30 days is available upon request.
    (iii) State that failure to interpose an objection within the time 
specified under paragraph (d)(1)(ii) of this section will constitute 
approval of the proposed operation.
    (2) The regulatory authority may not issue a permit for a proposed 
operation subject to paragraph (d)(1) of this section unless all 
affected agencies jointly approve.
    (3) Paragraphs (d)(1) and (d)(2) of this section do not apply to:
    (i) Lands for which a person has valid existing rights, as 
determined under Sec. 761.16.
    (ii) Lands within the scope of the exception for existing operations 
in Sec. 761.12.

[64 FR 70836, Dec. 17, 1999]



Sec. 761.200  Interpretative rule related to subsidence due to underground 

coal mining in areas designated by Act of Congress.

    OSM has adopted the following interpretation of rules promulgated in 
part 761.
    (a) Interpretation of Sec. 761.11--Areas where mining is prohibited 
or limited. Subsidence due to underground coal mining is not included in 
the definition of surface coal mining operations under section 701(28) 
of the Act and Sec. 700.5 of this chapter and therefore is not 
prohibited in areas protected under section 522(e) of the Act.
    (b) [Reserved]

[64 FR 70866, Dec. 17, 1999]



PART 762_CRITERIA FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE COAL MINING 

OPERATIONS--Table of Contents



Sec.
762.1 Scope.
762.4 Responsibility.
762.5 Definitions.
762.11 Criteria for designating lands as unsuitable.
762.12 Additional criteria.
762.13 Land exempt from designation as unsuitable for surface coal 
          mining operations.
762.14 Applicability to lands designated as unsuitable by Congress.
762.15 Exploration on land designated as unsuitable for surface coal 
          mining operations.

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

    Source: 48 FR 41350, Sept. 14, 1983, unless otherwise noted.



Sec. 762.1  Scope.

    This part establishes the minimum criteria to be used in determining 
whether lands should be designated as unsuitable for all or certain 
types of surface coal mining operations.



Sec. 762.4  Responsibility.

    The regulatory authority or OSM shall use the criteria in this part 
for the evaluation of each petition for the designation of areas as 
unsuitable for surface coal mining operations.



Sec. 762.5  Definitions.

    For purposes of this part:

[[Page 187]]

    Fragile lands means areas containing natural, ecologic, scientific, 
or esthetic resources that could be significantly damaged by surface 
coal mining operations. Examples of fragile lands include valuable 
habitats for fish or wildlife, critical habitats for endangered or 
threatened species of animals or plants, uncommon geologic formations, 
paleontological sites, National Natural Landmarks, areas where mining 
may result in flooding, environmental corridors containing a 
concentration of ecologic and esthetic features, and areas of 
recreational value due to high environmental quality.
    Historic lands means areas containing historic, cultural, or 
scientific resources. Examples of historic lands include archeological 
sites, properties listed on or eligible for listing on a State or 
National Register of Historic Places, National Historic Landmarks, 
properties having religious or cultural significance to Native Americans 
or religious groups, and properties for which historic designation is 
pending.
    Natural hazard lands means geographic areas in which natural 
conditions exist which pose or, as a result of surface coal mining 
operations, may pose a threat to the health, safety or welfare of 
people, property or the environment, including areas subject to 
landslides, cave-ins, large or encroaching sand dunes, severe wind or 
soil erosion, frequent flooding, avalanches and areas of unstable 
geology.
    Renewable resource lands means geographic areas which contribute 
significantly to the long-range productivity of water supply or of food 
or fiber products, such lands to include aquifers and aquifer recharge 
areas.
    Substantial legal and financial commitments in a surface coal mining 
operation means significant investments that have been made on the basis 
of a long-term coal contract in power plants, railroads, coal-handling, 
preparation, extraction or storage facilities, and other capital-
intensive activities. Costs of acquiring the coal in place, or the right 
to mine it alone without other significant investments, as described 
above, are not sufficient to constitute substantial legal and financial 
commitments.

[48 FR 41350, Sept. 14, 1983, as amended at 52 FR 18795, May 19, 1987; 
53 FR 26584, July 13, 1988]



Sec. 762.11  Criteria for designating lands as unsuitable.

    (a) Upon petition an area shall be designated as unsuitable for all 
or certain types of surface coal mining operations, if the regulatory 
authority determines that reclamation is not technologically and 
economically feasible under the Act, this chapter or an approved State 
program.
    (b) Upon petition an area may be (but is not required to be) 
designated as unsuitable for certain types of surface coal mining 
operations, if the operations will--
    (1) Be incompatible with existing State or local land use plans or 
programs;
    (2) Affect fragile or historic lands in which the operations could 
result in significant damage to important historic, cultural, 
scientific, or esthetic values or natural systems;
    (3) Affect renewable resource lands in which the operations could 
result in a substantial loss or reduction of long-range productivity of 
water supply or of food or fiber products; or
    (4) Affect natural hazard lands in which the operations could 
substantially endanger life and property, such lands to include areas 
subject to frequent flooding and areas of unstable geology.



Sec. 762.12  Additional criteria.

    (a) A State regulatory authority may establish additional or more 
stringent criteria for determining whether lands within the State should 
be designated as unsuitable for coal mining operations. Such criteria 
shall be approved pursuant to subchapter C of this chapter.
    (b) The Secretary may establish additional criteria for determining 
whether Federal lands should be designated as unsuitable for surface 
mining operations.
    (c) Additional criteria will be determined to be more stringent on 
the

[[Page 188]]

basis of whether they provide for greater protection of the public 
health, safety and welfare or the environment, such that areas beyond 
those specified in the criteria of this part would be designated as 
unsuitable for surface coal mining operations.



Sec. 762.13  Land exempt from designation as unsuitable for surface coal 

mining operations.

    The requirements of this part do not apply to--
    (a) Lands on which surface coal mining operations were being 
conducted on the date of enactment of the Act;
    (b) Lands covered by a permit issued under the Act; or
    (c) Lands where substantial legal and financial commitments in 
surface coal mining operations were in existence prior to January 4, 
1977.



Sec. 762.14  Applicability to lands designated as unsuitable by Congress.

    Pursuant to appropriate petitions, lands listed in Sec. 761.11 of 
this chapter are subject to designation as unsuitable for all or certain 
types of surface coal mining operations under this part and parts 764 
and 769 of this chapter.

[64 FR 70837, Dec. 17, 1999]



Sec. 762.15  Exploration on land designated as unsuitable for surface coal 

mining operations.

    Designation of any area as unsuitable for all or certain types of 
surface coal mining operations pursuant to section 522 of the Act and 
regulations of this subchapter does not prohibit coal exploration 
operations in the area, if conducted in accordance with the Act, this 
chapter, any approved State or Federal program, and other applicable 
requirements. Exploration operations on any lands designated unsuitable 
for surface coal mining operations must be approved by the regulatory 
authority under part 772 of this chapter, to ensure that exploration 
does not interfere with any value for which the area has been designated 
unsuitable for surface coal mining.

[48 FR 41350, Sept. 14, 1983. Redesignated at 64 FR 70837, Dec. 17, 
1999]



PART 764_STATE PROCESSES FOR DESIGNATING AREAS UNSUITABLE FOR SURFACE COAL 

MINING OPERATIONS--Table of Contents



Sec.
764.1 Scope.
764.10 Information collection.
764.11 General process requirements.
764.13 Petitions.
764.15 Initial processing, recordkeeping, and notification requirements.
764.17 Hearing requirements.
764.19 Decision.
764.21 Data base and inventory system requirements.
764.23 Public information.
764.25 Regulatory authority responsibility for implementation.

    Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-34.

    Source: 48 FR 41351, Sept. 14, 1983, unless otherwise noted.



Sec. 764.1  Scope.

    This part establishes minimum procedures and standards to be 
included in each approved State program for designating non-Federal and 
non-Indian lands in a State as unsuitable for all or certain types of 
surface coal mining operations and for terminating designations.



Sec. 764.10  Information collection.

    The information collection requirements contained in Sec. Sec. 
764.21 and 764.25(b) have been approved by the Office of Management and 
Budget under 44 U.S.C. 3507 and assigned clearance number 1029-0030. The 
information required in Sec. 764.21 is necessary to allow the 
regulatory authority to develop a data base and inventory system to 
evaluate whether reclamation is feasible in areas covered by petitions. 
The information required in Sec. 764.25(b) is necessary to allow the 
regulatory authority to determine, when a permit application is filed, 
whether it includes any areas designated as unsuitable for surface coal 
mining.



Sec. 764.11  General process requirements.

    Each State shall establish a process enabling objective decisions to 
be made on which, if any, land areas of the State are unsuitable for all 
or certain

[[Page 189]]

types of surface coal mining operations. These decisions shall be based 
on competent, scientifically sound data and other relevant information. 
This process shall include the requirements listed in this part.



Sec. 764.13  Petitions.

    (a) Right to petition. Any person having an interest which is or may 
be adversely affected has the right to petition the regulatory authority 
to have an area designated as unsuitable for surface coal mining 
operations, or to have an existing designation terminated. For the 
purpose of this Action, a person having an interest which is or may be 
adversely affected must demonstrate how he or she meets an ``injury in 
fact'' test by describing the injury to his or her specific affected 
interests and demonstrate how he or she is among the injured.
    (b) Designation. The regulatory authority shall determine what 
information must be provided by the petitioner to have an area 
designated as unsuitable for surface coal mining operations.
    (1) At a minimum, a complete petition for designation shall 
include--
    (i) The petitioner's name, address, telephone number, and notarized 
signature;
    (ii) Identification of the petitioned areas, including its location 
and size, and a U.S. Geological Survey topographic map outlining the 
perimeter of the petitioned area;
    (iii) An identification of the petitioner's interest which is or may 
be adversely affected by surface coal mining operations, including a 
statement demonstrating how the petitioner satisfies the requirements of 
paragraph (a) of this section;
    (iv) A description of how mining of the area has affected of may 
adversely affect people, land, air, water, or other resources, including 
the petitioner's interests; and
    (v) Allegations of fact and supporting evidence, covering all lands 
in the petition area, which tend to establish that the area is 
unsuitable for all or certain types of surface coal mining operations, 
pursuant to specific criteria of sections 522(a) (2) and (3) of the Act, 
assuming that contemporary mining practices required under applicable 
regulatory programs would be followed if the area were to be mined. Each 
of the allegations of fact should be specific as to the mining 
operation, if known, and the portion(s) of the petitioned area and 
petitioner's interests to which the allegation applies and be supported 
by evidence that tends to establish the validity of the allegations for 
the mining operation or portion of the petitioned areas.
    (2) The regulatory authority may request that the petitioner provide 
other supplementary information which is readily available.
    (c) Termination. The regulatory authority shall determine what 
information must be provided by the petitioner to terminate designations 
of lands as unsuitable for surface coal mining operations.
    (1) At a minimum, a complete petition for termination shall 
include--
    (i) The petitioner's name, address, telephone number, and notarized 
signature;
    (ii) Identification of the petitioned area, including its location 
and size and a U.S. Geological Survey topographic map outlining the 
perimeter of the petitioned area to which the termination petition 
applies;
    (iii) An identification of the petitioner's interest which is or may 
be adversely affected by the designation that the area is unsuitable for 
surface coal mining operations including a statement demonstrating how 
the petitioner satisfies the requirements of paragraph (a) of this 
section;
    (iv) Allegations of facts covering all lands for which the 
termination is proposed. Each of the allegations of fact shall be 
specific as to the mining operation, if any, and to portions of the 
petitioned area and petitioner's interests to which the allegation 
applies. The allegations shall be supported by evidence, not contained 
in the record of the designation proceeding, that tends to establish the 
validity of the allegations for the mining operation or portion of the 
petitioned area, assuming that contemporary mining practices required 
under applicable regulatory programs would be followed were the area to 
be mined. For areas previously

[[Page 190]]

and unsuccessfully proposed for termination, significant new allegations 
of facts and supporting evidence must be presented in the petition. 
Allegations and supporting evidence should also be specific to the basis 
for which the designation was made and tend to establish that the 
designation should be terminated on the following bases:
    (A) Nature or abundance of the protected resource or condition or 
other basis of the designation if the designation was based on criteria 
found in Sec. 762.11(b) of this chapter;
    (B) Reclamation now being technologically and economically feasible 
if the designation was based on the criteria found in Sec. 762.11(a) of 
this chapter; or
    (C) Resources or conditions not being affected by surface coal 
mining operations, or in the case of land use plans, not being 
incompatible with surface coal mining operations during and after 
mining, if the designation was based on the criteria found in Sec. 
762.11(b) of this chapter;
    (2) The State regulatory authority may request that the petitioner 
provide other supplementary information which is readily available.



Sec. 764.15  Initial processing, recordkeeping, and notification requirements.

    (a)(1) Within 30 days of receipt of a petition, the regulatory 
authority shall notify the petitioner by certified mail whether the 
petition is complete under Sec. 764.13 (b) or (c). Complete, for a 
designation or termination petition, means that the information required 
under Sec. 764.13 (b) or (c) has been provided.
    (2) The regulatory authority shall determine whether any identified 
coal resources exist in the area covered by the petition, without 
requiring any showing from the petitioner. If the regulatory authority 
finds there are not any identified coal resources in that area, it shall 
return the petition to the petitioner with a statement of the findings.
    (3) If the regulatory authority determines that the petition is 
incomplete, frivolous, or that the petitioner does not meet the 
requirements of Sec. 764.13(a), it shall return the petition to the 
petitioner with a written statement of the reasons for the determination 
and the categories of information needed to make the petition complete. 
A frivolous petition is one in which the allegations of harm lack 
serious merit.
    (4) When considering a petition for an area which was previously and 
unsuccessfully proposed for designation, the regulatory authority shall 
determine if the new petition presents significant new allegations of 
facts with evidence which tends to establish the allegations. If the 
petition does not contain such material, the regulatory authority may 
choose not to consider the petition and may return the petition to the 
petitioner, with a statement of its findings and a reference to the 
record of the previous designation proceedings where the facts were 
considered.
    (5) The regulatory authority shall notify the person who submits a 
petition of any application for a permit received which includes any 
area covered by the petition.
    (6) The regulatory authority may determine not to process any 
petition received insofar as it pertains to lands for which an 
administratively complete permit application has been filed and the 
first newspaper notice has been published. Based on such a 
determination, the regulatory authority may issue a decision on a 
complete and accurate permit application and shall inform the petitioner 
why the regulatory authority cannot consider the part of the petition 
pertaining to the proposed permit area.
    (b)(1) Promptly after a petition is received, the regulatory 
authority shall notify the general public of the receipt of the petition 
by a newspaper advertisement placed in the locale of the area covered by 
the petition, in the newspaper providing broadest circulation in the 
region of the petitioned area and in any official State register of 
public notices. The regulatory authority shall make copies of the 
petition available to the public and shall provide copies of the 
petition to other interested governmental agencies, intervenors, persons 
with an ownership interest of record in the property, and other persons 
known to the regulatory authority to have an interest in the property. 
Proper notice to persons with

[[Page 191]]

an ownership interest of record in the property shall comply with the 
requirements of applicable State law.
    (2) Promptly after the determination that a petition is complete, 
the regulatory authority shall request submissions from the general 
public of relevant information by a newspaper advertisement placed once 
a week for two consecutive weeks in the locale of the area covered by 
the petition, in the newspaper providing broadest circulation in the 
region of the petitioned area, and in any offical State register of 
public notices.
    (c) Until three days before the regulatory authority holds a hearing 
under Sec. 764.17, any person may intervene in the proceeding by filing 
allegations of facts describing how the designation determination 
directly affects the intervenor, supporting evidence, a short statement 
identifying the petition to which the allegations pertain, and the 
intervenor's name, address and telephone number.
    (d) Beginning from the date a petition is filed, the regulatory 
authority shall compile and maintain a record consisting of all 
documents relating to the petition filed with or prepared by the 
regulatory authority. The regulatory authority shall make the record 
available to the public for inspection free of charge and for copying at 
reasonable cost during all normal hours at the main office of the 
regulatory authority. The regulatory authority shall also maintain 
information at or near the area in which the petitioned land is located 
and make this information available to the public for inspection free of 
charge and for copying at reasonable cost during all normal business 
hours. At a minimum, this information shall include a copy of the 
petition.

[48 FR 41351, Sept. 14, 1983, as amended at 52 FR 49323, 49324, Dec. 30, 
1987]



Sec. 764.17  Hearing requirements.

    (a) Within 10 months after receipt of a complete petition, the 
regulatory authority shall hold a public hearing in the locality of the 
area covered by the petition. If all petitioners and intervenors agree, 
the hearing need not be held. The regulatory authority may subpoena 
witnesses as necessary. The hearing may be conducted with cross-
examination of expert witnesses only. A record of the hearing shall be 
made and preserved according to State law. No person shall bear the 
burden of proof or persuasion. All relevant parts of the data base and 
inventory system and all public comments received during the public 
comment period shall be included in the record and considered by the 
regulatory authority in its decision on the petition.
    (b)(1) The regulatory authority shall give notice of the date, time, 
and location of the hearing to:
    (i) Local, State, and Federal agencies which may have an interest in 
the decision on the petition;
    (ii) The petitioner and the intervenors; and
    (iii) Any person known by the regulatory authority to have a 
property interest in the petitioned area. Proper notice to persons with 
an ownership interest of record shall comply with the requirements of 
applicable State law.
    (2) Notice of the hearing shall be sent by certified mail to 
petitioners and intervenors, and by regular mail to government agencies 
and property owners involved in the proceeding, and postmarked not less 
than 30 days before the scheduled date of the hearing.
    (c) The regulatory authority shall notify the general public of the 
date, time, and location of the hearing by placing a newspaper 
advertisement once a week for 2 consecutive weeks in the locale of the 
area covered by the petition and once during the week prior to the 
public hearing. The consecutive weekly advertisement must begin between 
4 and 5 weeks before the scheduled date of the public hearing.
    (d) The regulatory authority may consolidate in a single hearing the 
hearings required for each of several petitions which relate to areas in 
the same locale.
    (e) Prior to designating any land areas as unsuitable for surface 
coal mining operations, the regulatory authority shall prepare a 
detailed statement, using existing and available information on the 
potential coal resources of the area, the demand for coal resources, and 
the impact of such designation on the environment, the economy, and the 
supply of coal.

[[Page 192]]

    (f) In the event that all petitioners and intervenors stipulate 
agreement prior to the hearing, the petition may be withdrawn from 
consideration.



Sec. 764.19  Decision.

    (a) In reaching its decision, the regulatory authority shall use--
    (1) The information contained in the data base and inventory system;
    (2) Information provided by other governmental agencies;
    (3) The detailed statement when it is prepared under Sec. 
764.17(e); and
    (4) Any other relevant information submitted during the comment 
period.
    (b) A final written decision shall be issued by the regulatory 
authority, including a statemtent of reasons, within 60 days of 
completion of the public hearing, or, if no public hearing is held, then 
within 12 months after receipt of the complete petition. The regulatory 
authority shall simultaneously send the decision by certified mail to 
the petitioner and intervenors and by regular mail to all other persons 
involved in the proceeding.
    (c) The decision of the State regulatory authority with respect to a 
petition, or the failure of the regulatory authority to act within the 
time limits set forth in this section, shall be subject to judicial 
review by a court of competent jurisdiction in accordance with State law 
under section 526(e) of the Act and Sec. 775.13 of this chapter. All 
relevant portions of the data base, inventory system, and public 
comments received during the public comment period set by the regulatory 
authority shall be considered and included in the record of the 
administrative proceeding.



Sec. 764.21  Data base and inventory system requirements.

    (a) The regulatory authority shall develop a data base and inventory 
system which will permit evaluation of whether reclamation is feasible 
in areas covered by petitions.
    (b) The regulatory authority shall include in the system information 
relevant to the criteria in Sec. 762.11 of this chapter, including, but 
not limited to, information received from the United States Fish and 
Wildlife Service, the State Historic Preservation Officer, and the 
agency administering section 127 of the Clean Air Act, as amended (42 
U.S.C. 7470 et seq.).
    (c) The regulatory authority shall add to the data base and 
inventory system information--
    (1) On potential coal resources of the State, demand for those 
resources, the environment, the economy and the supply of coal, 
sufficient to enable the regulatory authority to prepare the statements 
required by Sec. 764.17(e); and
    (2) That becomes available from petitions, publications, 
experiments, permit application, mining and reclamation operations, and 
other sources.



Sec. 764.23  Public information.

    The regulatory authority shall:
    (a) Make the information in the data base and inventory system 
developed under Sec. 764.21 available to the public for inspection free 
of charge and for copying at reasonsable cost, except that specific 
information relating to location of properties proposed to be nominated 
to, or listed in, the National Register of Historic Places need not be 
disclosed if the regulatory authority determines that the disclosure of 
such information would create a risk of destruction or harm to such 
properties;
    (b) Provide information to the public on the petition procedures 
necessary to have an area designated as unsuitable for all or certain 
types of surface coal mining operations or to have designations 
terminated and describe how the inventory and data base system can be 
used.



Sec. 764.25  Regulatory authority responsibility for implementation.

    (a) The regulatory authority shall not issue permits which are 
inconsistent with designations made pursuant to part 761, 762, or 764 of 
this chapter.
    (b) The regulatory authority shall maintain a map or other unified 
and cumulative record of areas designated unsuitable for all or certain 
types of surface coal mining operations.
    (c) The regulatory authority shall make available to any person any 
information within its control regarding designations, including mineral 
or elemental content which is potentially toxic in the environment but 
excepting

[[Page 193]]

proprietary information on the chemical and physical properties of the 
coal.



PART 769_PETITION PROCESS FOR DESIGNATION OF FEDERAL LANDS AS UNSUITABLE FOR 

ALL OR CERTAIN TYPES OF SURFACE COAL MINING OPERATIONS AND FOR TERMINATION OF 

PREVIOUS DESIGNATIONS--Table of Contents



Sec.
769.1 Scope.
769.10 Information collection
769.11 Who may submit a petition.
769.12 Where to submit petitions.
769.13 Contents of petitions.
769.14 Initial processing, recordkeeping, and notification requirements.
769.15 Intervention.
769.16 Public information.
769.17 Hearing requirements.
769.18 Decisions on petitions.
769.19 Regulatory policy.

    Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-34.

    Source: 48 FR 41354, Sept. 14, 1983, unless otherwise noted.



Sec. 769.1  Scope.

    This part establishes minimum procedures and standards for 
designating Federal lands as unsuitable for all or certain types of 
surface coal mining operations and for terminating designations pursuant 
to petition.



Sec. 769.10  Information collection.

    The information collection requirements in this part do not require 
approval of the Office of Management and Budget under 44 U.S.C. 3507 
because there are fewer than 10 respondents annually.



Sec. 769.11  Who may submit a petition.

    Any person having an interest which is or may be adversely affected 
by surface coal mining operations to be conducted on Federal lands may 
petition the Secretary to have an area designated as unsuitable for all 
or certain types of surface coal mining operations, or to have an 
existing designation terminated. This right does not apply to areas set 
aside from surface coal mining operations under laws other than the Act. 
For the purpose of this section, a person having an interest which is or 
may be adversely affected must demonstrate how he or she meets an 
``injury in fact'' test by describing the injury to his or her specific 
affected interests and demonstrate how he or she is among the injured.



Sec. 769.12  Where to submit petitions.

    Each petition to have an area of Federal lands designated as 
unsuitable or to terminate an existing designation shall be submitted to 
the Director of the OSM Field Office responsible for that area where the 
Federal lands are located.



Sec. 769.13  Contents of petitions.

    (a) Designation. The only information that a petitioner need provide 
to designate lands is that required under Sec. 764.13(b) of this 
chapter.
    (b) Termination. The only information that a petitioner need provide 
to terminate a designation is that required by Sec. 764.13(c) of this 
chapter.



Sec. 769.14  Initial processing, recordkeeping, and notification requirements.

    (a)(1) Within 30 days of receipt of a petition, OSMRE shall 
determine whether the petition is complete and not frivolous. OSMRE may 
request other supplementary information that is readily available to be 
provided by the petitioner. Any request for such supplementary 
information from the petitioner shall not affect OSMRE's determination 
that the petition is complete for further processing.
    (2) Complete, (i) for a designation petition, means that (A) all 
information required under Sec. 764.13(b) of this chapter has been 
provided and (B) the information submitted by the petitioner contains 
significant new allegations of fact and supporting evidence not 
considered in any previous unsuccessful petition of Federal lands review 
conducted under Section 522(b) of the Act, that tends to establish that 
the lands are unsuitable for surface coal mining operations; and (ii) 
for a termination petition, means that all information required under 
Sec. 764.13(c) has been provided.
    (3) Frivolous, for a designation or termination petition, means 
that:

[[Page 194]]

    (i) The allegations of harm lack serious merit; or
    (ii) Available information shows that no ``mineable'' coals 
resources exist in the petitioned area or that the petitioned area is 
not or could not be subject to related surface coal mining operations 
and surface impacts incident to an underground coal mine or an adjoining 
surface mine (mineable coal is coal with development potential as mapped 
or reported by the Bureau of Land Management under 43 CFR 3420.1-
4(e)(1); and privately owned coal under land owned by the United 
States).
    (b) When the Director finds that the petition is incomplete or 
frivolous, he or she shall reject the petition with a written statement 
of reasons and advise the petitioner, via certified mail, that the 
petition may be reconsidered upon resubmittal with deficiencies cured.
    (c) When the Director finds that the petition is complete and not 
frivolous, he or she shall initiate the petition review and so advise 
the petitioner via certified mail.
    (d)(1) Within 2 weeks after accepting the petition for further 
processing, OSM shall send a copy of the petition to the authorized 
officer of the land management agency for the officer's recommendation 
on the petition.
    (2) The authorized officer of the appropriate Federal land 
management agency shall furnish a recommendation on the petition to OSM 
within 30 days of its receipt, if the area covered by the petition has 
been included in a completed Federal lands review or within 9 months, if 
the area has not been included in a Federal lands review.
    (e) Promptly after accepting a petition for further processing, OSM 
shall circulate copies of the petition to, and request submissions of 
relevant information from, other interested governmental agencies, the 
petitioner, intervenors, and any person, known to OSM to have an 
ownership interest in the property.
    (f) Where lands administered by the Department of the Interior and 
other Federal land management agencies are contiguous or intermingled or 
where the Department's resource management could affect resources on the 
other's land, the Director of OSM shall refer a copy of the petition to 
the other Federal land management agency and shall consider the agency's 
recommendations about designating those lands unsuitable for all or 
certain types of surface coal mining or terminating such designations.
    (g) OSM may determine not to process any petition received insofar 
as it pertains to lands for which an administratively complete permit 
application has been filed and the first newspaper notice has been 
published. Based on such a determination, OSM may issue a decision on a 
complete and accurate permit application and shall inform the petitioner 
why OSM cannot consider the part of the petition pertaining to the 
proposed permit area.

[48 FR 41354, Sept. 14, 1983, as amended at 52 FR 49324, Dec. 30, 1987]



Sec. 769.15  Intervention.

    Up to 3 days before the OSM holds a hearing on a petition under 
Sec. 769.17, any person may intervene in the proceeding by filing a 
statement describing how the designation directly affects the 
intervenor, allegations of facts and supporting evidence, a short 
statement identifying the petition to which the allegations pertain, and 
the intervenor's name, address and telephone number.



Sec. 769.16  Public information.

    (a) Promptly after determining that a petition is complete, the 
Director shall notify the general public of the receipt of the petition 
and request submissions of the relevant information by a newspaper 
advertisement placed once a week for two consecutive weeks in the 
newspaper providing broadest circulation in the region of the petitioned 
area, and in the Federal Register. The advertisement and Federal 
Register notice shall include a description of the boundaries of the 
petitioned area, the allegations of fact, and information regarding 
where the petition is available for public review.
    (b)(1) Beginning immediately after a petition is filed, OSM shall 
compile and maintain a record consisting of all documents relating to 
the petition filed with or prepared by OSM with the exception of that 
information excluded under Sec. 769.16(b)(2). OSM shall make the

[[Page 195]]

record available to the public for inspection free of charge and for 
copying at a reasonable cost during all normal business hours at its 
Washington, D.C. office. OSM shall also maintain information in or near 
the area in which the petitioned land is located; this information shall 
be available for public inspection, free of charge, and for copying at 
reasonable cost during all normal business hours. At a minimum, this 
information shall include a copy of the petition.
    (2) OSM need not make available to any person or entity the specific 
location of property proposed to be nominated to be listed or listed in 
the National Register of Historic Places if it is determined that 
disclosure of that information would create a risk of destruction or 
harm to such properties. Withheld information must be disclosed when a 
designation of unsuitability would rest primarily on an allegation based 
on that information.



Sec. 769.17  Hearing requirements.

    (a) Within 10 months after receipt of a complete petition, OSM shall 
hold a public hearing in the locality of the area covered by the 
petition. If all petitioners and intervenors agree, the hearing need not 
be held. OSM may subpoena witnesses as necessary. The hearing may be 
conducted with cross-examination of expert witnesses only. A record of 
the hearing shall be made and preserved. No person shall bear the burden 
of proof or persuasion. All relevant parts of the data base and 
inventory system and all public comments received during the public 
comment period shall be included in the record and considered by OSM in 
deciding the petition.
    (b)(1) OSM shall give notice of the date, time, and location of the 
hearing to:
    (i) Local, State, and Federal agencies which may have an interest in 
the decision on the petition;
    (ii) The petitioner and the intervenors; and
    (iii) Any person known by OSM to have a property interest in the 
petitioned area.
    (2) Notice of the hearing shall be sent by certified mail to the 
petitioner and intervenors, and by regular mail to other persons 
involved in the proceeding, and postmarked not less than 30 days before 
the scheduled date of the hearing.
    (3) OSM shall notify the general public of the date, time, and 
location of the hearing by placing a newspaper advertisement once a week 
for 2 consecutive weeks prior to the scheduled date of the public 
hearing in the locale of the area covered by the petition and once 
during the week prior to the scheduled date of the public hearing. The 
consecutive weekly advertisements must begin between 4 and 5 weeks prior 
to the scheduled date of the public hearing.
    (c) OSM may consolidate into a single hearing the hearings required 
for each of several petitions which relate to areas in the same locale.
    (d) If any petitions relates to an area of Federal lands which is 
the subject of a pending surface coal mining and reclamation operations 
permit application, OSM may, with consent of all petitioners and 
intervenors, coordinate the hearing on the petition required under 
paragraph (a) of this section with any hearing on the permit application 
or informal conference held in accordance with section 513(b) of the Act 
and Sec. 740.13 of this chapter on the permit application. Nothing in 
this paragraph shall relieve an applicant for a permit from the burden 
of establishing that his or her application is in compliance with the 
requirements of the Federal lands program.
    (e) Prior to designating any lands as unsuitable for surface coal 
mining operations, OSM shall issue a detailed statement on the abundance 
of coal resources of the area, the demand for coal resources, and the 
impact of such designation on the environment, the economy, and the 
supply of coal.



Sec. 769.18  Decisions on petitions.

    (a) In reaching his or her decision, the Director shall use the 
information and consider the recommendation provided by the Federal land 
management agency, information provided by other governmental agencies, 
the detailed statement, when it is prepared under

[[Page 196]]

Sec. 769.17(e), and any other relevant information submitted during the 
comment period.
    (b) A final written decision shall be issued by the Director, 
including a statement of reasons, within 60 days of completion of the 
public hearing, or if no public hearing is held, within 12 months after 
receipt of the complete petition. The Director shall simultaneously send 
the decision by certified mail to the petitioner and the intervenors and 
by regular mail to all other persons involved in the proceeding.
    (c) If the Director concurs with the recommendation of the surface 
managing agency, the Director's decision becomes final. If the Director 
does not concur with the recommendation, he or she shall notify the 
Director of the surface managing agency within 30 days after the public 
hearing, if any. The decision at the same time will be referred to the 
Secretary through respective agency heads for resolution and issuance of 
a final decision within 60 days after the hearing, if any.
    (d) A final decision of the Director or the Secretary is subject to 
judicial review in accordance with Sec. 775.13 of this chapter and 
section 526 (a)(2) and (b) of the Act.



Sec. 769.19  Regulatory policy.

    Once an area of Federal lands is designated as unsuitable for all or 
certain types of surface coal mining operations, any permit or lease 
shall be conditioned in a manner so as to limit or prohibit surface coal 
mining operations on the designated areas in accordance with the 
designation.

[[Page 197]]



SUBCHAPTER G_SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS AND 

           COAL EXPLORATION SYSTEMS UNDER REGULATORY PROGRAMS



PART 772_REQUIREMENTS FOR COAL EXPLORATION--Table of Contents



Sec.
772.1 Scope and purpose.
772.10 Information collection.
772.11 Notice requirements for exploration removing 250 tons of coal or 
          less.
772.12 Permit requirements for exploration that will remove more than 
          250 tons of coal or that will occur on lands designated as 
          unsuitable for surface coal mining operations.
772.13 Coal exploration compliance duties.
772.14 Commercial use or sale.
772.15 Public availability of information.

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.

    Source: 48 FR 40634, Sept. 8, 1983, unless otherwise noted.



Sec. 772.1  Scope and purpose.

    This part establishes the requirements and procedures applicable to 
coal exploration operations on all lands except for Federal lands 
subject to the requirements of 43 CFR parts 3480-3487.

[48 FR 40634, Sept. 8, 1983, as amended at 48 FR 44779, Sept. 30, 1983]



Sec. 772.10  Information collection.

    (a) In accordance with 44 U.S.C. 3501 et seq., the Office of 
Management and Budget (OMB) has approved the information collection and 
recordkeeping requirements of this part. The OMB clearance number is 
1029-0112. OSM and State regulatory authorities use the information 
collected under this part to maintain knowledge of coal exploration 
activities, evaluate the need for an exploration permit, and ensure that 
exploration activities comply with the environmental protection, public 
participation, and reclamation requirements of parts 772 and 815 of this 
chapter and 30 U.S.C. 1262. Persons seeking to conduct coal exploration 
must respond to obtain a benefit.
    (b) OSM estimates that the combined public reporting and 
recordkeeping burden for all respondents under this part will average 11 
hours per notice or application submitted, including time spent 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the collection 
of information. Specifically, OSM estimates that preparation of a notice 
of intent to explore under Sec. 772.11 will require an average of 10 
hours per notice, preparation and processing of an application for coal 
exploration under Sec. 772.12 will require an average of 103 hours per 
application, compliance with Sec. 772.14 will require an average of 18 
hours per application, and recordkeeping and information collection 
under Sec. 772.15 will require an average of approximately 1 hour per 
response. Send comments regarding this burden estimate or any other 
aspect of these information collection requirements, including 
suggestions for reducing the burden, to the Office of Surface Mining 
Reclamation and Enforcement, Information Collection Clearance Officer, 
1951 Constitution Avenue, N.W., Washington, DC 20240; and the Office of 
Management and Budget, Office of Information and Regulatory Affairs, 
Attention: Interior Desk Officer, 725 17th Street, N.W., Washington, DC 
20503. Please refer to OMB Control Number 1029-0112 in any 
correspondence.

[64 FR 70837, Dec. 17, 1999]



Sec. 772.11  Notice requirements for exploration removing 250 tons of coal or 

less.

    (a) Any person who intends to conduct coal exploration operations 
outside a permit area during which 250 tons or less of coal will be 
removed, shall, before conducting the exploration, file with the 
regulatory authority a written notice of intention to explore. 
Exploration which will take place on lands designated as unsuitable for 
surface coal mining operations under subchapter F of this chapter, shall 
be subject to the permitting requirements under Sec. 772.12. 
Exploration conducted under a notice of intent

[[Page 198]]

shall be subject to the requirements prescribed under Sec. 772.13.
    (b) The notice shall include--
    (1) The name, address, and telephone number of the person seeking to 
explore;
    (2) The name, address, and telephone number of the person's 
representative who will be present at, and responsible for, conducting 
the exploration activities;
    (3) A narrative describing the proposed exploration area or a map at 
a scale of 1:24,000, or greater, showing the proposed area of 
exploration and the general location of drill holes and trenches, 
existing and proposed roads, occupied dwellings, topographic features, 
bodies of surface water, and pipelines;
    (4) A statement of the period of intended exploration; and
    (5) A description of the method of exploration to be used and the 
practices that will be followed to protect the environment and to 
reclaim the area from adverse impacts of the exploration activities in 
accordance with the applicable requirements of part 815 of this chapter.

[48 FR 40634, Sept. 8, 1983, as amended at 53 FR 52949, Dec. 29, 1988]



Sec. 772.12  Permit requirements for exploration that will remove more than 

250 tons of coal or that will occur on lands designated as unsuitable for 

surface coal mining operations.

    (a) Exploration permit. Any person who intends to conduct coal 
exploration outside a permit area during which more than 250 tons of 
coal will be removed or which will take place on lands designated as 
unsuitable for surface mining under subchapter F of this chapter, shall, 
before conducting the exploration, submit an application and obtain 
written approval from the regulatory authority in an exploration permit. 
Such exploration shall be subject to the requirements prescribed under 
Sec. Sec. 772.13 and 772.14.
    (b) Application information. Each application for an exploration 
permit shall contain, at a minimum, the following information:
    (1) The name, address, and telephone number of the applicant.
    (2) The name, address and telephone number of the applicant's 
representative who will be present at, and responsible for, conducting 
the exploration activities.
    (3) A narrative describing the proposed exploration area.
    (4) A narrative description of the methods and equipment to be used 
to conduct the exploration and reclamation.
    (5) An estimated timetable for conducting and completing each phase 
of the exploration and reclamation.
    (6) The estimated amount of coal to be removed and a description of 
the methods to be used to determine the amount.
    (7) A statement of why extraction of more than 250 tons of coal is 
necessary for exploration.
    (8) A description of--
    (i) Cultural or historical resources listed on the National Register 
of Historic Places;
    (ii) Cultural or historical resources known to be eligible for 
listing on the National Register of Historic Places; and
    (iii) Known archeological resources located within the proposed 
exploration area.
    (iv) Any other information which the regulatory authority may 
require regarding known or unknown historic or archeological resources.
    (9) A description of any endangered or threatened species listed 
pursuant to the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) 
identified within the proposed exploration area.
    (10) A description of the measures to be used to comply with the 
applicable requirements of part 815 of this chapter.
    (11) The name and address of the owner of record of the surface land 
and of the subsurface mineral estate of the area to be explored.
    (12) A map or maps at a scale of 1:24,000, or larger, showing the 
areas of land to be disturbed by the proposed exploration and 
reclamation. The map shall specifically show existing roads, occupied 
dwellings, topographic and drainage features, bodies of surface

[[Page 199]]

water, and pipelines; proposed locations of trenches, roads, and other 
access routes and structures to be constructed; the location of proposed 
land excavations; the location of exploration holes or other drill holes 
or underground openings; the location of excavated earth or waste-
material disposal areas; and the location of critical habitats of any 
endangered or threatened species listed pursuant to the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.).
    (13) If the surface is owned by a person other than the applicant, a 
description of the basis upon which the applicant claims the right to 
enter that land for the purpose of conducting exploration and 
reclamation.
    (14) For any lands listed in Sec. 761.11 of this chapter, a 
demonstration that, to the extent technologically and economically 
feasible, the proposed exploration activities have been designed to 
minimize interference with the values for which those lands were 
designated as unsuitable for surface coal mining operations. The 
application must include documentation of consultation with the owner of 
the feature causing the land to come under the protection of Sec. 
761.11 of this chapter, and, when applicable, with the agency with 
primary jurisdiction over the feature with respect to the values that 
caused the land to come under the protection of Sec. 761.11 of this 
chapter.
    (c) Public notice and opportunity to comment. Public notice of the 
application and opportunity to comment shall be provided as follows:
    (1) Within such time as the regulatory authority may designate, the 
applicant shall provide public notice of the filing of an 
administratively complete application with the regulatory authority in a 
newspaper of general circulation in the county of the proposed 
exploration area.
    (2) The public notice shall state the name and address of the person 
seeking approval, the filing date of the application, the address of the 
regulatory authority where written comments on the application may be 
submitted, the closing date of the comment period, and a description of 
the area of exploration.
    (3) Any person having an interest which is or may be adversely 
affected shall have the right to file written comments on the 
application within reasonable time limits.
    (d) Decisions on applications for exploration. (1) The regulatory 
authority shall act upon an administratively complete application for a 
coal exploration permit and any written comments within a reasonable 
period of time. The approval of a coal exploration permit may be based 
only on a complete and accurate application.
    (2) The regulatory authority shall approve a complete and accurate 
application for a coal exploration permit filed in accordance with this 
part if it finds, in writing, that the applicant has demonstrated that 
the exploration and reclamation described in the application will--
    (i) Be conducted in accordance with this part, part 815 of this 
chapter, and the applicable provisions of the regulatory program;
    (ii) Not jeopardize the continued existence of an endangered or 
threatened species listed pursuant to section 4 of the Endangered 
Species Act of 1973, 16 U.S.C. 1533, or result in the destruction or 
adverse modification of critical habitat of those species;
    (iii) Not adversely affect any cultural or historical resources 
listed on the National Register of Historic Places pursuant to the 
National Historic Preservation Act, 16 U.S.C. 470 et seq., unless the 
proposed exploration has been approved by both the regulatory authority 
and the agency with jurisdiction over the resources to be affected; and
    (iv) With respect to exploration activities on any lands protected 
under Sec. 761.11 of this chapter, minimize interference, to the extent 
technologically and economically feasible, with the values for which 
those lands were designated as unsuitable for surface coal mining 
operations. Before making this finding, the regulatory authority must 
provide reasonable opportunity to the owner of the feature causing the 
land to come under the protection of Sec. 761.11 of this chapter, and, 
when applicable, to the agency with primary jurisdiction over the 
feature with respect to the values that caused the land to

[[Page 200]]

come under the protection of Sec. 761.11 of this chapter, to comment on 
whether the finding is appropriate.
    (3) Terms of approval issued by the regulatory authority shall 
contain conditions necessary to ensure that the exploration and 
reclamation will be conducted in compliance with this part, part 815 of 
this chapter, and the regulatory program.
    (e) Notice and hearing. (1) The regulatory authority shall notify 
the applicant, the appropriate local government officials, and other 
commenters on the application, in writing, of its decision on the 
application. If the application is disapproved, the notice to the 
applicant shall include a statement of the reason for disapproval. 
Public notice of the decision on each application shall be posted by the 
regulatory authority at a public office in the vicinity of the proposed 
exploration operations.
    (2) Any person having an interest which is or may be adversely 
affected by a decision of the regulatory authority pursuant to paragraph 
(e)(1) of this section shall have the opportunity for administrative and 
judicial review as set forth in part 775 of this chapter.

[48 FR 40634, Sept. 8, 1983, as amended at 52 FR 4262, Feb. 10, 1987; 53 
FR 52949, Dec. 29, 1988; 64 FR 70837, Dec. 17, 1999]



Sec. 772.13  Coal exploration compliance duties.

    (a) All coal exploration and reclamation activities that 
substantially disturb the natural land surface shall be conducted in 
accordance with the coal exploration requirements of this part, part 815 
of this chapter, the regulatory program, and any exploration permit term 
or condition imposed by the regulatory authority.
    (b) Any person who conducts any coal exploration in violation of the 
provisions of this part, part 815 of this chapter, the regulatory 
program, or any exploration permit term or condition imposed by the 
regulatory authority shall be subject to the provisions of section 518 
of the Act, subchapter L of this chapter, and the applicable inspection 
and enforcement provisions of the regulatory program.



Sec. 772.14  Commercial use or sale.

    (a) Except as provided under Sec. Sec. 772.14(b) and 700.11(a)(5), 
any person who intends to commercially use or sell coal extracted during 
coal exploration operations under an exploration permit, shall first 
obtain a permit to conduct surface coal mining operations for those 
operations from the regulatory authority under parts 773 through 785 of 
this chapter.
    (b) With the prior written approval of the regulatory authority, no 
permit to conduct surface coal mining operations is required for the 
sale or commercial use of coal extracted during exploration operations 
if such sale or commercial use is for coal testing purposes only. The 
person conducting the exploration shall file an application for such 
approval with the regulatory authority. The application shall 
demonstrate that the coal testing is necessary for the development of a 
surface coal mining and reclamation operation for which a surface coal 
mining operations permit application is to be submitted in the near 
future, and that the proposed commercial use or sale of coal extracted 
during exploration operations is solely for the purpose of testing the 
coal. The application shall contain the following:
    (1) The name of the testing firm and the locations at which the coal 
will be tested.
    (2) If the coal will be sold directly to, or commercially used 
directly by, the intended end user, a statement from the intended end 
user, or if the coal is sold indirectly to the intended end user through 
an agent or broker, a statement from the agent or broker. The statement 
shall include:
    (i) The specific reason for the test, including why the coal may be 
so different from the intended user's other coal supplies as to require 
testing;
    (ii) The amount of coal necessary for the test and why a lesser 
amount is not sufficient; and
    (iii) A description of the specific tests that will be conducted.
    (3) Evidence that sufficient reserves of coal are available to the 
person conducting exploration or its principals for future commercial 
use or sale to the intended end user, or agent or broker of such user 
identified above, to

[[Page 201]]

demonstrate that the amount of coal to be removed is not the total 
reserve, but is a sampling of a larger reserve.
    (4) An explanation as to why other means of exploration, such as 
core drilling, are not adequate to determine the quality of the coal 
and/or the feasibility of developing a surface coal mining operation.

[53 FR 52949, Dec. 29, 1988]



Sec. 772.15  Public availability of information.

    (a) Except as provided in paragraph (b) of this section, all 
information submitted to the regulatory authority under this part shall 
be made available for public inspection and copying at the local offices 
of the regulatory authority closest to the exploration area.
    (b) The regulatory authority shall keep information confidential if 
the person submitting it requests in writing, at the time of submission, 
that it be kept confidential and the information concerns trade secrets 
or is privileged commercial or financial information relating to the 
competitive rights of the persons intending to conduct coal exploration.
    (c) Information requested to be held as confidential under paragraph 
(b) of this section shall not be made publicly available until after 
notice and opportunity to be heard is afforded persons both seeking and 
opposing disclosure of the information.



PART 773_REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING--Table of Contents



Sec.
773.1 Scope and purpose.
773.3 Information collection.
773.4 Requirements to obtain permits.
773.5 Regulatory coordination with requirements under other laws.
773.6 Public participation in permit processing.
773.7 Review of permit applications.
773.8 General provisions for review of permit application information 
          and entry of information into AVS.
773.9 Review of applicant and operator information.
773.10 Review of permit history.
773.11 Review of compliance history.
773.12 Permit eligibility determination.
773.13 Unanticipated events or conditions at remaining sites.
773.14 Eligibility for provisionally issued permits.
773.15 Written findings for permit application approval.
773.16 Performance bond submittal.
773.17 Permit conditions.
773.19 Permit issuance and right of renewal.
773.21 Initial review and finding requirements for improvidently issued 
          permits.
773.22 Notice requirements for improvidently issued permits.
773.23 Suspension or rescission requirements for improvidently issued 
          permits.
773.25 Who may challenge ownership or control listings and findings.
773.26 How to challenge an ownership or control listing or finding.
773.27 Burden of proof for ownership or control challenges.
773.28 Written agency decision on challenges to ownership or control 
          listings or findings.

    Authority: 30 U.S.C. 1201 et seq., 16 U.S.C. 470 et seq., 16 U.S.C. 
661 et seq., 16 U.S.C. 703 et seq., 16 U.S.C. 668a et seq., 16 U.S.C. 
469 et seq., and 16 U.S.C. 1531 et seq.

    Source: 48 FR 44391, Sept. 28, 1983, unless otherwise noted.



Sec. 773.1  Scope and purpose.

    This part provides minimum requirements for permits and permit 
processing and covers obtaining and reviewing permits; coordinating with 
other laws; public participation; permit decision and notification; 
permit conditions; and permit term and right of renewal.



Sec. 773.3  Information collection.

    The collections of information contained in part 773 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0115. The information collected 
will be used by the regulatory authority in processing surface coal 
mining permit applications. Persons intending to conduct surface coal 
mining operations must respond to obtain a benefit. A Federal agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. Response is required to obtain a benefit in accordance 
with SMCRA. Send comments regarding burden estimates or any other aspect 
of this collection of information, including suggestions for reducing 
the burden, to the

[[Page 202]]

Office of Surface Mining Reclamation and Enforcement, Information 
Collection Clearance Officer, Room 202--SIB, 1951 Constitution Avenue, 
NW., Washington, DC 20240.

[72 FR 68029, Dec. 3, 2007]



Sec. 773.4  Requirements to obtain permits.

    (a) All operations. On and after 8 months from the effective date of 
a permanent regulatory program within a State, no person shall engage in 
or carry out any surface coal mining operations, unless such person has 
first obtained a permit issued by the regulatory authority except as 
provided for in paragraph (b) of this section. A permittee need not 
renew the permit if no surface coal mining operations will be conducted 
under the permit and solely reclamation activities remain to be done. 
Obligations established under a permit continue until completion of 
surface coal mining and reclamation operations, regardless of whether 
the authorization to conduct surface coal mining operations has expired 
or has been terminated, revoked, or suspended.
    (b) Continuation of initial program operations. (1) If a State 
program receives final disapproval under part 732 of this chapter, 
including judicial review of the disapproval, existing surface coal 
mining and reclamation operations may continue pursuant to the 
provisions of subchapter B of this chapter and section 502 of the Act 
until promulgation of a complete Federal program for the State. During 
this period, no new permits for surface coal mining and reclamation 
operations shall be issued by the State. Permits that lapse during this 
period may continue in full force and effect within the specified permit 
area until promulgation of a Federal program for the State.
    (2) Except for coal preparation plants separately authorized to 
operate under 30 CFR 785.21(e), a person conducting surface coal mining 
operations, under a permit issued or amended by the regulatory authority 
in accordance with the requirements of section 502 of the Act, may 
conduct such operations beyond the period prescribed in paragraph (a) of 
this section if--
    (i) Not later than 2 months following the effective date of a 
permanent regulatory program, regardless of litigation contesting that 
program, an application for a permanent regulatory program permit is 
filed for any operation to be conducted after the expiration of 8 months 
from such effective date in accordance with the provisions of the 
regulatory program;
    (ii) The regulatory authority has not yet rendered an initial 
administrative decision approving or disapproving the permit; and
    (iii) The surface coal mining and reclamation operation is conducted 
in compliance with the requirements of the Act, subchapter B of this 
chapter, applicable State statutes and regulations, and all terms and 
conditions of the initial program authorization or permit.
    (3) No new initial program permits may be issued after the effective 
date of a State program unless the application was received prior to 
such date.
    (c) Continued operations under Federal program permits. (1) A permit 
issued by the Director pursuant to a Federal program for a State shall 
be valid under any superseding State program approved by the Secretary.
    (2) The Federal permittee shall have the right to apply to the State 
regulatory authority for a State permit to supersede the Federal permit.
    (3) The State regulatory authority may review a permit issued 
pursuant to the superseded Federal program to determine that the 
requirements of the Act and the approved State program are not violated 
by the Federal permit, and to the extent that the approved State program 
contains additional requirements not contained in the Federal program 
for the State, the State regulatory authority shall--
    (i) Inform the permittee in writing;
    (ii) Provide the permittee an opportunity for a hearing;
    (iii) Provide the permittee a reasonable opportunity to resubmit the 
permit application in whole or in part, as appropriate; and
    (iv) Provide the permittee a reasonable time to conform ongoing 
surface coal mining and reclamation operations to the requirements of 
the State program.

[[Page 203]]

    (d) Continued operations under State program permits. (1) A permit 
issued pursuant to a previously approved or conditionally approved State 
program shall be valid under a superseding Federal program.
    (2) Immediately following promulgation of a Federal program, the 
Director shall review the permits issued under the previously approved 
State program to determine that the requirements of the Act, this 
chapter, and the Federal program are not violated. If the Director 
determines that a permit was granted contrary to the requirments of this 
Act, the Director shall--
    (i) Inform the permittee in writing;
    (ii) Provide the permittee an opportunity for a hearing;
    (iii) Provide the permittee a reasonable opportunity to resubmit the 
permit application in whole or in part, as appropriate; and
    (iv) Provide the permittee a reasonable time to conform ongoing 
surface coal mining and reclamation operations to the requirements of 
the Federal program, as prescribed in the Federal program for the State.

[48 FR 44391, Sept. 28, 1983, as amended at 53 FR 11607, Apr. 7, 1988; 
54 FR 13823, Apr. 5, 1989. Redesignated at 65 FR 79663, Dec. 19, 2000.]



Sec. 773.5  Regulatory coordination with requirements under other laws.

    Each regulatory program shall, to avoid duplication, provide for the 
coordination of review and issuance of permits for surface coal mining 
and reclamation operations with applicable requirements of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.); the 
Fish and Wildlife Coordination Act, as amended (16 U.S.C. 661 et seq.); 
the Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. 703 et 
seq.); The National Historic Preservation Act of 1966, as amended (16 
U.S.C. 470 et seq.); the Bald Eagle Protection Act, as amended (16 
U.S.C. 668a); for Federal programs only, the Archeological and Historic 
Preservation Act of 1974 (16 U.S.C. 469 et seq.); and the Archaeological 
Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.) where Federal 
and Indian lands covered by that Act are involved.

[52 FR 4262, Feb. 10, 1987. Redesignated at 65 FR 79663, Dec. 19, 2000]



Sec. 773.6  Public participation in permit processing.

    (a) Filing and public notice. (1) Upon submission of an 
administratively complete application, an applicant for a permit, 
significant revision of a permit under Sec. 774.13, or renewal of a 
permit under Sec. 774.15, shall place an advertisement in a local 
newspaper of general circulation in the locality of the proposed surface 
coal mining and reclamation operation at least once a week for four 
consecutive weeks. A copy of the advertisement as it will appear in the 
newspaper shall be submitted to the regulatory authority. The 
advertisement shall contain, at a minimum, the following:
    (i) The name and business address of the applicant.
    (ii) A map or description which clearly shows or describes the 
precise location and boundaries of the proposed permit area and is 
sufficient to enable local residents to readily identify the proposed 
permit area. It may include towns, bodies of water, local landmarks, and 
any other information which would identify the location. If a map is 
used, it shall indicate the north direction.
    (iii) The location where a copy of the application is available for 
public inspection.
    (iv) The name and address of the regulatory authority where written 
comments, objections, or requests for informal conferences on the 
application may be submitted under paragraphs (b) and (c) of this 
section.
    (v) If an applicant seeks a permit to mine within 100 feet of the 
outside right-of-way of a public road or to relocate or close a public 
road, except where public notice and hearing have previously been 
provided for this particular part of the road in accordance with Sec. 
761.14 of this chapter; a concise statement describing the public road, 
the particular part to be relocated or closed, and the approximate 
timing and duration of the relocation or closing.
    (vi) If the application includes a request for an experimental 
practice

[[Page 204]]

under Sec. 785.13, a statement indicating that an experimental practice 
is requested and identifying the regulatory provisions for which a 
variance is requested.
    (2) The applicant shall make an application for a permit, 
significant revision under Sec. 774.13, or renewal of a permit under 
Sec. 774.15 available for the public to inspect and copy by filing a 
full copy of the application with the recorder at the courthouse of the 
county where the mining is proposed to occur, or an accessible public 
office approved by the regulatory authority. This copy of the 
application need not include confidential information exempt from 
disclosure under paragraph (d) of this section. The application required 
by this paragraph shall be filed by the first date of newspaper 
advertisement of the application. The applicant shall file any changes 
to the application with the public office at the same time the change is 
submitted to the regulatory authority.
    (3) Upon receipt of an administratively complete application for a 
permit, a significant revision to a permit under Sec. 774.13, or a 
renewal of a permit under Sec. 774.15, the regulatory authority shall 
issue written notification indicating the applicant's intention to mine 
the described tract of land, the application number or other identifier, 
the location where the copy of the application may be inspected, and the 
location where comments on the application may be submitted. The 
notification shall be sent to--
    (i) Local governmental agencies with jurisdiction over or an 
interest in the area of the proposed surface coal mining and reclamation 
operation, including but not limited to planning agencies, sewage and 
water treatment authorities, water companies; and
    (ii) All Federal or State governmental agencies with authority to 
issue permits and licenses applicable to the proposed surface coal 
mining and reclamation operation and which are part of the permit 
coordinating process developed in accordance with section 503(a)(6) or 
section 504(h) of the Act, or Sec. 773.5; or those agencies with an 
interest in the proposed operation, including the U.S. Department of 
Agriculture Soil Conservation Service district office, the local U.S. 
Army Corps of Engineers district engineer, the National Park Service, 
State and Federal fish and wildlife agencies, and the historic 
preservation officer.
    (b) Comments and objections on permit applications. (1) Within a 
reasonable time established by the regulatory authority, written 
comments or objections on an application for a permit, significant 
revision to a permit under Sec. 774.13, or renewal of a permit under 
Sec. 774.15 may be submitted to the regulatory authority by public 
entities notified under paragraph (a)(3) of this section with respect to 
the effects of the proposed mining operations on the environment within 
their areas of responsibility.
    (2) Written objections to an application for a permit, significant 
revision to a permit under Sec. 774.13, or renewal of a permit under 
Sec. 774.15 may be submitted to the regulatory authority by any person 
having an interest which is or may be adversely affected by the decision 
on the application, or by an officer or head of any Federal, State, or 
local government agency or authority, within 30 days after the last 
publication of the newspaper notice required by paragraph (a) of this 
section.
    (3) The regulatory authority shall upon receipt of such written 
comments or objections--
    (i) Transmit a copy of the comments or objections to the applicants; 
and
    (ii) File a copy for public inspection at the same public office 
where the application is filed.
    (c) Informal conferences. (1) Any person having an interest which is 
or may be adversely affected by the decision on the application, or an 
officer or a head of a Federal, State, or local government agency, may 
request in writing that the regulatory authority hold an informal 
conference on the application for a permit, significant revision to a 
permit under Sec. 774.13, or renewal of a permit under Sec. 774.15. 
The request shall--
    (i) Briefly summarize the issues to be raised by the requestor at 
the conference;
    (ii) State whether the requestor desires to have the conference 
conducted in the locality of the proposed operation; and

[[Page 205]]

    (iii) Be filed with the regulatory authority no later than 30 days 
after the last publication of the newspaper advertisement required under 
paragraph (a) of this section.
    (2) Except as provided in paragraph (c)(3) of this section, if an 
informal conference is requested in accordance with paragraph (c)(1) of 
this section, the regulatory authority shall hold an informal conference 
within a reasonable time following the receipt of the request. The 
informal conference shall be conducted as follows:
    (i) If requested under paragraph (c)(1)(ii) of this section, it 
shall be held in the locality of the proposed surface coal mining and 
reclamation operation.
    (ii) The date, time, and location of the informal conference shall 
be sent to the applicant and other parties to the conference and 
advertised by the regulatory authority in a newspaper of general 
circulation in the locality of the proposed surface coal mining and 
reclamation operation at least 2 weeks before the scheduled conference.
    (iii) If requested in writing by a conference requestor at a 
reasonable time before the conference, the regulatory authority may 
arrange with the applicant to grant parties to the conference access to 
the proposed permit area and, to the extent that the applicant has the 
right to grant access to it, to the adjacent area prior to the 
established date of the conference for the purpose of gathering 
information relevant to the conference.
    (iv) The requirements of section 5 of the Administrative Procedure 
Act, as amended (5 U.S.C. 554), shall not apply to the conduct of the 
informal conference. The conference shall be conducted by a 
representative of the regulatory authority, who may accept oral or 
written statements and any other relevant information from any party to 
the conference. An electronic or stenographic record shall be made of 
the conference, unless waived by all the parties. The record shall be 
maintained and shall be accessible to the parties of the conference 
until final release of the applicant's performance bond or other 
equivalent guarantee pursuant to subchapter J of this chapter.
    (3) If all parties requesting the informal conference withdraw their 
request before the conference is held, the informal conference may be 
canceled.
    (4) Informal conferences held in accordance with this section may be 
used by the regulatory authority as the public hearing required under 
Sec. 761.14(c) of this chapter on proposed relocation or closing of 
public roads.
    (d) Public availability of permit applications--(1) General 
availability. Except as provided in paragraph (d)(2) or (d)(3) of this 
section, all applications for permits; revisions; renewals; and 
transfers, assignments or sales of permit rights on file with the 
regulatory authority shall be available, at reasonable times, for public 
inspection and copying.
    (2) Limited availability. Except as provided in paragraph (d)(3)(i) 
of this section, information pertaining to coal seams, test borings, 
core samplings, or soil samples in an application shall be made 
available to any person with an interest which is or may be adversely 
affected. Information subject to this paragraph shall be made available 
to the public when such information is required to be on public file 
pursuant to State law.
    (3) Confidentiality. The regulatory authority shall provide 
procedures, including notice and opportunity to be heard for persons 
both seeking and opposing disclosure, to ensure confidentiality of 
qualified confidential information, which shall be clearly identified by 
the applicant and submitted separately from the remainder of the 
application. Confidential information is limited to--
    (i) Information that pertains only to the analysis of the chemical 
and physical properties of the coal to be mined, except information on 
components of such coal which are potentially toxic in the environment;
    (ii) Information required under section 508 of the Act that is not 
on public file pursuant to State law and that the applicant has 
requested in writing to be held confidential;
    (iii) Information on the nature and location of archeological 
resources on public land and Indian land as required

[[Page 206]]

under the Archeological Resources Protection Act of 1979 (Pub. L. 96-95, 
93 Stat. 721, 16 U.S.C. 470).

[48 FR 44391, Sept. 28, 1983, as amended at 64 FR 70837, Dec. 17, 1999. 
Redesignated and amended at 65 FR 79663, Dec. 19, 2000; 66 FR 16127, 
Mar. 23, 2001; 75 FR 60275, Sept. 29, 2010]



Sec. 773.7  Review of permit applications.

    (a) The regulatory authority will review an application for a 
permit, revision, or renewal; written comments and objections submitted; 
and records of any informal conference or hearing held on the 
application and issue a written decision, within a reasonable time set 
by the regulatory authority, either granting, requiring modification of, 
or denying the application. If an informal conference is held under 
Sec. 773.6(c) of this part, the decision will be made within 60 days of 
the close of the conference.
    (b) The applicant for a permit or revision of a permit shall have 
the burden of establishing that his application is in compliance with 
all the requirements of the regulatory program.

[48 FR 44391, Sept. 28, 1983, as amended at 65 FR 79663, Dec. 19, 2000; 
72 FR 68029, Dec. 3, 2007]



Sec. 773.8  General provisions for review of permit application information 

and entry of information into AVS.

    (a) Based on an administratively complete application, we, the 
regulatory authority, must undertake the reviews required under 
Sec. Sec. 773.9 through 773.11 of this part.
    (b) We will enter into AVS--
    (1) The information you are required to submit under Sec. Sec. 
778.11 and 778.12(c) of this subchapter.
    (2) The information you submit under Sec. 778.14 of this subchapter 
pertaining to violations which are unabated or uncorrected after the 
abatement or correction period has expired.
    (c) We must update the information referred to in paragraph (b) of 
this section in AVS upon our verification of any additional information 
submitted or discovered during our permit application review.

[65 FR 79663, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007]



Sec. 773.9  Review of applicant and operator information.

    (a) We, the regulatory authority, will rely upon the information 
that you, the applicant, are required to submit under Sec. 778.11 of 
this subchapter, information from AVS, and any other available 
information, to review your and your operator's organizational structure 
and ownership or control relationships.
    (b) We must conduct the review required under paragraph (a) of this 
section before making a permit eligibility determination under Sec. 
773.12 of this part.

[65 FR 79663, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007; 75 
FR 60275, Sept. 29, 2010]



Sec. 773.10  Review of permit history.

    (a) We, the regulatory authority, will rely upon the permit history 
information you, the applicant, submit under Sec. 778.12 of this 
subchapter, information from AVS, and any other available information to 
review your and your operator's permit histories. We must conduct this 
review before making a permit eligibility determination under Sec. 
773.12 of this part.
    (b) We will also determine if you or your operator have previous 
mining experience.
    (c) If you or your operator do not have any previous mining 
experience, we may conduct an additional review under Sec. 774.11(f) of 
this subchapter. The purpose of this review will be to determine if 
someone else with mining experience controls the mining operation.

[65 FR 79663, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007]



Sec. 773.11  Review of compliance history.

    (a) We, the regulatory authority, will rely upon the violation 
information supplied by you, the applicant, under Sec. 778.14 of this 
subchapter, a report from AVS, and any other available information to 
review histories of compliance with the Act or the applicable State 
regulatory program, and any other applicable air or water quality laws, 
for--
    (1) You;
    (2) Your operator;

[[Page 207]]

    (3) Operations you own or control; and
    (4) Operations your operator owns or controls.
    (b) We must conduct the review required under paragraph (a) of this 
section before making a permit eligibility determination under Sec. 
773.12 of this part.

[65 FR 79663, Dec. 19, 2000]



Sec. 773.12  Permit eligibility determination.

    Based on the reviews required under Sec. Sec. 773.9 through 773.11 
of this part, we, the regulatory authority, will determine whether you, 
the applicant, are eligible for a permit under section 510(c) of the 
Act.
    (a) Except as provided in Sec. Sec. 773.13 and 773.14 of this part, 
you are not eligible for a permit if we find that any surface coal 
mining operation that--
    (1) You directly own or control has an unabated or uncorrected 
violation; or
    (2) You or your operator indirectly control has an unabated or 
uncorrected violation and your control was established or the violation 
was cited after November 2, 1988.
    (b) We will not issue you a permit if you or your operator are 
permanently ineligible to receive a permit under Sec. 774.11(c) of this 
subchapter.
    (c) After we approve your permit under Sec. 773.15 of this part, we 
will not issue the permit until you comply with the information update 
and certification requirement of Sec. 778.9(d) of this subchapter. 
After you complete that requirement, we will again request a compliance 
history report from AVS to determine if there are any unabated or 
uncorrected violations which affect your permit eligibility under 
paragraphs (a) and (b) of this section. We will request this report no 
more than five business days before permit issuance under Sec. 773.19 
of this part.
    (d) If you are ineligible for a permit under this section, we will 
send you written notification of our decision. The notice will tell you 
why you are ineligible and include notice of your appeal rights under 
part 775 of this subchapter and 43 CFR 4.1360 through 4.1369.

[65 FR 79663, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007]



Sec. 773.13  Unanticipated events or conditions at remining sites.

    (a) You, the applicant, are eligible for a permit under Sec. 773.12 
if an unabated violation--
    (1) Occurred after October 24, 1992; and
    (2) Resulted from an unanticipated event or condition at a surface 
coal mining and reclamation operation on lands that are eligible for 
remining under a permit that was held by the person applying for the new 
permit.
    (b) For permits issued under Sec. 785.25 of this subchapter, an 
event or condition is presumed to be unanticipated for the purpose of 
this section if it--
    (1) Arose after permit issuance;
    (2) Was related to prior mining; and
    (3) Was not identified in the permit application.

[65 FR 79663, Dec. 19, 2000, as amended at 73 FR 67630, Nov. 14, 2008]



Sec. 773.14  Eligibility for provisionally issued permits.

    (a) This section applies to you if you are an applicant who owns or 
controls a surface coal mining and reclamation operation with--
    (1) A notice of violation issued under Sec. 843.12 of this chapter 
or the State regulatory program equivalent for which the abatement 
period has not yet expired; or
    (2) A violation that is unabated or uncorrected beyond the abatement 
or correction period.
    (b) We, the regulatory authority, will find you eligible for a 
provisionally issued permit under this section if you demonstrate that 
one or more of the following circumstances exists with respect to all 
violations listed in paragraph (a) of this section--
    (1) For violations meeting the criteria of paragraph (a)(1) of this 
section, you certify that the violation is being abated to the 
satisfaction of the regulatory authority with jurisdiction over the 
violation, and we have no evidence to the contrary.

[[Page 208]]

    (2) As applicable, you, your operator, and operations that you or 
your operator own or control are in compliance with the terms of any 
abatement plan (or, for delinquent fees or penalties, a payment 
schedule) approved by the agency with jurisdiction over the violation.
    (3) You are pursuing a good faith--
    (i) Challenge to all pertinent ownership or control listings or 
findings under Sec. Sec. 773.25 through 773.27 of this part; or
    (ii) Administrative or judicial appeal of all pertinent ownership or 
control listings or findings, unless there is an initial judicial 
decision affirming the listing or finding and that decision remains in 
force.
    (4) The violation is the subject of a good faith administrative or 
judicial appeal contesting the validity of the violation, unless there 
is an initial judicial decision affirming the violation and that 
decision remains in force.
    (c) We will consider a provisionally issued permit to be 
improvidently issued, and we must immediately initiate procedures under 
Sec. Sec. 773.22 and 773.23 of this part to suspend or rescind that 
permit, if--
    (1) Violations included in paragraph (b)(1) of this section are not 
abated within the specified abatement period;
    (2) You, your operator, or operations that you or your operator own 
or control do not comply with the terms of an abatement plan or payment 
schedule mentioned in paragraph (b)(2) of this section;
    (3) In the absence of a request for judicial review, the disposition 
of a challenge and any subsequent administrative review referenced in 
paragraph (b)(3) or (4) of this section affirms the validity of the 
violation or the ownership or control listing or finding; or
    (4) The initial judicial review decision referenced in paragraph 
(b)(3)(ii) or (4) of this section affirms the validity of the violation 
or the ownership or control listing or finding.

[65 FR 79663, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007]



Sec. 773.15  Written findings for permit application approval.

    No permit application or application for a significant revision of a 
permit shall be approved unless the application affirmatively 
demonstrates and the regulatory authority finds, in writing, on the 
basis of information set forth in the application or from information 
otherwise available that is documented in the approval, the following:
    (a) The application is accurate and complete and the applicant has 
complied with all requirements of the Act and the regulatory program.
    (b) The applicant has demonstrated that reclamation as required by 
the Act and the regulatory program can be accomplished under the 
reclamation plan contained in the permit application.
    (c) The proposed permit area is--
    (1) Not within an area under study or administrative proceedings 
under a petition, filed pursuant to parts 764 and 769 of this chapter, 
to have an area designated as unsuitable for surface coal mining 
operations, unless the applicant demonstrates that before January 4, 
1977, he has made substantial legal and financial commitments in 
relation to the operation covered by the permit application; or
    (2) Not within an area designated as unsuitable for surface coal 
mining operations under parts 762 and 764 or 769 of this chapter or 
within an area subject to the prohibitions of Sec. 761.11 of this 
chapter.
    (d) For mining operations where the private mineral estate to be 
mined has been severed from the private surface estate, the applicant 
has submitted to the regulatory authority the documentation required 
under Sec. 778.15(b) of this chapter.
    (e) The regulatory authority has made an assessment of the probable 
cumulative impacts of all anticipated coal mining on the hydrologic 
balance in the cumulative impact area and has determined that the 
proposed operation has been designed to prevent material damage to the 
hydrologic balance outside the permit area.
    (f) The applicant has demonstrated that any existing structure will 
comply with Sec. 701.11(d), and the applicable performance standards of 
subchapter B or K of this chapter.

[[Page 209]]

    (g) The applicant has paid all reclamation fees from previous and 
existing operations as required by subchapter R of this chapter.
    (h) The applicant has satisfied the applicable requirements of part 
785 of this chapter.
    (i) The applicant has, if applicable, satisfied the requirements for 
approval of a long-term, intensive agricultural postmining land use, in 
accordance with the requirements of Sec. 816.111(d) or Sec. 
817.111(d).
    (j) The operation would not affect the continued existence of 
endangered or threatened species or result in destruction or adverse 
modification of their critical habitats, as determined under the 
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
    (k) The regulatory authority has taken into account the effect of 
the proposed permitting action on properties listed on and eligible for 
listing on the National Register of Historic Places. This finding may be 
supported in part by inclusion of appropriate permit conditions or 
changes in the operation plan protecting historic resources, or a 
documented decision that the regulatory authority has determined that no 
additional protection measures are necessary.
    (l) For a proposed remining operation where the applicant intends to 
reclaim in accordance with the requirements of Sec. 816.106 or Sec. 
817.106 of this chapter, the site of the operation is a previously mined 
area as defined in Sec. 701.5 of this chapter.
    (m) For permits to be issued under Sec. 785.25 of this chapter, the 
permit application must contain:
    (i) Lands eligible for remining;
    (ii) An identification of the potential environmental and safety 
problems related to prior mining activity which could reasonably be 
anticipated to occur at the site; and
    (iii) Mitigation plans to sufficiently address these potential 
environmental and safety problems so that reclamation as required by the 
applicable requirements of the regulatory program can be accomplished.
    (n) The applicant is eligible to receive a permit, based on the 
reviews under Sec. Sec. 773.7 through 773.14 of this part.

[48 FR 44391, Sept. 28, 1983, as amended at 65 FR 79663, Dec. 19, 2000]



Sec. 773.16  Performance bond submittal.

    If the regulatory authority decides to approve the application, it 
shall require that the applicant file the performance bond or provide 
other equivalent guarantee before the permit is issued, in accordance 
with the provisions of subchapter J of this chapter.

[48 FR 44391, Sept. 28, 1983, as amended at 52 FR 4262, Feb. 10, 1987; 
52 FR 17529, May 8, 1987; 53 FR 38890, Oct. 3, 1988; 54 FR 8991, Mar. 2, 
1989; 59 FR 54353, Oct. 28, 1994; 60 FR 58491, Nov. 27, 1995; 62 FR 
19458, Apr. 21, 1997; 64 FR 70837, Dec. 17, 1999; 65 FR 79663, Dec. 19, 
2000. Redesignated at 65 FR 79663, Dec. 19, 2000; 66 FR 16127, Mar. 23, 
2001]



Sec. 773.17  Permit conditions.

    Each permit issued by the regulatory authority shall be subject to 
the following conditions:
    (a) The permittee shall conduct surface coal mining and reclamation 
operations only on those lands that are specifically designated as the 
permit area on the maps submitted with the application and authorized 
for the term of the permit and that are subject to the performance bond 
or other equivalent guarantee in effect pursuant to subchapter J of this 
chapter.
    (b) The permittee shall conduct all surface coal mining and 
reclamation operations only as described in the approved application, 
except to the extent that the regulatory authority otherwise directs in 
the permit.
    (c) The permittee shall comply with the terms and conditions of the 
permit, all applicable performance standards of the Act, and the 
requirements of the regulatory program.
    (d) Without advance notice, delay, or a search warrant, upon 
presentation of appropriate credentials, the permittee shall allow the 
authorized representatives of the Secretary and the State regulatory 
authority to--
    (1) Have the right of entry provided for in Sec. Sec. 842.13 and 
840.12 of this chapter; and
    (2) Be accompanied by private persons for the purpose of conducting 
an inspection in accordance with parts 840

[[Page 210]]

and 842, when the inspection is in response to an alleged violation 
reported to the regulatory authority by the private person.
    (e) The permittee shall take all possible steps to minimize any 
adverse impact to the environment or public health and safety resulting 
from noncompliance with any term or condition or the permit, including, 
but not limited to--
    (1) Any accelerated or additional monitoring necessary to determine 
the nature and extent of noncompliance and the results of the 
noncompliance;
    (2) Immediate implementation of measures necessary to comply; and
    (3) Warning, as soon as possible after learning of such 
noncompliance, any person whose health and safety is in imminent danger 
due to the noncompliance.
    (f) As applicable, the permittee shall comply with Sec. 701.11(d) 
and subchapter B or K of this chapter for compliance, modification, or 
abandonment of existing structures.
    (g) The operator shall pay all reclamation fees required by 
subchapter R of this chapter for coal produced under the permit for 
sale, transfer or use, in the manner required by that subchapter.

[48 FR 44391, Sept. 28, 1983, as amended at 49 FR 27499, July 5, 1984; 
54 FR 8991, Mar. 2, 1989; 62 FR 19459, Apr. 21, 1997; 65 FR 79663, Dec. 
19, 2000]



Sec. 773.19  Permit issuance and right of renewal.

    (a) Decision. If the application is approved, the permit shall be 
issued upon submittal of a performance bond in accordance with 
subchapter J. If the application is disapproved, specific reasons 
therefore shall be set forth in the notification required by paragraph 
(b) of this section.
    (b) Notification. The regulatory authority shall issue written 
notification of the decision to the following persons and entities:
    (1) The applicant, each person who files comments or objections to 
the permit application, and each party to an informal conference.
    (2) The local governmental officials in the local political 
subdivision in which the land to be affected is located within 10 days 
after the issuance of a permit, including a description of the location 
of the land.
    (3) If the regulatory authority is a State agency, the local OSM 
office.
    (c) Permit term. Each permit shall be issued for a fixed term of 5 
years or less, unless the requirements of Sec. 778.17 of this chapter 
are met.
    (d) Right of renewal. Permit application approval shall apply to 
those lands that are specifically designated as the permit area on the 
maps submitted with the application and for which the application is 
complete and accurate. Any valid permit issued in accordance with 
paragraph (a) of this section shall carry with it the right of 
successive renewal, within the approved boundaries of the existing 
permit, upon expiration of the term of the permit, in accordance with 
Sec. 774.15.
    (e) Initiation of operations. (1) A permit shall terminate if the 
permittee has not begun the surface coal mining and reclamation 
operation covered by the permit within 3 years of the issuance of the 
permit.
    (2) The regulatory authority may grant a reasonable extension of 
time for commencement of these operations, upon receipt of a written 
statement showing that such an extension of time is necessary, if--
    (i) Litigation precludes the commencement or threatens substantial 
economic loss to the permittee; or
    (ii) There are conditions beyond the control and without the fault 
or negligence of the permittee.
    (3) With respect to coal to be mined for use in a synthetic fuel 
facility or specified major electric generating facility, the permittee 
shall be deemed to have commenced surface mining operations at the time 
that the construction of the synthetic fuel or generating facility is 
initiated.
    (4) Extensions of time granted by the regulatory authority under 
this paragraph shall be specifically set forth in the permit, and notice 
of the extension shall be made public by the regulatory authority.

[[Page 211]]



Sec. 773.21  Initial review and finding requirements for improvidently issued 

permits.

    (a) If we, the regulatory authority, have reason to believe that we 
improvidently issued a permit to you, the permittee, we must review the 
circumstances under which the permit was issued. We will make a 
preliminary finding that your permit was improvidently issued if, under 
the permit eligibility criteria of the applicable regulations 
implementing section 510(c) of the Act in effect at the time of permit 
issuance, your permit should not have been issued because you or your 
operator owned or controlled a surface coal mining and reclamation 
operation with an unabated or uncorrected violation.
    (b) We will make a finding under paragraph (a) of this section only 
if you or your operator--
    (1) Continue to own or control the operation with the unabated or 
uncorrected violation;
    (2) The violation remains unabated or uncorrected; and
    (3) The violation would cause you to be ineligible under the permit 
eligibility criteria in our current regulations.
    (c) When we make a preliminary finding under paragraph (a) of this 
section, we must serve you with a written notice of the preliminary 
finding, which must be based on evidence sufficient to establish a prima 
facie case that your permit was improvidently issued.
    (d) Within 30 days of receiving a notice under paragraph (c) of this 
section, you may challenge the preliminary finding by providing us with 
evidence as to why the permit was not improvidently issued under the 
criteria in paragraphs (a) and (b) of this section.
    (e) The provisions of Sec. Sec. 773.25 through 773.27 of this part 
apply when a challenge under paragraph (d) of this section concerns a 
preliminary finding under paragraphs (a) and (b)(1) of this section that 
you or your operator currently own or control, or owned or controlled, a 
surface coal mining operation.

[65 FR 79665, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007]



Sec. 773.22  Notice requirements for improvidently issued permits.

    (a) We, the regulatory authority, must serve you, the permittee, 
with a written notice of proposed suspension or rescission, together 
with a statement of the reasons for the proposed suspension or 
rescission, if--
    (1) After considering any evidence submitted under Sec. 773.21(d) 
of this part, we find that a permit was improvidently issued under the 
criteria in paragraphs (a) and (b) of Sec. 773.21 of this part; or
    (2) Your permit was provisionally issued under Sec. 773.14(b) of 
this part and one or more of the conditions in Sec. Sec. 773.14(c)(1) 
through (4) exists.
    (b) If we propose to suspend your permit, we will provide 60 days 
notice.
    (c) If we propose to rescind your permit, we will provide 120 days 
notice.
    (d) If you wish to appeal the notice, you must exhaust 
administrative remedies under the procedures at 43 CFR 4.1370 through 
4.1377 (when OSM is the regulatory authority) or under the State 
regulatory program equivalent (when a State is the regulatory 
authority).
    (e) After we serve you with a notice of proposed suspension or 
rescission under this section, we will take action under Sec. 773.23 of 
this part.
    (f) The regulations for service at Sec. 843.14 of this chapter, or 
the State regulatory program equivalent, will govern service under this 
section.
    (g) The times specified in paragraphs (b) and (c) of this section 
will apply unless you obtain temporary relief under the procedures at 43 
CFR 4.1376 or the State regulatory program equivalent.

[65 FR 79665, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007; 75 
FR 60275, Sept. 29, 2010]



Sec. 773.23  Suspension or rescission requirements for improvidently issued 

permits.

    (a) Except as provided in paragraph (b) of this section, we, the 
regulatory authority, must suspend or rescind your permit upon 
expiration of the time specified in Sec. 773.22(b) or (c) of this part 
unless you submit evidence and we find that--
    (1) The violation has been abated or corrected to the satisfaction 
of the

[[Page 212]]

agency with jurisdiction over the violation;
    (2) You or your operator no longer own or control the relevant 
operation;
    (3) Our finding for suspension or rescission was in error;
    (4) The violation is the subject of a good faith administrative or 
judicial appeal (unless there is an initial judicial decision affirming 
the violation, and that decision remains in force);
    (5) The violation is the subject of an abatement plan or payment 
schedule that is being met to the satisfaction of the agency with 
jurisdiction over the violation; or
    (6) You are pursuing a good faith challenge or administrative or 
judicial appeal of the relevant ownership or control listing or finding 
(unless there is an initial judicial decision affirming the listing or 
finding, and that decision remains in force).
    (b) If you have requested administrative review of a notice of 
proposed suspension or rescission under Sec. 773.22(e) of this part, we 
will not suspend or rescind your permit unless and until the Office of 
Hearings and Appeals or its State counterpart affirms our finding that 
your permit was improvidently issued.
    (c) When we suspend or rescind your permit under this section, we 
must--
    (1) Issue you a written notice requiring you to cease all surface 
coal mining operations under the permit; and
    (2) Post the notice at our office closest to the permit area.
    (d) If we suspend or rescind your permit under this section, you may 
request administrative review of the notice under the procedures at 43 
CFR 4.1370 through 4.1377 (when OSM is the regulatory authority) or 
under the State regulatory program equivalent (when a State is the 
regulatory authority). Alternatively, you may seek judicial review of 
the notice.

[65 FR 79665, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007]



Sec. 773.25  Who may challenge ownership or control listings and findings.

    You may challenge a listing or finding of ownership or control using 
the provisions under Sec. Sec. 773.26 and 773.27 of this part if you 
are--
    (a) Listed in a permit application or AVS as an owner or controller 
of an entire surface coal mining operation, or any portion or aspect 
thereof:
    (b) Found to be an owner or controller of an entire surface coal 
mining operation, or any portion or aspect thereof, under Sec. Sec. 
773.21 or 774.11(g) of this subchapter; or
    (c) An applicant or permittee affected by an ownership or control 
listing or finding.

[65 FR 79666, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007]



Sec. 773.26  How to challenge an ownership or control listing or finding.

    This section applies to you if you challenge an ownership or control 
listing or finding.
    (a) To challenge an ownership or control listing or finding, you 
must submit a written explanation of the basis for the challenge, along 
with any evidence or explanatory materials you wish to provide under 
Sec. 773.27(b) of this part, to the regulatory authority, as identified 
in the following table.

------------------------------------------------------------------------
                                          Then you must submit a written
    If the challenge concerns . . .            explanation to . . .
------------------------------------------------------------------------
(1) a pending State or Federal permit    the regulatory authority with
 application.                             jurisdiction over the
                                          application.
(2) your ownership or control of a       the regulatory authority with
 surface coal mining operation, and you   jurisdiction over the surface
 are not currently seeking a permit.      coal mining operation.
------------------------------------------------------------------------

    (b) The provisions of this section and of Sec. Sec. 773.27 and 
773.28 of this part apply only to challenges to ownership or control 
listings or findings. You may not use these provisions to challenge your 
liability or responsibility under any other provision of the Act or its 
implementing regulations.
    (c) When the challenge concerns a violation under the jurisdiction 
of a different regulatory authority, the regulatory authority with 
jurisdiction over the permit application or permit must consult the 
regulatory authority with jurisdiction over the violation and

[[Page 213]]

the AVS Office to obtain additional information.
    (d) A regulatory authority responsible for deciding a challenge 
under paragraph (a) of this section may request an investigation by the 
AVS Office.
    (e) At any time, you, a person listed in AVS as an owner or 
controller of a surface coal mining operation, may request an informal 
explanation from the AVS Office as to the reason you are shown in AVS in 
an ownership or control capacity. Within 14 days of your request, the 
AVS Office will provide a response describing why you are listed in AVS.

[65 FR 796676, Dec. 19, 2000, as amended at 72 FR 68029, Dec. 3, 2007]



Sec. 773.27  Burden of proof for ownership or control challenges.

    This section applies to you if you challenge an ownership or control 
listing or finding.
    (a) When you challenge a listing of ownership or control, or a 
finding of ownership or control made under Sec. 774.11(g) of this 
subchapter, you must prove by a preponderance of the evidence that you 
either--
    (1) Do not own or control the entire surface coal mining operation 
or relevant portion or aspect thereof; or
    (2) Did not own or control the entire surface coal mining operation 
or relevant portion or aspect thereof during the relevant time period.
    (b) In meeting your burden of proof, you must present reliable, 
credible, and substantial evidence and any explanatory materials to the 
regulatory authority. The materials presented in connection with your 
challenge will become part of the permit file, an investigation file, or 
another public file. If you request, we will hold as confidential any 
information you submit under this paragraph which is not required to be 
made available to the public under Sec. 842.16 of this chapter (when 
OSM is the regulatory authority) or under Sec. 840.14 of this chapter 
(when a State is the regulatory authority).
    (c) Materials you may submit in response to the requirements of 
paragraph (b) of this section include, but are not limited to--
    (1) Notarized affidavits containing specific facts concerning the 
duties that you performed for the relevant operation, the beginning and 
ending dates of your ownership or control of the operation, and the 
nature and details of any transaction creating or severing your 
ownership or control of the operation.
    (2) Certified copies of corporate minutes, stock ledgers, contracts, 
purchase and sale agreements, leases, correspondence, or other relevant 
company records.
    (3) Certified copies of documents filed with or issued by any State, 
municipal, or Federal governmental agency.
    (4) An opinion of counsel, when supported by--
    (i) Evidentiary materials;
    (ii) A statement by counsel that he or she is qualified to render 
the opinion; and
    (iii) A statement that counsel has personally and diligently 
investigated the facts of the matter.

[65 FR 79666, Dec. 19, 2000, as amended at 72 FR 68030, Dec. 3, 2007]



Sec. 773.28  Written agency decision on challenges to ownership or control 

listings or findings.

    (a) Within 60 days of receipt of your challenge under Sec. 
773.26(a) of this part, we, the regulatory authority identified under 
Sec. 773.26(a) of this part, will review and investigate the evidence 
and explanatory materials you submit and any other reasonably available 
information bearing on your challenge and issue a written decision. Our 
decision must state whether you own or control the relevant surface coal 
mining operation, or owned or controlled the operation, during the 
relevant time period.
    (b) We will promptly provide you with a copy of our decision by 
either--
    (1) Certified mail, return receipt requested; or
    (2) Any means consistent with the rules governing service of a 
summons and complaint under Rule 4 of the Federal Rules of Civil 
Procedure, or its State regulatory program counterparts.
    (c) Service of the decision on you is complete upon delivery and is 
not incomplete if you refuse to accept delivery.

[[Page 214]]

    (d) We will post all decisions made under this section on AVS.
    (e) Any person who receives a written decision under this section, 
and who wishes to appeal that decision, must exhaust administrative 
remedies under the procedures at 43 CFR 4.1380 through 4.1387 or, when a 
State is the regulatory authority, the State regulatory program 
counterparts, before seeking judicial review.
    (f) Following our written decision or any decision by a reviewing 
administrative or judicial tribunal, we must review the information in 
AVS to determine if it is consistent with the decision. If it is not, we 
must promptly revise the information in AVS to reflect the decision.

[65 FR 79666, Dec. 19, 2000, as amended at 72 FR 68030, Dec. 3, 2007]



PART 774_REVISION; RENEWAL; TRANSFER, ASSIGNMENT, OR SALE OF PERMIT RIGHTS; 

POST-PERMIT ISSUANCE REQUIREMENTS; AND OTHER ACTIONS BASED ON OWNERSHIP, 

CONTROL, AND VIOLATION INFORMATION--Table of Contents



Sec.
774.1 Scope and purpose.
774.9 Information collection.
774.10 Regulatory authority review of permits.
774.11 Post-permit issuance requirements for regulatory authorities and 
          other actions based on ownership, control, and violation 
          information.
774.12 Post-permit issuance information requirements for permittees.
774.13 Permit revisions.
774.15 Permit renewals.
774.17 Transfer, assignment, or sale of permit rights.

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

    Source: 48 FR 44395, Sept. 28, 1983, unless otherwise noted.



Sec. 774.1  Scope and purpose.

    This part provides requirements for revision; renewal; transfer, 
assignment, or sale of permit rights; entering and updating information 
in AVS following the issuance of a permit; post-permit issuance 
requirements for regulatory authorities and permittees; and other 
actions based on ownership, control, and violation information.

[65 FR 79667, Dec. 19, 2000]



Sec. 774.9  Information collection.

    (a) The collections of information contained in part 774 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0116. Regulatory authorities 
will use this information to:
    (1) Determine if the applicant meets the requirements for revision; 
renewal; transfer, assignment, or sale of permit rights;
    (2) Enter and update information in AVS following the issuance of a 
permit; and
    (3) Fulfill post-permit issuance requirements and other obligations 
based on ownership, control, and violation information.
    (b) A Federal agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays a 
currently valid OMB control number. Response is required to obtain a 
benefit in accordance with SMCRA. Send comments regarding burden 
estimates or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer, Room 202-SIB, 1951 Constitution Avenue, NW., Washington, DC 
20240.

[72 FR 68030, Dec. 3, 2007]



Sec. 774.10  Regulatory authority review of permits.

    (a) The regulatory authority shall review each permit issued and 
outstanding under an approved regulatory program during the term of the 
permit. This review shall occur not later than the middle of each permit 
term and as follows:
    (1) Permits with a term longer than 5 years shall be reviewed no 
less frequently than the permit midterm or every 5 years, whichever is 
more frequent.
    (2) Permits with variances granted in accordance with Sec. 785.14 
of this chapter (mountaintop removal) and Sec. 785.18 of

[[Page 215]]

this chapter (variance for delay in contemporaneous reclamation 
requirement in combined surface and underground mining operations) of 
this chapter shall be reviewed no later than 3 years from the date of 
issuance of the permit unless, for variances issued in accordance with 
Sec. 785.14 of this chapter, the permittee affirmatively demonstrates 
that the proposed development is proceeding in accordance with the terms 
of the permit.
    (3) Permits containing experimental practices issued in accordance 
with Sec. 785.13 of this chapter and permits with a variance from 
approximate original contour requirements in accordance with Sec. 
785.16 shall be reviewed as set forth in the permit or at least every 
2\1/2\ years from the date of issuance as required by the regulatory 
authority, in accordance with Sec. Sec. 785.13(g) and 785.16(c) of this 
chapter, respectively.
    (b) After the review required by paragraph (a) of this section, or 
at any time, the regulatory authority may, by order, require reasonable 
revision of a permit in accordance with Sec. 774.13 to ensure 
compliance with the Act and the regulatory program.
    (c) Any order of the regulatory authority requiring revision of a 
permit shall be based upon written findings and shall be subject to the 
provisions for administrative and judicial review in part 775 of this 
chapter. Copies of the order shall be sent to the permittee.
    (d) Permits may be suspended or revoked in accordance with 
subchapter L of this chapter.

[48 FR 44398, Sept. 28, 1983. Redesignated at 65 FR 79667, Dec. 19, 
2000.]



Sec. 774.11  Post-permit issuance requirements for regulatory authorities and 

other actions based on ownership, control, and violation information.

    (a) For the purposes of future permit eligibility determinations and 
enforcement actions, we, the regulatory authority, must enter into AVS 
the data shown in the following table--

------------------------------------------------------------------------
    We must enter into AVS all . . .        Within 30 days after . . .
------------------------------------------------------------------------
(1) permit records.....................  the permit is issued or
                                          subsequent changes made.
(2) unabated or uncorrected violations.  the abatement or correction
                                          period for a violation
                                          expires.
(3) changes to information initially     receiving notice of a change.
 required to be provided by an
 applicant under 30 CFR 778.11.
(4) changes in violation status........  abatement, correction, or
                                          termination of a violation, or
                                          a decision from an
                                          administrative or judicial
                                          tribunal.
------------------------------------------------------------------------

    (b) If, at any time, we discover that any person owns or controls an 
operation with an unabated or uncorrected violation, we will determine 
whether enforcement action is appropriate under part 843, 846 or 847 of 
this chapter. We must enter the results of each enforcement action, 
including administrative and judicial decisions, into AVS.
    (c) We must serve a preliminary finding of permanent permit 
ineligibility under section 510(c) of the Act on you, an applicant or 
operator, if the criteria in paragraphs (c)(1) and (c)(2) are met. In 
making a finding under this paragraph, we will only consider control 
relationships and violations which would make, or would have made, you 
ineligible for a permit under Sec. Sec. 773.12(a) and (b) of this 
subchapter. We must make a preliminary finding of permanent permit 
ineligibility if we find that--
    (1) You control or have controlled surface coal mining and 
reclamation operations with a demonstrated pattern of willful violations 
under section 510(c) of the Act; and
    (2) The violations are of such nature and duration with such 
resulting irreparable damage to the environment as to indicate your 
intent not to comply with the Act, its implementing regulations, the 
regulatory program, or your permit.
    (d) You may request a hearing on a preliminary finding of permanent 
permit ineligibility under 43 CFR 4.1350 through 4.1356.
    (e) Entry into AVS.
    (1) If you do not request a hearing, and the time for seeking a 
hearing has

[[Page 216]]

expired, we will enter our finding into AVS.
    (2) If you request a hearing, we will enter our finding into AVS 
only if that finding is upheld on administrative appeal.
    (f) At any time, we may identify any person who owns or controls an 
entire surface coal mining operation or any relevant portion or aspect 
thereof. If we identify such a person, we must issue a written 
preliminary finding to the person and the applicant or permittee 
describing the nature and extent of ownership or control. Our written 
preliminary finding must be based on evidence sufficient to establish a 
prima facie case of ownership or control.
    (g) After we issue a written preliminary finding under paragraph (f) 
of this section, we will allow you, the person subject to the 
preliminary finding, 30 days in which to submit any information tending 
to demonstrate your lack of ownership or control. If, after reviewing 
any information you submit, we are persuaded that you are not an owner 
or controller, we will serve you a written notice to that effect. If, 
after reviewing any information you submit, we still find that you are 
an owner or controller, or if you do not submit any information within 
the 30-day period, we will issue a written finding and enter our finding 
into AVS.
    (h) If we identify you as an owner or controller under paragraph (g) 
of this section, you may challenge the finding using the provisions of 
Sec. Sec. 773.25, 773.26, and 773.27 of this subchapter.

[65 FR 79667, Dec. 19, 2000, as amended at 72 FR 68030, Dec. 3, 2007]



Sec. 774.12  Post-permit issuance information requirements for permittees.

    (a) Within 30 days after the issuance of a cessation order under 
Sec. 843.11 of this chapter, or its State regulatory program 
equivalent, you, the permittee, must provide or update all the 
information required under Sec. 778.11 of this subchapter.
    (b) You do not have to submit information under paragraph (a) of 
this section if a court of competent jurisdiction grants a stay of the 
cessation order and the stay remains in effect.
    (c) Within 60 days of any addition, departure, or change in position 
of any person identified in Sec. 778.11(c) of this subchapter, you must 
provide--
    (1) The information required under Sec. 778.11(d) of this 
subchapter; and
    (2) The date of any departure.

[65 FR 79667, Dec. 19, 2000, as amended at 72 FR 68030, Dec. 3, 2007]



Sec. 774.13  Permit revisions.

    (a) General. During the term of a permit, the permittee may submit 
an application to the regulatory authority for a revision of the permit.
    (b) Application requirements and procedures. the regulatory 
authority shall establish--
    (1) A time period within which the regulatory authority will approve 
or disapprove an application for a permit revision; and
    (2) Guidelines establishing the scale or extent of revisions for 
which all the permit application information requirements and procedures 
of this subchapter, including notice, public participation, and notice 
of decision requirements of Sec. Sec. 773.6, 773.19(b) (1) and (3), and 
778.21, shall apply. Such requirements and procedures shall apply at a 
minimum to all significant permit revisions.
    (c) Criteria for approval. No application for a permit revision 
shall be approved unless the application demonstrates and the regulatory 
authority finds that reclamation as required by the Act and the 
regulatory program can be accomplished, applicable requirements under 
Sec. 773.15 which are pertinent to the revision are met, and the 
application for a revision complies with all requirements of the Act and 
the regulatory program.
    (d) Request to change permit boundary. Any extensions to the area 
covered by the permit, except incidental boundary revisions, shall be 
made by application for a new permit.

[48 FR 44395, Sept. 28, 1983, as amended at 65 FR 79668, Dec. 19, 2000]



Sec. 774.15  Permit renewals.

    (a) General. A valid permit, issued pursuant to an approved 
regulatory program, shall carry with it the right

[[Page 217]]

of successive renewal, within the approved boundaries of the existing 
permit, upon expiration of the term of the permit.
    (b) Application requirements and procedures. (1) An application for 
renewal of a permit shall be filed with the regulatory authority at 
least 120 days before expiration of the existing permit term.
    (2) An application for renewal of a permit shall be in the form 
required by the regulatory authority and shall include at a minimum--
    (i) The name and address of the permittee, the term of the renewal 
requested, and the permit number or other identifier;
    (ii) Evidence that a liability insurance policy or adequate self-
insurance under Sec. 800.60 of this chapter will be provided by the 
applicant for the proposed period of renewal;
    (iii) Evidence that the performance bond in effect for the operation 
will continue in full force and effect for any renewal requested, as 
well as any additional bond required by the regulatory authorities 
pursuant to subchapter J of this chapter;
    (iv) A copy of the proposed newspaper notice and proof of 
publication of same, as required by Sec. 778.21 of this chapter; and
    (v) Additional revised or updated information required by the 
regulatory authority.
    (3) Applications for renewal shall be subject to the requirements of 
public notification and public participation contained in Sec. Sec. 
773.6 and 773.19(b) of this chapter.
    (4) If an application for renewal includes any proposed revisions to 
the permit, such revisions shall be identified and subject to the 
requirements of Sec. 774.13.
    (c) Approval process--(1) Criteria for approval. The regulatory 
authority shall approve a complete and accurate application for permit 
renewal, unless it finds, in writing that--
    (i) The terms and conditions of the existing permit are not being 
satisfactorily met;
    (ii) The present surface coal mining and reclamation operations are 
not in compliance with the environmental protection standards of the Act 
and the regulatory program;
    (iii) The requested renewal substantially jeopardizes the operator's 
continuing ability to comply with the Act and the regulatory program on 
existing permit areas;
    (iv) The operator has not provided evidence of having liability 
insurance or self-insurance as required in Sec. 800.60 of this chapter;
    (v) The operator has not provided evidence that any performance bond 
required to be in effect for the operation will continue in full force 
and effect for the proposed period of renewal, as well as any additional 
bond the regulatory authority might require pursuant to subchapter J of 
this chapter; or
    (vi) Additional revised or updated information required by the 
regulatory authority has not been provided by the applicant.
    (2) Burden of proof. In the determination of whether to approve or 
deny a renewal of a permit, the burden of proof shall be on the 
opponents of renewal.
    (3) Alluvial valley floor variance. If the surface coal mining and 
reclamation operation authorized by the original permit was not subject 
to the standards contained in sections 510(b)(5) (A) and (B) of the Act 
and Sec. 785.19 of this chapter, because the permittee complied with 
the exceptions in the proviso to section 510(b)(5) of the Act, the 
portion of the application for renewal of the permit that addresses new 
land areas previously identified in the reclamation plan for the 
original permit shall not be subject to the standards contained in 
sections 510(b)(5) (A) and (B) of the Act and Sec. 785.19 of this 
chapter.
    (d) Renewal term. Any permit renewal shall be for a term not to 
exceed the period of the original permit established under Sec. 773.19.
    (e) Notice of decision. The regulatory authority shall send copies 
of its decision to the applicant, to each person who filed comments or 
objections on the renewal, to each party to any informal conference held 
on the permit renewal, and to OSM if OSM is not the regulatory 
authority.
    (f) Administrative and judicial review. Any person having an 
interest which is

[[Page 218]]

or may be adversely affected by the decision of the regulatory authority 
shall have the right to administrative and judicial review set forth in 
part 775 of this chapter.

[48 FR 44395, Sept. 28, 1983, as amended at 65 FR 79668, Dec. 19, 2000]



Sec. 774.17  Transfer, assignment, or sale of permit rights.

    (a) General. No transfer, assignment, or sale of rights granted by a 
permit shall be made without the prior written approval of the 
regulatory authority. At its discretion, the regulatory authority may 
allow a prospective successor in interest to engage in surface coal 
mining and reclamation operations under the permit during the pendency 
of an application for approval of a transfer, assignment, or sale of 
permit rights submitted under paragraph (b) of this section, provided 
that the prospective successor in interest can demonstrate to the 
satisfaction of the regulatory authority that sufficient bond coverage 
will remain in place.
    (b) Application requirements. An applicant for approval of the 
transfer, assignment, or sale of permit rights shall--
    (1) Provide the regulatory authority with an application for 
approval of the proposed transfer, assignment, or sale including--
    (i) The name and address of the existing permittee and permit number 
or other identifier;
    (ii) A brief description of the proposed action requiring approval; 
and
    (iii) The legal, financial, compliance, and related information 
required by part 778 of this chapter for the applicant for approval of 
the transfer, assignment, or sale of permit rights.
    (2) Advertise the filing of the application in a newspaper of 
general circulation in the locality of the operations involved, 
indicating the name and address of the applicant, the permittee, the 
permit number or other identifier, the geographic location of the 
permit, and the address to which written comments may be sent;
    (3) Obtain appropriate performance bond coverage in an amount 
sufficient to cover the proposed operations, as required under 
subchapter J of this chapter.
    (c) Public participation. Any person having an interest which is or 
may be adversely affected by a decision on the transfer, assignment, or 
sale of permit rights, including an official of any Federal, State, or 
local government agency, may submit written comments on the application 
to the regulatory authority within a time specified by the regulatory 
authority.
    (d) Criteria for approval. The regulatory authority may allow a 
permittee to transfer, assign, or sell permit rights to a successor, if 
it finds in writing that the successor--
    (1) Is eligible to receive a permit in accordance with Sec. Sec. 
773.12 and 773.14 of this chapter;
    (2) Has submitted a performance bond or other guarantee, or obtained 
the bond coverage of the original permittee, as required by subchapter J 
of this chapter; and
    (3) Meets any other requirements specified by the regulatory 
authority.
    (e) Notification. (1) The regulatory authority shall notify the 
permittee, the successor, commenters, and OSM, if OSM is not the 
regulatory authority, of its findings.
    (2) The successor shall immediately provide notice to the regulatory 
authority of the consummation of the transfer, assignment, or sale of 
permit rights.
    (f) Continued operation under existing permit. The successor in 
interest shall assume the liability and reclamation responsibilities of 
the existing permit and shall conduct the surface coal mining and 
reclamation operations in full compliance with the Act, the regulatory 
program, and the terms and conditions of the existing permit, unless the 
applicant has obtained a new or revised permit as provided in this 
subchapter.

[48 FR 44395, Sept. 28, 1983, as amended at 65 FR 79668, Dec. 19, 2000; 
72 FR 68030, Dec. 3, 2007]



PART 775_ADMINISTRATIVE AND JUDICIAL REVIEW OF DECISIONS--Table of Contents



Sec.
775.1 Scope and purpose.
775.11 Administrative review.

[[Page 219]]

775.13 Judicial review.

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

    Source: 48 FR 44397, Sept. 28, 1983, unless otherwise noted.



Sec. 775.1  Scope and purpose.

    This part provides requirements for administrative and judicial 
review of decisions on permits.



Sec. 775.11  Administrative review.

    (a) General. Within 30 days after an applicant or permittee is 
notified of the decision of the regulatory authority concerning an 
application for approval of exploration required under part 772 of this 
chapter, a permit for surface coal mining and reclamation operations, a 
permit revision, a permit renewal, or a transfer, assignment, or sale of 
permit rights, the applicant, permittee, or any person with an interest 
which is or may be adversely affected may request a hearing on the 
reasons for the decision, in accordance with this section.
    (b) Administrative hearings under State programs. (1) The regulatory 
authority shall start the administrative hearing within 30 days of such 
request. The hearing shall be on the record and adjudicatory in nature. 
No person who presided at an informal conference under Sec. 773.6(c) 
shall either preside at the hearing or participate in the decision 
following the hearing or administrative appeal.
    (2) The regulatory authority may, under such conditions as it 
prescribes, grant such temporary relief as it deems appropriate, pending 
final determination of the proceeding, if--
    (i) All parties to the proceeding have been notified and given an 
opportunity to be heard on a request for temporary relief;
    (ii) The person requesting that relief shows that there is a 
substantial likelihood that he or she will prevail on the merits of the 
final determination of the proceeding;
    (iii) The relief sought will not adversely affect the public health 
or safety, or cause significant, imminent environmental harm to land, 
air, or water resources; and
    (iv) The relief sought is not the issuance of a permit where a 
permit has been denied, in whole or in part, by the regulatory authority 
except that continuation under an existing permit may be allowed where 
the operation has a valid permit issued under section 510 of the Act.
    (3) The hearing shall be conducted under the following conditions:
    (i) The hearing authority may administer oaths and affirmations, 
subpoena witnesses and written or printed materials, compel attendance 
of witnesses or production of those materials, compel discovery, and 
take evidence, including, but not limited to, site inspections of the 
land to be affected and other surface coal mining and reclamation 
operations carried on by the applicant in the general vicinity of the 
proposed operations.
    (ii) A verbatim record of each public hearing required by this 
section shall be made, and a transcript made available on the motion of 
any party or by order of the hearing authority.
    (iii) Ex parte contacts between representatives of the parties 
appearing before the hearing authority and the hearing authority shall 
be prohibited.
    (4) Within 30 days after the close of the record, the hearing 
authority shall issue and furnish the applicant and each person who 
participated in the hearing with the written findings of fact, 
conclusions of law, and order of the hearing authority with respect to 
the appeal of the decision.
    (5) The burden of proof at such hearings shall be on the party 
seeking to reverse the decision of the regulatory authority.
    (c) Administrative hearings under Federal programs and Federal lands 
programs. All hearings, under a Federal program for a State or a Federal 
lands program except as may be modified by a cooperative agreement 
pursuant to part 745 of this chapter, on an application for approval of 
exploration, a permit for surface coal mining and reclamation 
operations, permit revision, a permit renewal, or a transfer, 
assignment, or sale of permit rights shall be of record and governed by 
5 U.S.C. 554 and 43 CFR part 4.

[48 FR 44397, Sept. 28, 1983, as amended at 65 FR 79668, Dec. 19, 2000]

[[Page 220]]



Sec. 775.13  Judicial review.

    (a) General. Any applicant or any person with an interest which is 
or may be adversely affected and who has participated in the 
administrative hearings as an objector may appeal as provided in 
paragraph (b) or (c) of this section if--
    (1) The applicant or person is aggrieved by the decision of the 
hearing authority in the administrative hearing conducted pursuant to 
Sec. 775.11 of this chapter; or
    (2) Either the regulatory authority or the hearing authority for 
administrative review under Sec. 775.11 of this chapter fails to act 
within applicable time limits specified in the Act, this chapter, or the 
regulatory program.
    (b) Judicial review under State programs. The action of the hearing 
authority identified in paragraph (a) of this section shall be subject 
to judicial review by a court of competent jurisdiction, as provided for 
in the State program, but the availability of such review shall not be 
construed to limit the operation of the rights established in section 
520 of the Act.
    (c) Judicial review under Federal programs and Federal lands 
programs. The action of the hearing authority identified in paragraph 
(a) of this section is subject to judicial review by the U.S. District 
Court for the district where the coal exploration or surface coal mining 
and reclamation operation is or would be located, except for judicial 
review of State regulatory authority actions in a State court of 
competent jurisdiction as may be provided for in a cooperative 
agreement, in the time and manner provided for in section 526 (a)(2), 
(b) and (e) of the Act. The availability of such review shall not be 
construed to limit the operation of the rights established in section 
520 of the Act.



PART 777_GENERAL CONTENT REQUIREMENTS FOR PERMIT APPLICATIONS--Table of 

Contents



Sec.
777.1 Scope.
777.10 Information collection.
777.11 Format and contents.
777.13 Reporting of technical data.
777.14 Maps and plans: General requirements.
777.15 Completeness.
777.17 Permit fees.

    Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq.

    Source: 48 FR 44398, Sept. 28, 1983, unless otherwise noted.



Sec. 777.1  Scope.

    This part provides minimum requirements concerning the general 
content for permit applications under a State or Federal program.



Sec. 777.10  Information collection.

    The information collection requirements contained in part 777 have 
been approved by the Office of Management and Budget under 44 U.S.C. 
3507 and assigned clearance number 1029-0032. The information is being 
collected to meet the requirements of sections 507, 508, and 510(b) of 
the Act. It provides general requirements for permit application format 
and contents. The obligation to respond is mandatory.



Sec. 777.11  Format and contents.

    (a) An application shall--
    (1) Contain current information, as required by this subchapter;
    (2) Be clear and concise; and
    (3) Be filed in the format required by the regulatory authority.
    (b) If used in the application, referenced materials shall either be 
provided to the regulatory authority by the applicant or be readily 
available to the regulatory authority. If provided, relevant portions of 
referenced published materials shall be presented briefly and concisely 
in the application by photocopying or abstracting and with explicit 
citations.
    (c) Applications for permits; revisions; renewals; or transfers, 
sales or assignments of permit rights shall be verified under oath, by a 
responsible official of the applicant, that the information contained in 
the application is true and correct to the best of the official's 
information and belief.



Sec. 777.13  Reporting of technical data.

    (a) All technical data submitted in the application shall be 
accompanied by the names of persons or organizations that collected and 
analyzed the data, dates of the collection and analysis of the data, and 
descriptions of the

[[Page 221]]

methodology used to collect and analyze the data.
    (b) Technical analyses shall be planned by or under the direction of 
a professional qualified in the subject to be analyzed.



Sec. 777.14  Maps and plans: General requirements.

    (a) Maps submitted with applications shall be presented in a 
consolidated format, to the extent possible, and shall include all the 
types of information that are set forth on topographic maps of the U.S. 
Geological Survey of the 1:24,000 scale series. Maps of the permit area 
shall be at a scale of 1:6,000 or larger. Maps of the adjacent area 
shall clearly show the lands and waters within those areas and be in a 
scale determined by the regulatory authority, but in no event smaller 
than 1:24,000.
    (b) All maps and plans submitted with the application shall 
distinguish among each of the phases during which surface coal mining 
operations were or will be conducted at any place within the life of 
operations. At a minimum, distinctions shall be clearly shown among 
those portions of the life of operations in which surface coal mining 
operations occurred--
    (1) Prior to August 3, 1977;
    (2) After August 3, 1977, and prior to either--
    (i) May 3, 1978; or
    (ii) In the case of an applicant or operator which obtained a small 
operator's exemption in accordance with Sec. 710.12 of this chapter, 
January 1, 1979;
    (3) After May 3, 1978 (or January 1, 1979, for persons who received 
a small operator's exemption) and prior to the approval of the 
applicable regulatory program;
    (4) After the estimated date of issuance of a permit by the 
regulatory authority under the approved regulatory program.



Sec. 777.15  Completeness.

    An application for a permit to conduct surface coal mining and 
reclamation operations shall be complete and shall include at a 
minimum--
    (a) For surface mining activities, the information required under 
parts 778, 779, and 780 of this chapter, and, as applicable to the 
operation, part 785 of this chapter; and
    (b) For underground mining activities, the information required 
under parts 778, 783, and 784 of this chapter, and, as applicable to the 
operation, part 785 of this chapter.



Sec. 777.17  Permit fees.

    An application for a surface coal mining and reclamation permit 
shall be accompanied by a fee determined by the regulatory authority. 
The fee may be less than, but shall not exceed, the actual or 
anticipated cost of reviewing, administering, and enforcing the permit. 
The regulatory authority may develop procedures to allow the fee to be 
paid over the term of the permit.



PART 778_PERMIT APPLICATIONS_MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, 

COMPLIANCE, AND RELATED INFORMATION--Table of Contents



Sec.
778.1 Scope and purpose.
778.8 Information collection.
778.9 Certifying and updating existing permit application information.
778.11 Providing applicant and operator information.
778.12 Providing permit history information.
778.13 Providing property interest information.
778.14 Providing violation information.
778.15 Right-of-entry information.
778.16 Status of unsuitability claims.
778.17 Permit term.
778.18 Insurance.
778.21 Proof of publication
778.22 Facilities or structures used in common.

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

    Source: 48 FR 44399, Sept. 28, 1983, unless otherwise noted.



Sec. 778.1  Scope and purpose.

    This part establishes the minimum requirements for the permit 
applications for surface coal mining and reclamation operations under a 
State or Federal program. This part covers minimum legal, financial, and 
compliance requirements and general information that must be contained 
in permit applications. This part applies to any person

[[Page 222]]

who submits an application to a regulatory authority for a permit to 
conduct surface coal mining and reclamation operations.



Sec. 778.8  Information collection.

    The collections of information contained in part 778 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0117. The information collected 
will be used by the regulatory authority to ensure that all legal, 
financial, and compliance information requirements are satisfied before 
issuance of a permit. Persons intending to conduct surface coal mining 
operations must respond to obtain a benefit. A Federal agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. Response is required to obtain a benefit in accordance 
with SMCRA. Send comments regarding burden estimates or any other aspect 
of this collection of information, including suggestions for reducing 
the burden, to the Office of Surface Mining Reclamation and Enforcement, 
Information Collection Clearance Officer, Room 202-SIB, 1951 
Constitution Avenue, NW., Washington, DC 20240.

[ 72 FR 68031, Dec. 3, 2007]



Sec. 778.9  Certifying and updating existing permit application information.

    In this section, ``you'' means the applicant and ``we'' or ``us'' 
means the regulatory authority.
    (a) If you have previously applied for a permit and the required 
information is already in AVS, then you may update the information as 
shown in the following table.

------------------------------------------------------------------------
                If . . .                          then you . . .
------------------------------------------------------------------------
(1) All or part of the information       may certify to us by swearing
 already in AVS is accurate and           or affirming, under oath and
 complete.                                in writing, that the relevant
                                          information in AVS is
                                          accurate, complete, and up to
                                          date.
(2) Part of the information in AVS is    must submit to us the necessary
 missing or incorrect.                    information or corrections and
                                          swear or affirm, under oath
                                          and in writing, that the
                                          information you submit is
                                          accurate and complete.
(3) You can neither certify that the     must include in your permit
 data in AVS is accurate and complete     application the information
 nor make needed corrections.             required under this part.
------------------------------------------------------------------------

    (b) You must swear or affirm, under oath and in writing, that all 
information you provide in an application is accurate and complete.
    (c) We may establish a central file to house your identity 
information, rather than place duplicate information in each of your 
permit application files. We will make the information available to the 
public upon request.
    (d) After we approve an application, but before we issue a permit, 
you must update, correct, or indicate that no change has occurred in the 
information previously submitted under this section and Sec. Sec. 
778.11 through 778.14 of this part.

[65 FR 79668, Dec. 19, 2000]



Sec. 778.11  Providing applicant and operator information.

    (a) You, the applicant, must provide in the permit application--
    (1) A statement indicating whether you and your operator are 
corporations, partnerships, associations, sole proprietorships, or other 
business entities;
    (2) Taxpayer identification numbers for you and your operator.
    (b) You must provide the name, address, and telephone number for--
    (1) The applicant.
    (2) Your resident agent who will accept service of process.
    (3) Any operator, if different from the applicant.
    (4) Each business entity in the applicant's and operator's 
organizational structure, up to and including the ultimate parent entity 
of the applicant and operator; for every such business entity, you must 
also provide the required information for every president, chief 
executive officer, and director (or persons in similar positions), and 
every person who owns, of record, 10 percent or more of the entity.

[[Page 223]]

    (c) For you and your operator, you must provide the information 
required by paragraph (d) of this section for every--
    (1) Officer.
    (2) Partner.
    (3) Member.
    (4) Director.
    (5) Person performing a function similar to a director.
    (6) Person who owns, of record, 10 percent or more of the applicant 
or operator.
    (d) You must provide the following information for each person 
listed in paragraph (c) of this section--
    (1) The person's name, address, and telephone number.
    (2) The person's position title and relationship to you, including 
percentage of ownership and location in the organizational structure.
    (3) The date the person began functioning in that position.
    (e) We need not make a finding as provided for under Sec. 774.11(g) 
of this subchapter before entering into AVS the information required to 
be disclosed under this section; however, the mere listing in AVS of a 
person identified in paragraph (b) or (c) of this section does not 
create a presumption or constitute a determination that such person owns 
or controls a surface coal mining operation.

[65 FR 79668, Dec. 19, 2000, as amended at 72 FR 68031, Dec. 3, 2007]



Sec. 778.12  Providing permit history information.

    (a) You, the applicant, must provide a list of all names under which 
you, your operator, your partners or principal shareholders, and your 
operator's partners or principal shareholders operate or previously 
operated a surface coal mining operation in the United States within the 
five-year period preceding the date of submission of the application.
    (b) For you and your operator, you must provide a list of any 
pending permit applications for surface coal mining operations filed in 
the United States. The list must identify each application by its 
application number and jurisdiction, or by other identifying information 
when necessary.
    (c) For any surface coal mining operations that you or your operator 
owned or controlled within the five-year period preceding the date of 
submission of the application, and for any surface coal mining operation 
you or your operator own or control on that date, you must provide the--
    (1) Permittee's and operator's name and address;
    (2) Permittee's and operator's taxpayer identification numbers;
    (3) Federal or State permit number and corresponding MSHA number;
    (4) Regulatory authority with jurisdiction over the permit; and
    (5) Permittee's and operator's relationship to the operation, 
including percentage of ownership and location in the organizational 
structure.

[65 FR 79669, Dec. 19, 2000]



Sec. 778.13  Providing property interest information.

    You, the applicant, must provide in the permit application all of 
the following information for the property to be mined--
    (a) The name and address of--
    (1) Each legal or equitable owner(s) of record of the surface and 
mineral.
    (2) The holder(s) of record of any leasehold interest.
    (3) Any purchaser(s) of record under a real estate contract.
    (b) The name and address of each owner of record of all property 
(surface and subsurface) contiguous to any part of the proposed permit 
area.
    (c) A statement of all interests, options, or pending bids you hold 
or have made for lands contiguous to the proposed permit area. If you 
request in writing, we will hold as confidential, under Sec. 
773.6(d)(3)(ii) of this chapter, any information you are required to 
submit under this paragraph which is not on public file under State law.
    (d) The Mine Safety and Health Administration (MSHA) numbers for all 
structures that require MSHA approval.

[65 FR 79669, Dec. 19, 2000]



Sec. 778.14  Providing violation information.

    (a) You, the applicant, must state, in your permit application, 
whether you,

[[Page 224]]

your operator, or any subsidiary, affiliate, or entity which you or your 
operator own or control or which is under common control with you or 
your operator, has--
    (1) Had a Federal or State permit for surface coal mining operations 
suspended or revoked during the five-year period preceding the date of 
submission of the application; or
    (2) Forfeited a performance bond or similar security deposited in 
lieu of bond in connection with surface coal mining and reclamation 
operations during the five-year period preceding the date of submission 
of the application.
    (b) For each suspension, revocation, or forfeiture identified under 
paragraph (a), you must provide a brief explanation of the facts 
involved, including the--
    (1) Permit number.
    (2) Date of suspension, revocation, or forfeiture, and, when 
applicable, the amount of bond or similar security forfeited.
    (3) Regulatory authority that suspended or revoked the permit or 
forfeited the bond and the stated reasons for the action.
    (4) Current status of the permit, bond, or similar security 
involved.
    (5) Date, location, type, and current status of any administrative 
or judicial proceedings concerning the suspension, revocation, or 
forfeiture.
    (c) A list of all violation notices you or your operator received 
for any surface coal mining and reclamation operation during the three-
year period preceding the date of submission of the application. In 
addition you must submit a list of all unabated or uncorrected violation 
notices incurred in connection with any surface coal mining and 
reclamation operation that you or your operator own or control on that 
date. For each violation notice reported, you must include the following 
information, when applicable--
    (1) The permit number and associated MSHA number.
    (2) The issue date, identification number, and current status of the 
violation notice.
    (3) The name of the person to whom the violation notice was issued,
    (4) The name of the regulatory authority or agency that issued the 
violation notice.
    (5) A brief description of the violation alleged in the notice.
    (6) The date, location, type, and current status of any 
administrative or judicial proceedings concerning the violation notice.
    (7) If the abatement period for a violation in a notice of violation 
issued under Sec. 843.12 of this chapter, or its State regulatory 
program equivalent, has not expired, certification that the violation is 
being abated or corrected to the satisfaction of the agency with 
jurisdiction over the violation.
    (8) For all violations not covered by paragraph (c)(7) of this 
section, the actions taken to abate or correct the violation.

[65 FR 79669, Dec. 19, 2000]



Sec. 778.15  Right-of-entry information.

    (a) An application shall contain a description of the documents upon 
which the applicant bases his legal right to enter and begin surface 
coal mining and reclamation operations in the permit area and shall 
state whether that right is the subject of pending litigation. The 
description shall identify the documents by type and date of execution, 
identify the specific lands to which the document pertains, and explain 
the legal rights claimed by the applicant.
    (b) Where the private mineral estate to be mined has been severed 
from the private surface estate, an applicant shall also submit--
    (1) A copy of the written consent of the surface owner for the 
extraction of coal by surface mining methods;
    (2) A copy of the conveyance that expressly grants or reserves the 
right to extract coal by surface mining methods; or
    (3) If the conveyance does not expressly grant the right to extract 
the coal by surface mining methods, documentation that under applicable 
State law, the applicant has the legal authority to extract the coal by 
those methods.
    (c) Nothing in this section shall be construed to provide the 
regulatory authority with the authority to adjudicate property rights 
disputes.

[[Page 225]]



Sec. 778.16  Status of unsuitability claims.

    (a) An application shall contain available information as to whether 
the proposed permit area is within an area designated as unsuitable for 
surface coal mining and reclamation operations or is within an area 
under study for designation in an administrative proceeding under parts 
762, 764, and 769 of this chapter.
    (b) An application in which the applicant claims the exemption 
described in Sec. 762.13(c) of this chapter shall contain information 
supporting the assertion that the applicant made substantial legal and 
financial commitments before January 4, 1977, concerning the proposed 
surface coal mining and reclamation operations.
    (c) An application that proposes to conduct surface coal mining 
operations within 100 feet of a public road or within 300 feet of an 
occupied dwelling must meet the requirements of Sec. 761.14 or Sec. 
761.15 of this chapter, respectively.

[48 FR 44399, Sept. 28, 1983, as amended at 64 FR 70837, Dec. 17, 1999]



Sec. 778.17  Permit term.

    (a) Each application shall state the anticipated or actual starting 
and termination date of each phase of the surface coal mining and 
reclamation operation and the anticipated number of acres of land to be 
affected during each phase of mining over the life of the mine.
    (b) If the applicant requires an initial permit term in excess of 5 
years in order to obtain necessary financing for equipment and the 
opening of the operation, the application shall--
    (1) Be complete and accurate covering the specified longer term; and
    (2) Show that the proposed longer term is reasonably needed to allow 
the applicant to obtain financing for equipment and for the opening of 
the operation with the need confirmed, in writing, by the applicant's 
proposed source of financing.



Sec. 778.18  Insurance.

    An application shall contain either a certificate of liability 
insurance or evidence of self-insurance in compliance with Sec. 800.60 
of this chapter.



Sec. 778.21  Proof of publication.

    A copy of the newspaper advertisements of the application for a 
permit, significant revision of a permit, or renewal of a permit, or 
proof of publication of the advertisements which is acceptable to the 
regulatory authority shall be filed with the regulatory authority and 
shall be made a part of the application not later than 4 weeks after the 
last date of publication as required by Sec. 773.6(a)(1) of this 
chapter.

[48 FR 44399, Sept. 28, 1983, as amended at 65 FR 79669, Dec. 19, 2000]



Sec. 778.22  Facilities or structures used in common.

    The plans of a facility or structure that is to be shared by two or 
more separately permitted mining operations may be included in one 
permit application and referenced in the other applications. In 
accordance with part 800 of this chapter, each permittee shall bond the 
facility or structure unless the permittees sharing it agree to another 
arrangement for assuming their respective responsibilities. If such 
agreement is reached, then the application shall include a copy of the 
agreement between or among the parties setting forth the respective 
bonding responsibilities of each party for the facility or structure. 
The agreement shall demonstrate to the satisfaction of the regulatory 
authority that all responsibilities under this chapter for the facility 
or structure will be met.



PART 779_SURFACE MINING PERMIT APPLICATIONS_MINIMUM REQUIREMENTS FOR 

INFORMATION ON ENVIRONMENTAL RESOURCES--Table of Contents



Sec.
779.1 Scope.
779.2 Objectives.
779.4 Responsibilities.
779.10 Information collection.
779.11 General requirements.
779.12 General environmental resources information.
779.18 Climatological information.
779.19 Vegetation information.
779.20 [Reserved]
779.21 Soil resources information.
779.24 Maps: General requirements.
779.25 Cross sections, maps, and plans.


[[Page 226]]


    Authority: 30 U.S.C. 1201 et seq.; sec. 115 of Pub. L. 98-146, (30 
U.S.C. 1257), and 16 U.S.C. 470 et seq.

    Source: 44 FR 15354, Mar. 13, 1979, unless otherwise noted.



Sec. 779.1  Scope.

    This part establishes the minimum requirements for the Secretary's 
approval of regulatory program provisions for the environmental 
resources contents of applications for surface mining activities.



Sec. 779.2  Objectives.

    The objectives of this part are to ensure that each application 
provides to the regulatory authority a complete and accurate description 
of the environmental resources that may be impacted or affected by 
proposed surface mining activities.



Sec. 779.4  Responsibilities.

    (a) It is the responsibility of the applicant to provide, except 
where specifically exempted in this part, all information required by 
this part in the application.
    (b) It is the responsibility of State and Federal government 
agencies to provide information for applications as specifically 
required by this part.



Sec. 779.10  Information collection.

    The information collection requirements contained in 30 CFR 779.11, 
779.12, 779.13, 779.14, 779.15, 779.16, 779.17, 779.18, 779.19, 779.21, 
779.22, 779.24, 779.25 and 779.27 have been approved by the Office of 
Management and Budget under 44 U.S.C. 3507 and assigned clearance number 
1029-0035. The information is being collected to meet the requirements 
of sections 507 and 508 of Pub. L. 95-87, which require the applicant to 
present an adequate description of the existing pre-mining environmental 
resources within and around the proposed mine plan area. This 
information will be used by the regulatory authority to determine 
whether the applicant can comply with the performance standards of the 
regulations for surface coal mining and whether reclamation of these 
areas is feasible. The obligation to respond is mandatory.

[47 FR 33686, Aug. 4, 1982, as amended at 52 FR 47359, Dec. 11, 1987]



Sec. 779.11  General requirements.

    Each permit application shall include a description of the existing, 
premining environmental resources within the proposed permit area and 
adjacent areas that may be affected or impacted by the proposed surface 
mining activities.

[44 FR 15354, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 779.12  General environmental resources information.

    Each application shall describe and identify--
    (a) The lands subject to surface coal mining operations over the 
estimated life of those operations and the size, sequence, and timing of 
the subareas for which it is anticipated that individual permits for 
mining will be sought; and
    (b)(1) The nature of cultural, historic and archeological resources 
listed or eligible for listing on the National Register of Historic 
Places and known archeological sites within the proposed permit and 
adjacent areas. The description shall be based on all available 
information, including, but not limited to, information from the State 
Historic Preservation Officer and from local archeological, historical, 
and cultural preservation agencies.
    (2) The regulatory authority may require the applicant to identify 
and evaluate important historic and archeological resources that may be 
eligible for listing on the National Register of Historic Places, 
through
    (i) Collection of additional information,
    (ii) Conduct of field investigations, or
    (iii) Other appropriate analyses.

[44 FR 15354, Mar. 13, 1979, as amended at 48 FR 14822, Apr. 5, 1983; 52 
FR 4262, Feb. 10, 1987]



Sec. 779.18  Climatological information.

    (a) When requested by the regulatory authority, the application 
shall contain a statement of the climatological factors that are 
representative of the proposed permit area, including:
    (1) The average seasonal precipitation;
    (2) The average direction and velocity of prevailing winds; and
    (3) Seasonal temperature ranges.

[[Page 227]]

    (b) The regulatory authority may request such additional data as 
deemed necessary to ensure compliance with the requirements of this 
subchapter.

[44 FR 15354, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 779.19  Vegetation information.

    (a) The permit application shall, if required by the regulatory 
authority, contain a map that delineates existing vegetative types and a 
description of the plant communities within the proposed permit area and 
within any proposed reference area. This description shall include 
information adequate to predict the potential for reestablishing 
vegetation.
    (b) When a map or aerial photograph is required, sufficient adjacent 
areas shall be included to allow evaluation of vegetation as important 
habitat for fish and wildlife for those species of fish and wildlife 
identified under 30 CFR 780.16.

[44 FR 15354, Mar. 13, 1979, as amended at 52 FR 47359, Dec. 11, 1987]



Sec. 779.20  [Reserved]



Sec. 779.21  Soil resources information.

    (a) The applicant shall provide adequate soil survey information of 
the permit area consisting of the following:
    (1) A map delineating different soils;
    (2) Soil identification;
    (3) Soil description; and
    (4) Present and potential productivity of existing soils.
    (b) Where the applicant proposes to use selected overburden 
materials as a supplement or substitute for topsoil, the application 
shall provide results of the analyses, trials, and tests required under 
30 CFR 816.22.

    Editorial Note: For a document temporarily suspending Sec. 779.21 
in part, see 45 FR 51548, Aug. 4, 1980.



Sec. 779.24  Maps: General requirements.

    The permit application shall include maps showing--
    (a) All boundaries of lands and names of present owners of record of 
those lands, both surface and subsurface, included in or contiguous to 
the permit area;
    (b) The boundaries of land within the proposed permit area upon 
which the applicant has the legal right to enter and begin surface 
mining activities;
    (c) The boundaries of all areas proposed to be affected over the 
estimated total life of the proposed surface mining activities, with a 
description of size, sequence, and timing of the mining of sub-areas for 
which it is anticipated that additional permits will be sought;
    (d) The location of all buildings on and within 1,000 feet of the 
proposed permit area, with identification of the current use of the 
buildings;
    (e) The location of surface and sub-surface man-made features 
within, passing through, or passing over the proposed permit area, 
including, but not limited to major electric transmission lines, 
pipelines, and agricultural drainage tile fields;
    (f) The location and boundaries of any proposed reference areas for 
determining the success of revegetation;
    (g) The locations of water supply intakes for current users of 
surface water flowing into, out of, and within a hydrologic area defined 
by the regulatory authority, and those surface waters which will receive 
discharges from affected areas in the proposed permit area;
    (h) Each public road located in or within 100 feet of the proposed 
permit area;
    (i) The boundaries of any public park and locations of any cultural 
or historical resources listed or eligible for listing in the National 
Register of Historic Places and known archeological sites within the 
permit and adjacent areas.
    (j) Each cemetery that is located in or within 100 feet of the 
proposed permit area.
    (k) Any land within the proposed permit area which is within the 
boundaries of any units of the National System of Trails or the Wild and 
Scenic Rivers System, including study rivers designated under section 
5(a) of the Wild and Scenic Rivers Act; and
    (l) Other relevant information required by the regulatory authority.

[44 FR 15354, Mar. 13, 1979; 44 FR 49685, Aug. 24, 1979, as amended at 
45 FR 51550, Aug. 4, 1980; 48 FR 14822, Apr. 5, 1983; 52 FR 4262, Feb. 
10, 1987]

[[Page 228]]



Sec. 779.25  Cross sections, maps, and plans.

    (a) The application shall include cross sections, maps, and plans 
showing--
    (1) Elevations and locations of test borings and core samplings;
    (2) Elevations and locations of monitoring stations used to gather 
data for water quality and quantity, fish and wildlife, and air quality, 
if required, in preparation of the application;
    (3) Nature, depth, and thickness of the coal seams to be mined, any 
coal or rider seams above the seam to be mined, each stratum of the 
overburden, and the stratum immediately below the lowest coal seam to be 
mined;
    (4) All coal crop lines and the strike and dip of the coal to be 
mined within the proposed permit area;
    (5) Location and extent of known workings of active, inactive, or 
abandoned underground mines, including mine openings to the surface 
within the proposed permit and adjacent areas;
    (6) Location and extent of sub-surface water, if encountered, within 
the proposed permit or adjacent areas;
    (7) Location of surface water bodies such as streams, lakes, ponds, 
springs, constructed or natural drains, and irrigation ditches within 
the proposed permit and adjacent areas;
    (8) Location and extent of existing or previously surface-mined 
areas within the proposed permit area;
    (9) Location and dimensions of existing areas of spoil, waste, and 
non-coal waste disposal, dams, embankments, other impoundments, and 
water treatment and air pollution control facilities within the proposed 
permit area;
    (10) Location, and depth if available, of gas and oil wells within 
the proposed permit area and water wells in the permit area and adjacent 
area;
    (b) Cross sections, maps and plans included in a permit application 
as required by this section shall be prepared by, or under the direction 
of, and certified by a qualified, registered, professional engineer, a 
professional geologist, or in any State which authorizes land surveyors 
to prepare and certify such cross sections, maps and plans, a qualified, 
registered, professional, land surveyor, with assistance from experts in 
related fields such as landscape architecture, and shall be updated as 
required by the regulatory authority.

[44 FR 15354, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980; 50 
FR 16198, Apr. 24, 1985; 59 FR 27937, May 27, 1994]



PART 780_SURFACE MINING PERMIT APPLICATIONS_MINIMUM REQUIREMENTS FOR 

RECLAMATION AND OPERATION PLAN--Table of Contents



Sec.
780.1 Scope.
780.2 Objectives.
780.4 Responsibilities.
780.10 Information collection.
780.11 Operation plan: General requirements.
780.12 Operation plan: Existing structures.
780.13 Operation plan: Blasting.
780.14 Operation plan: Maps and plans.
780.15 Air pollution control plan.
780.16 Fish and wildlife information.
780.18 Reclamation plan: General requirements.
780.21 Hydrologic information.
780.22 Geologic information.
780.23 Reclamation plan: Land use information.
780.25 Reclamation plan: Siltation structures, impoundments, and refuse 
          piles.
780.27 Reclamation plan: Surface mining near underground mining.
780.28 Activities in or adjacent to perennial or intermittent streams.
780.29 Diversions.
780.31 Protection of publicly owned parks and historic places.
780.33 Relocation or use of public roads.
780.35 Disposal of excess spoil.
780.37 Road systems.
780.38 Support facilities.

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.

    Source: 44 FR 15357, Mar. 13, 1979, unless otherwise noted.



Sec. 780.1  Scope.

    This part provides the minimum requirements for the Secretary's 
approval of regulatory program provisions for the mining operations and 
reclamation plan portions of applications for permits for surface mining 
activities, except to the extent that different requirements for those 
plans are established under 30 CFR part 785.

[[Page 229]]



Sec. 780.2  Objectives.

    The objectives of this part are to insure that the regulatory 
authority is provided with comprehensive and reliable information on 
proposed surface mining activities, and to ensure that those activities 
are allowed to be conducted only in compliance with the Act, this 
chapter, and the regulatory program.



Sec. 780.4  Responsibilities.

    (a) It is the responsibility of the applicant to provide to the 
regulatory authority all of the information required by this part, 
except where specifically exempted in this part.
    (b) It is the responsibility of State and Federal governmental 
agencies to provide information to the regulatory authority where 
specifically required in this part.



Sec. 780.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
this part and assigned clearance number 1029-0036. Sections 507 and 508 
of SMCRA contain permit application requirements for surface coal mining 
activities, including a requirement that the application include an 
operation and reclamation plan. The regulatory authority uses this 
information to determine whether the proposed surface coal mining 
operation will achieve the environmental protection requirements of the 
Act and regulatory program. Without this information OSM and state 
regulatory authorities could not approve permit applications for surface 
coal mines and related facilities. Persons intending to conduct such 
operations must respond to obtain a benefit. A Federal agency may not 
conduct or sponsor, and you are not required to respond to, a collection 
of information unless it displays a currently valid OMB control number.

[73 FR 75875, Dec. 12, 2008]



Sec. 780.11  Operation plan: General requirements.

    Each application shall contain a description of the mining 
operations proposed to be conducted during the life of the mine within 
the proposed permit area, including, at a minimum, the following:
    (a) A narrative description of the type and method of coal mining 
procedures and proposed engineering techniques, anticipated annual and 
total production of coal, by tonnage, and the major equipment to be used 
for all aspects of those operations; and
    (b) A narrative explaining the construction, modification, use, 
maintenance, and removal of the following facilities (unless retention 
of such facilities is necessary for postmining land use as specified in 
Sec. 816.133):
    (1) Dams, embankments, and other impoundments;
    (2) Overburden and topsoil handling and storage areas and 
structures;
    (3) Coal removal, handling, storage, cleaning, and transportation 
areas and structures;
    (4) Spoil, coal processing waste, and non-coal waste removal, 
handling, storage, transportation, and disposal areas and structures;
    (5) Mine facilities; and
    (6) Water and air pollution control facilities.

[44 FR 15357, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 780.12  Operation plan: Existing structures.

    (a) Each application shall contain a description of each existing 
structure proposed to be used in connection with or to facilitate the 
surface coal mining and reclamation operation. The description shall 
include--
    (1) Location;
    (2) Plans of the structure which describe its current condition;
    (3) Approximate dates on which construction of the existing 
structure was begun and completed; and
    (4) A showing, including relevant monitoring data or other evidence, 
whether the structure meets the performance standards of subchapter K 
(Permanent Program Standards) of this chapter or, if the structure does 
not meet the performance standards of subchapter K of this chapter, a 
showing whether the structure meets the performance standards of 
subchapter B (Interim Program Standards) of this chapter.

[[Page 230]]

    (b) Each application shall contain a compliance plan for each 
existing structure proposed to be modified or reconstructed for use in 
connection with or to facilitate the surface coal mining and reclamation 
operation. The compliance plan shall include--
    (1) Design specifications for the modification or reconstruction of 
the structure to meet the design and performance standards of subchapter 
K of this chapter;
    (2) A construction schedule which shows dates for beginning and 
completing interim steps and final reconstruction;
    (3) Provisions for monitoring the structure during and after 
modification or reconstruction to ensure that the performance standards 
of subchapter K of this chapter are met; and
    (4) A showing that the risk of harm to the environment or to public 
health or safety is not significant during the period of modification or 
reconstruction.



Sec. 780.13  Operation plan: Blasting.

    (a) Blasting plan. Each application shall contain a blasting plan 
for the proposed permit area, explaining how the applicant will comply 
with the requirements of Sec. Sec. 816.61 through 816.68 of this 
chapter. This plan shall include, at a minimum, information setting 
forth the limitations the operator will meet with regard to ground 
vibration and airblast, the bases for those limitations, and the methods 
to be applied in controlling the adverse effects of blasting operations.
    (b) Monitoring system. Each application shall contain a description 
of any system to be used to monitor compliance with the standards of 
Sec. 816.67 including the type, capability, and sensitivity of any 
blast-monitoring equipment and proposed procedures and locations of 
monitoring.
    (c) Blasting near underground mines. Blasting operations within 500 
feet of active underground mines require approval of the State and 
Federal regulatory authorities concerned with the health and safety of 
underground miners.

[48 FR 9806, Mar. 8, 1983]



Sec. 780.14  Operation plan: Maps and plans.

    Each application shall contain maps and plans as follows:
    (a) The maps and plans shall show the lands proposed to be affected 
throughout the operation and any change in a facility or feature to be 
caused by the proposed operations, if the facility or feature was shown 
under 30 CFR 779.24 through 779.25.
    (b) The following shall be shown for the proposed permit area:
    (1) Buildings, utility corridors and facilities to be used;
    (2) The area of land to be affected within the proposed permit area, 
according to the sequence of mining and reclamation;
    (3) Each area of land for which a performance bond or other 
equivalent guarantee will be posted under subchapter J of this chapter;
    (4) Each coal storage, cleaning and loading area;
    (5) Each topsoil, spoil, coal waste, and non-coal waste storage 
area;
    (6) Each water diversion, collection, conveyance, treatment, 
storage, and discharge facility to be used;
    (7) Each air pollution collection and control facility;
    (8) Each source of waste and each waste disposal facility relating 
to coal processing or pollution control;
    (9) Each facility to be used to protect and enhance fish and 
wildlife and related environmental values;
    (10) Each explosive storage and handling facility; and
    (11) Locations of each siltation structure, permanent water 
impoundment, refuse pile, and coal mine waste impoundment for which 
plans are required by Sec. 780.25 of this part, and the location of 
each fill for the disposal of excess spoil for which plans are required 
under Sec. 780.35 of this part.
    (c) Except as provided in Sec. Sec. 780.25(a)(2), 780.25(a)(3), 
780.35, 816.73(c), 816.74(c), and 816.81(c) of this chapter, cross-
sections, maps, and plans required under paragraphs (b)(4), (5), (6), 
(10), and (11) of this section must be prepared by, or under the 
direction of, and certified by a qualified registered professional 
engineer, a professional geologist, or, in any state

[[Page 231]]

that authorizes land surveyors to prepare and certify cross-sections, 
maps, and plans, a qualified, registered, professional land surveyor, 
with assistance from experts in related fields such as landscape 
architecture.

[44 FR 15357, Mar. 13, 1979; 44 FR 49685, Aug. 24, 1979, as amended at 
45 FR 51550, Aug. 4, 1980; 48 FR 14822, Apr. 5, 1983; 50 FR 16199, Apr. 
24, 1985; 56 FR 65635, Dec. 17, 1991; 73 FR 75875, Dec. 12, 2008]



Sec. 780.15  Air pollution control plan.

    (a) For all surface mining activities with projected production 
rates exceeding 1,000,000 tons of coal per year and located west of the 
100th meridian west longitude, the application shall contain an air 
pollution control plan which includes the following:
    (1) An air quality monitoring program to provide sufficient data to 
evaluate the effectiveness of the fugitive dust control practices 
proposed under paragraph (a)(2) of this section to comply with Federal 
and State air quality standards; and
    (2) A plan for fugitive dust control practices as required under 30 
CFR 816.95.
    (b) For all other surface mining activities the application shall 
contain an air pollution control plan which includes the following:
    (1) An air quality monitoring program, if required by the regulatory 
authority, to provide sufficient data to evaluate the effectiveness of 
the fugitive dust control practices under paragraph (b)(2) of this 
section to comply with applicable Federal and State air quality 
standards; and
    (2) A plan for fugitive dust control practices, as required under 30 
CFR 816.95.



Sec. 780.16  Fish and wildlife information.

    (a) Resource information. Each application shall include fish and 
wildlife resource information for the permit area and adjacent area.
    (1) The scope and level of detail for such information shall be 
determined by the regulatory authority in consultation with State and 
Federal agencies with responsibilities for fish and wildlife and shall 
be sufficient to design the protection and enhancement plan required 
under paragraph (b) of this section.
    (2) Site-specific resource information necessary to address the 
respective species or habitats shall be required when the permit area or 
adjacent area is likely to include:
    (i) Listed or proposed endangered or threatened species of plants or 
animals or their critical habitats listed by the Secretary under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or 
those species or habitats protected by similar State statutes;
    (ii) Habitats of unusually high value for fish and wildlife such as 
important streams, wetlands, riparian areas, cliffs supporting raptors, 
areas offering special shelter or protection, migration routes, or 
reproduction and wintering areas; or
    (iii) Other species or habitats identified through agency 
consultation as requiring special protection under State or Federal law.
    (b) Protection and enhancement plan. Each application shall include 
a description of how, to the extent possible using the best technology 
currently available, the operator will minimize disturbances and adverse 
impacts on fish and wildlife and related environmental values, including 
compliance with the Endangered Species Act, during the surface coal 
mining and reclamation operations and how enhancement of these resources 
will be achieved where practicable. This description shall--
    (1) Be consistent with the requirements of Sec. 816.97 of this 
chapter;
    (2) Apply, at a minimum, to species and habitats identified under 
paragraph (a) of this section; and
    (3) Include--
    (i) Protective measures that will be used during the active mining 
phase of operation. Such measures may include the establishment of 
buffer zones, the selective location and special design of haul roads 
and powerlines, and the monitoring of surface water quality and 
quantity; and
    (ii) Enhancement measures that will be used during the reclamation 
and postmining phase of operation to develop aquatic and terrestrial 
habitat. Such measures may include restoration

[[Page 232]]

of streams and other wetlands, retention of ponds and impoundments, 
establishment of vegetation for wildlife food and cover, and the 
replacement of perches and nest boxes. Where the plan does not include 
enhancement measures, a statement shall be given explaining why 
enhancement is not practicable.
    (c) Fish and Wildlife Service review. Upon request, the regulatory 
authority shall provide the resource information required under 
paragraph (a) of this section and the protection and enhancement plan 
required under paragraph (b) of this section to the U.S. Department of 
the Interior, Fish and Wildlife Service Regional or Field Office for 
their review. This information shall be provided within 10 days of 
receipt of the request from the Service.

[52 FR 47359, Dec. 11, 1987]



Sec. 780.18  Reclamation plan: General requirements.

    (a) Each application shall contain a plan for reclamation of the 
lands within the proposed permit area, showing how the applicant will 
comply with section 515 of the Act, subchapter K of this chapter, and 
the environmental protection performance standards of the regulatory 
program. The plan shall include, at a minimum, all information required 
under 30 CFR 780.18 through 780.37.
    (b) Each plan shall contain the following information for the 
proposed permit area--
    (1) A detailed timetable for the completion of each major step in 
the reclamation plan;
    (2) A detailed estimate of the cost of reclamation of the proposed 
operations required to be covered by a performance bond under subchapter 
J of this chapter, with supporting calculations for the estimates;
    (3) A plan for backfilling, soil stabilization, compacting, and 
grading, with contour maps or cross sections that show the anticipated 
final surface configuration of the proposed permit area, in accordance 
with 30 CFR 816.102 through 816.107;
    (4) A plan for removal, storage, and redistribution of topsoil, 
subsoil, and other material to meet the requirements of Sec. 816.22 of 
this chapter. A demonstration of the suitability of topsoil substitutes 
or supplements under Sec. 816.22(b) of this chapter shall be based upon 
analysis of the thickness of soil horizons, total depth, texture, 
percent coarse fragments, pH, and areal extent of the different kinds of 
soils. The regulatory authority may require other chemical and physical 
analyses, field-site trials, or greenhouse tests if determined to be 
necessary or desirable to demonstrate the suitability of the topsoil 
substitutes or supplements.
    (5) A plan for revegetation as required in 30 CFR 816.111 through 
816.116, including, but not limited to, descriptions of the--
    (i) Schedule of revegetation;
    (ii) Species and amounts per acre of seeds and seedlings to be used;
    (iii) Methods to be used in planting and seeding;
    (iv) Mulching techniques;
    (v) Irrigation, if appropriate, and pest and disease control 
measures, if any; and
    (vi) Measures proposed to be used to determine the success of 
revegetation as required in 30 CFR 816.116.
    (vii) A soil testing plan for evaluation of the results of topsoil 
handling and reclamation procedures related to revegetation.
    (6) A description of the measures to be used to maximize the use and 
conservation of the coal resource as required in 30 CFR 816.59;
    (7) A description of measures to be employed to ensure that all 
debris, acid-forming and toxic-forming materials, and materials 
constituting a fire hazard are disposed of in accordance with 30 CFR 
816.89 and 816.102 and a description of the contingency plans which have 
been developed to preclude sustained combustion of such materials;
    (8) A description, including appropriate cross sections and maps, of 
the measures to be used to seal or manage mine openings, and to plug, 
case, or manage exploration holes, other bore holes, wells, and other 
openings within the proposed permit area, in accordance with 30 CFR 
816.13 through 816.15; and
    (9) A description of steps to be taken to comply with the 
requirements of the Clean Air Act (42 U.S.C. 7401 et seq.),

[[Page 233]]

the Clean Water Act (33 U.S.C. 1251 et seq.), and other applicable air 
and water quality laws and regulations and health and safety standards.

[44 FR 15357, Mar. 13, 1979, as amended at 48 FR 22100, May 16, 1983; 48 
FR 44779, Sept. 30, 1983]



Sec. 780.21  Hydrologic information.

    (a) Sampling and analysis methodology. All water-quality analyses 
performed to meet the requirements of this section shall be conducted 
according to the methodology in the 15th edition of ``Standard Methods 
for the Examination of Water and Wastewater,'' which is incorporated by 
reference, or the methodology in 40 CFR parts 136 and 434. Water quality 
sampling performed to meet the requirements of this section shall be 
conducted according to either methodology listed above when feasible. 
``Standard Methods for the Examination of Water and Wastewater,'' is a 
joint publication of the American Public Health Association, the 
American Water Works Association, and the Water Pollution Control 
Federation and is available from the American Public Health Association, 
1015 15th Street, NW., Washington, DC 20036. This document is also 
available for inspection at the Office of the OSM Administrative Record, 
U.S. Department of the Interior, Room 5315, 1100 L Street, NW., 
Washington, DC; at the OSM Eastern Technical Service Center, U.S. 
Department of the Interior, Building 10, Parkway Center, Pittsburgh, 
Pa.; at the OSM Western Technical Service Center, U.S. Department of the 
Interior, Brooks Tower, 1020 15th Street, Denver, Colo or at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. This incorporation by reference was 
approved by the Director of the Federal Register on October 26, 1983. 
This document is incorporated as it exists on the date of the approval, 
and a notice of any change in it will be published in the Federal 
Register.
    (b) Baseline information. The application shall include the 
following baseline hydrologic information, and any additional 
information required by the regulatory authority.
    (1) Ground-water information. The location and ownership for the 
permit and adjacent areas of existing wells, springs, and other ground-
water resources, seasonal quality and quantity of ground water, and 
usage. Water quality descriptions shall include, at a minimum, total 
dissolved solids or specific conductance corrected to 25 [deg]C, pH, 
total iron, and total manganese. Ground-water quantity descriptions 
shall include, at a minimum, approximate rates of discharge or usage and 
depth to the water in the coal seam, and each water-bearing stratum 
above and potentially impacted stratum below the coal seam.
    (2) Surface-water information. The name, location, ownership, and 
description of all surface-water bodies such as streams, lakes, and 
impoundments, the location of any discharge into any surface-water body 
in the proposed permit and adjacent areas, and information on surface-
water quality and quantity sufficient to demonstrate seasonal variation 
and water usage. Water quality descriptions shall include, at a minimum, 
baseline information on total suspended solids, total dissolved solids 
or specific conductance corrected to 25 [deg]C, pH, total iron, and 
total manganese. Baseline acidity and alkalinity information shall be 
provided if there is a potential for acid drainage from the proposed 
mining operation. Water quantity descriptions shall include, at a 
minimum, baseline information on seasonal flow rates.
    (3) Supplemental information. If the determination of the probable 
hydrologic consequences (PHC) required by paragraph (f) of this section 
indicates that adverse impacts on or off the proposed permit area may 
occur to the hydrologic balance, or that acid-forming or toxic-forming 
material is present that may result in the contamination of ground-water 
or surface-water supplies, then information supplemental to that 
required under paragraphs (b) (1) and (2) of this section shall be 
provided to evaluate such probable hydrologic consequences and to plan 
remedial and reclamation activities. Such supplemental information may 
be based upon

[[Page 234]]

drilling, aquifer tests, hydrogeologic analysis of the water-bearing 
strata, flood flows, or analysis of other water quality or quantity 
characteristics.
    (c) Baseline cumulative impact area information. (1) Hydrologic and 
geologic information for the cumulative impact area necessary to assess 
the probable cumulative hydrologic impacts of the proposed operation and 
all anticipated mining on surface- and ground-water systems as required 
by paragraph (g) of this section shall be provided to the regulatory 
authority if available from appropriate Federal or State agencies.
    (2) If the information is not available from such agencies, then the 
applicant may gather and submit this information to the regulatory 
authority as part of the permit application.
    (3) The permit shall not be approved until the necessary hydrologic 
and geologic information is available to the regulatory authority.
    (d) Modeling. The use of modeling techniques, interpolation or 
statistical techniques may be included as part of the permit 
application, but actual surface- and ground-water information may be 
required by the regulatory authority for each site even when such 
techniques are used.
    (e) Alternative water source information. If the PHC determination 
required by paragraph (f) of this section indicates that the proposed 
mining operation may proximately result in contamination, diminution, or 
interruption of an underground or surface source of water within the 
proposed permit or adjacent areas which is used for domestic, 
agricultural, industrial or other legitimate purpose, then the 
application shall contain information on water availability and 
alternative water sources, including the suitability of alternative 
water sources for existing permining uses and approved postmining land 
uses.
    (f) Probable hydrologic consequences determination. (1) The 
application shall contain a determination of the probable hydrologic 
consequences (PHC) of the proposed operation upon the quality and 
quantity of surface and ground water under seasonal flow conditions for 
the proposed permit and adjacent areas.
    (2) The PHC determination shall be based on baseline hydrologic, 
geologic and other information collected for the permit application and 
may include data statistically representative of the site.
    (3) The PHC determination shall include findings on:
    (i) Whether adverse impacts may occur to the hydrologic balance;
    (ii) Whether acid-forming or toxic-forming materials are present 
that could result in the contamination of surface or ground water 
supplies;
    (iii) Whether the proposed operation may proximately result in 
contamination, diminution or interruption of an underground or surface 
source of water within the proposed permit or adjacent areas which is 
used for domestic, agricultural, industrial or other legitimate purpose; 
and
    (iv) What impact the proposed operation will have on:
    (A) Sediment yields from the disturbed area; (B) acidity, total 
suspended and dissolved solids, and other important water quality 
parameters of local impact; (C) flooding or streamflow alteration; (D) 
ground water and surface water availability; and (E) other 
characteristics as required by the regulatory authority.
    (4) An application for a permit revision shall be reviewed by the 
regulatory authority to determine whether a new or updated PHC 
determination shall be required.
    (g) Cumulative hydrologic impact assessment. (1) The regulatory 
authority shall provide an assessment of the probable cumulative 
hydrologic impacts (CHIA) of the proposed operation and all anticipated 
mining upon surface- and ground-water systems in the cumulative impact 
area. The CHIA shall be sufficient to determine, for purposes of permit 
approval, whether the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. The 
regulatory authority may allow the applicant to submit data and analyses 
relevant to the CHIA with the permit application.
    (2) An application for a permit revision shall be reviewed by the 
regulatory authority to determine whether

[[Page 235]]

a new or updated CHIA shall be required.
    (h) Hydrologic reclamation plan. The application shall include a 
plan, with maps and descriptions, indicating how the relevant 
requirements of part 816, including Sec. Sec. 816.41 to 816.43, will be 
met. The plan shall be specific to the local hydrologic conditions. It 
shall contain the steps to be taken during mining and reclamation 
through bond release to minimize disturbances to the hydrologic balance 
within the permit and adjacent areas; to prevent material damage outside 
the permit area; to meet applicable Federal and State water quality laws 
and regulations; and to protect the rights of present water users. The 
plan shall include the measures to be taken to: Avoid acid or toxic 
drainage; prevent, to the extent possible using the best technology 
currently available, additional contributions of suspended solids to 
streamflow; provide water-treatment facilities when needed; control 
drainage; restore approximate premining recharge capacity and protect or 
replace rights of present water users. The plan shall specifically 
address and potential adverse hydrologic consequences identified in the 
PHC determination prepared under paragraph (f) of this section and shall 
include preventive and remedial measures.
    (i) Ground-water monitoring plan. (1) The application shall include 
a ground-water monitoring plan based upon the PHC determination required 
under paragraph (f) of this section and the analysis of all baseline 
hydrologic, geologic and other information in the permit application. 
The plan shall provide for the monitoring of parameters that relate to 
the suitability of the ground water for current and approved postmining 
land uses and to the objectives for protection of the hydrologic balance 
set forth in paragraph (h) of this section. It shall identify the 
quantity and quality parameters to be monitored, sampling frequency, and 
site locations. It shall describe how the data may be used to determine 
the impacts of the operation upon the hydrologic balance. At a minimum, 
total dissolved solids or specific conductance corrected to 25 [deg]C, 
pH, total iron, total manganese, and water levels shall be monitored and 
data submitted to the regulatory authority at least every 3 months for 
each monitoring location. The regulatory authority may require 
additional monitoring.
    (2) If an applicant can demonstrate by the use of the PHC 
determination and other available information that a particular water-
bearing stratum in the proposed permit and adjacent areas is not one 
which serves as an aquifer which significantly ensures the hydrologic 
balance within the cumulative impact area, then monitoring of that 
stratum may be waived by the regulatory authority.
    (j) Surface-water monitoring plan. (1) The application shall include 
a surface-water monitoring plan based upon the PHC determination 
required under paragraph (f) of this section and the analysis of all 
baseline hydrologic, geologic, and other information in the permit 
application. The plan shall provide for the monitoring of parameters 
that relate to the suitability of the surface water for current and 
approved postmined land uses and to the objectives for protection of the 
hydrologic balance as set forth in paragraph (h) of this section as well 
as the effluent limitations found at 40 CFR part 434.
    (2) The plan shall identify the surface-water quantity and quality 
parameters to be monitored, sampling frequency and site locations. It 
shall describe how the data may be used to determine the impacts of the 
operation upon the hydrologic balance.
    (i) At all monitoring locations in the surface-water bodies such as 
streams, lakes, and impoundments, that are potentially impacted or into 
which water will be discharged and at upstream monitoring locations the 
total dissolved solids or specific conductance corrected to 25 [deg]C, 
total suspended solids, pH, total iron, total manganese, and flow shall 
be monitored.
    (ii) For point-source discharges, monitoring shall be conducted in 
accordance with 40 CFR parts 122, 123 and 434 and as required by the 
National Pollutant Discharge Elimination System permitting authority.
    (3) The monitoring reports shall be submitted to the regulatory 
authority

[[Page 236]]

every 3 months. The regulatory authority may require additional 
monitoring.

[48 FR 43985, Sept. 26, 1983, as amended at 53 FR 36400, Sept. 19, 1988]



Sec. 780.22  Geologic information.

    (a) General. Each application shall include geologic information in 
sufficient detail to assist in determining--
    (1) The probable hydrologic consequences of the operation upon the 
quality and quantity of surface and ground water in the permit and 
adjacent areas, including the extent to which surface- and ground-water 
monitoring is necessary;
    (2) All potentially acid- or toxic-forming strata down to and 
including the stratum immediately below the lowest coal seam to be 
mined; and
    (3) Whether reclamation as required by this chapter can be 
accomplished and whether the proposed operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area.
    (b) Geologic information shall include, at a minimum the following:
    (1) A description of the geology of the proposed permit and adjacent 
areas down to and including the deeper of either the stratum immediately 
below the lowest coal seam to be mined or any aquifer below the lowest 
coal seam to be mined which may be adversely impacted by mining. The 
description shall include the areal and structural geology of the permit 
and adjacent areas, and other parameters which influence the required 
reclamation and the occurrence, availability, movement, quantity, and 
quality of potentially impacted surface and ground waters. It shall be 
based on--
    (i) The cross sections, maps and plans required by Sec. 779.25 of 
this chapter;
    (ii) The information obtained under paragraphs (b)(2) and (c) of 
this section; and
    (iii) Geologic literature and practices.
    (2) Analyses of samples collected from test borings; drill cores; or 
fresh, unweathered, uncontaminated samples from rock outcrops from the 
permit area, down to and including the deeper of either the stratum 
immediately below the lowest coal seam to be mined or any aquifer below 
the lowest seam to be mined which may be adversely impacted by mining. 
The analyses shall result in the following:
    (i) Logs showing the lithologic characteristics including physical 
properties and thickness of each stratum and location of ground water 
where occurring;
    (ii) Chemical analyses identifying those strata that may contain 
acid- or toxic-forming or alkalinity-producing materials and to 
determine their content except that the regulatory authority may find 
that the analysis for alkalinity-producing materials is unnecessary; and
    (iii) Chemical analyses of the coal seam for acid- or toxic-forming 
materials, including the total sulfur and pyritic sulfur, except that 
the regulatory authority may find that the analysis of pyritic sulfur 
content is unnecessary.
    (c) If determined to be necessary to protect the hydrologic balance 
or to meet the performance standards of this chapter, the regulatory 
authority may require the collection, analysis, and description of 
geologic information in addition to that required by paragraph (b) of 
this section.
    (d) An applicant may request the regulatory authority to waive in 
whole or in part the requirements of paragraph (b)(2) of this section. 
The waiver may be granted only if the regulatory authority finds in 
writing that the collection and analysis of such data is unnecessary 
because other equivalent information is available to the regulatory 
authority in a satisfactory form.

[48 FR 43987, Sept. 26, 1983]



Sec. 780.23  Reclamation plan: Land use information.

    (a) The plan shall contain a statement of the condition, capability, 
and productivity of the land within the proposed permit area, including:
    (1) A map and supporting narrative of the uses of the land existing 
at the time of the filing of the application. If the premining use of 
the land was changed within 5 years before the anticipated date of 
beginning the proposed operations, the historic use of the land shall 
also be described. In the case of previously mined land, the use of the 
land prior to any mining shall

[[Page 237]]

also be described to the extent such information is available.
    (2) A narrative of land capability and productivity, which analyzes 
the land-use description under paragraph (a) of this section in 
conjunction with other environmental resources information. The 
narrative shall provide analyses of:
    (i) The capability of the land before any mining to support a 
variety of uses, giving consideration to soil and foundation 
characteristics, topography, vegetative cover, and the hydrology of the 
proposed permit area; and
    (ii) The productivity of the proposed permit area before mining, 
expressed as average yield of food, fiber, forage, or wood products from 
such lands obtained under high levels of management. The productivity 
shall be determined by yield data or estimates for similar sites based 
on current data from the U.S. Department of Agriculture, State 
agricultural universities, or appropriate State natural resource or 
agricultural agencies.
    (b) Each plan shall contain a detailed description of the proposed 
use, following reclamation, of the land within the proposed permit area, 
including a discussion of the utility and capacity of the reclaimed land 
to support a variety of alternative uses, and the relationship of the 
proposed use of existing land use policies and plans. This description 
shall explain:
    (1) How the proposed post mining land use is to be achieved and the 
necessary support activities which may be needed to achieve the proposed 
land use; and
    (2) Where a land use different from the premining land use is 
proposed, all materials needed for approval of the alternative use under 
30 CFR 816.133.
    (3) The consideration which has been given to making all of the 
proposed surface mining activities consistent with surface owner plans 
and applicable State and local land use plans and programs.
    (c) The description shall be accompanied by a copy of the comments 
concerning the proposed use by the legal or equitable owner of record of 
the surface of the proposed permit area and the State and local 
government agencies which would have to initiate, implement, approve, or 
authorize the proposed use of the land following reclamation.

[59 FR 27937, May 27, 1994]



Sec. 780.25  Reclamation plan: Siltation structures, impoundments, and refuse 

piles.

    (a) General. Each application must include a general plan and a 
detailed design plan for each proposed siltation structure, impoundment, 
and refuse pile within the proposed permit area.
    (1) Each general plan must--(i) Be prepared by, or under the 
direction of, and certified by a qualified, registered, professional 
engineer, a professional geologist, or in any State which authorizes 
land surveyors to prepare and certify such plans, a qualified, 
registered, professional, land surveyor, with assistance from experts in 
related fields such as landscape architecture;
    (ii) Contain a description, map, and cross section of the structure 
and its location;
    (iii) Contain preliminary hydrologic and geologic information 
required to assess the hydrologic impact of the structure;
    (iv) Contain a survey describing the potential effect on the 
structure from subsidence of the subsurface strata resulting from past 
underground mining operations if underground mining has occurred; and
    (v) Contain a certification statement which includes a schedule 
setting forth the dates that any detailed design plans for structures 
that are not submitted with the general plan will be submitted to the 
regulatory authority. The regulatory authority shall have approved, in 
writing, the detailed design plan for a structure before construction of 
the structure begins.
    (2)(i) Impoundments meeting the criteria for Significant Hazard 
Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams 
and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005), 
published by the U.S. Department of Agriculture, Natural Resources 
Conservation Service, must comply with the requirements of this section 
for structures that meet the criteria in Sec. 77.216(a) of this title. 
Technical Release No. 60 (TR-60) is hereby incorporated by reference. 
The

[[Page 238]]

Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
review and download the incorporated document from the Natural Resources 
Conservation Service's Web site at http://www.info.usda.gov/scripts/
lpsiis.dll/TR/TR--210--60.htm. You may inspect and obtain a copy of this 
document which is on file at the Administrative Record Room, Office of 
Surface Mining Reclamation and Enforcement, 1951 Constitution Avenue, 
NW., Washington, DC 20240. For information on the availability of this 
document at OSM, call 202-208-2823. You also may inspect a copy of this 
document at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030 or go to http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html.
    (ii) Each detailed design plan for a structure that meets the 
criteria in Sec. 77.216(a) of this title must--
    (A) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (B) Include any geotechnical investigation, design, and construction 
requirements for the structure;
    (C) Describe the operation and maintenance requirements for each 
structure; and
    (D) Describe the timetable and plans to remove each structure, if 
appropriate.
    (b) Siltation structures. Siltation structures shall be designed in 
compliance with the requirements of Sec. 816.46 of this chapter.
    (c) Permanent and temporary impoundments. (1) Permanent and 
temporary impoundments shall be designed to comply with the requirements 
of Sec. 816.49 of this chapter.
    (2) Each plan for an impoundment meeting the criteria in Sec. 
77.216(a) of this title must comply with the requirements of Sec. 
77.216-2 of this title. The plan required to be submitted to the 
District Manager of MSHA under Sec. 77.216 of this title must be 
submitted to the regulatory authority as part of the permit application.
    (3) For impoundments not included in paragraph (a)(2) of this 
section, the regulatory authority may establish through the State 
program approval process, engineering design standards that ensure 
stability comparable to a 1.3 minimum static safety factor in lieu of 
engineering tests to establish compliance with the minimum static safety 
factor of 1.3 specified in Sec. 816.49(a)(4)(ii) of this chapter.
    (4) If the structure meets the Significant Hazard Class or High 
Hazard Class criteria for dams in TR-60 or meets the criteria of Sec. 
77.216(a) of this chapter, each plan must include a stability analysis 
of the structure. The stability analysis must include, but not be 
limited to, strength parameters, pore pressures, and long-term seepage 
conditions. The plan also must contain a description of each engineering 
design assumption and calculation with a discussion of each alternative 
considered in selecting the specific design parameters and construction 
methods.
    (d) Coal mine waste impoundments and refuse piles. If you, the 
permit applicant, propose to place coal mine waste in a refuse pile or 
impoundment, or if you plan to use coal mine waste to construct an 
impounding structure, you must comply with the applicable requirements 
in paragraphs (d)(1) through (d)(3) of this section.
    (1) Addressing impacts to perennial and intermittent streams and 
related environmental values. You must design the operation to avoid 
placement of coal mine waste in or within 100 feet of a perennial or 
intermittent stream to the extent possible. If avoidance is not 
possible, you must--
    (i) Explain, to the satisfaction of the regulatory authority, why an 
alternative coal mine waste disposal method or an alternative location 
or configuration that does not involve placement of coal mine waste in 
or within 100 feet of a perennial or intermittent stream is not 
reasonably possible.
    (ii) Identify a reasonable range of alternative locations or 
configurations for any proposed refuse piles or coal mine waste 
impoundments. This provision does not require identification of all 
potential alternatives. You need

[[Page 239]]

identify only those reasonably possible alternatives that are likely to 
differ significantly in terms of impacts on fish, wildlife, and related 
environmental values. An alternative is reasonably possible if it meets 
all the following criteria:
    (A) The alternative conforms to the safety, engineering, design, and 
construction requirements of the regulatory program.
    (B) The alternative is capable of being done after consideration of 
cost, logistics, and available technology. The fact that one alternative 
may cost somewhat more than a different alternative does not necessarily 
warrant exclusion of the more costly alternative from consideration. 
However, an alternative generally may be considered unreasonable if its 
cost is substantially greater than the costs normally associated with 
this type of project.
    (C) The alternative is consistent with the coal recovery provisions 
of Sec. 816.59 of this chapter.
    (iii) Analyze the impacts of the alternatives identified in 
paragraph (d)(1)(ii) of this section on fish, wildlife, and related 
environmental values. The analysis must consider impacts on both aquatic 
and terrestrial ecosystems.
    (A) For every alternative that proposes placement of coal mine waste 
in a perennial or intermittent stream, the analysis required under 
paragraph (d)(1)(iii) of this section must include an evaluation of 
impacts on the physical, chemical, and biological characteristics of the 
stream downstream of the proposed refuse pile or coal mine waste 
impoundment, including seasonal variations in temperature and volume, 
changes in stream turbidity or sedimentation, the degree to which the 
coal mine waste may introduce or increase contaminants, and the effects 
on aquatic organisms and the wildlife that is dependent upon the stream.
    (B) If you have prepared an analysis of alternatives for the 
proposed impoundment or refuse pile under 40 CFR 230.10 to meet Clean 
Water Act requirements, you may initially submit a copy of that analysis 
in lieu of the analysis required under paragraph (d)(1)(iii)(A) of this 
section. The regulatory authority will determine the extent to which 
that analysis satisfies the requirements of paragraph (d)(1)(iii)(A) of 
this section.
    (iv) Select the alternative with the least overall adverse impact on 
fish, wildlife, and related environmental values, including adverse 
impacts on water quality and aquatic and terrestrial ecosystems.
    (2) Design requirements for refuse piles. Refuse piles must be 
designed to comply with the requirements of Sec. Sec. 816.81 and 816.83 
of this chapter.
    (3) Design requirements for impoundments and impounding structures. 
Impounding structures constructed of or intended to impound coal mine 
waste must be designed to comply with the requirements of Sec. Sec. 
816.81 and 816.84 of this chapter, which incorporate the requirements of 
paragraphs (a) and (c) of Sec. 816.49 of this chapter. In addition,--
    (i) The plan for each structure that meets the criteria of Sec. 
77.216(a) of this title must comply with the requirements of Sec. 
77.216-2 of this title; and
    (ii) Each plan for a coal mine waste impoundment must contain the 
results of a geotechnical investigation to determine the structural 
competence of the foundation that will support the proposed impounding 
structure and the impounded material. An engineer or engineering 
geologist must plan and supervise the geotechnical investigation. In 
planning the investigation, the engineer or geologist must--
    (A) Determine the number, location, and depth of borings and test 
pits using current prudent engineering practice for the size of the 
impoundment and the impounding structure, the quantity of material to be 
impounded, and subsurface conditions.
    (B) Consider the character of the overburden and bedrock, the 
proposed abutment sites for the impounding structure, and any adverse 
geotechnical conditions that may affect the particular impoundment.
    (C) Identify all springs, seepage, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed impoundment.
    (D) Consider the possibility of mudflows, rock-debris falls, or 
other

[[Page 240]]

landslides into the impoundment or impounded material.

[44 FR 15357, Mar. 13, 1979, as amended at 48 FR 44780, Sept. 30, 1983; 
50 FR 16199, Apr. 24, 1985; 53 FR 43605, Oct. 27, 1988; 59 FR 53028, 
Oct. 20, 1994; 73 FR 75876, Dec. 12, 2008]



Sec. 780.27  Reclamation plan: Surface mining near underground mining.

    For surface mining activities within the proposed permit area to be 
conducted within 500 feet of an underground mine, the application shall 
describe the measures to be used to comply with 30 CFR 816.79.



Sec. 780.28  Activities in or adjacent to perennial or intermittent streams.

    (a) Applicability. (1) In general. Except as otherwise provided in 
paragraph (a)(2) of this section, this section applies to applications 
to conduct surface mining activities in perennial or intermittent 
streams or on the surface of lands within 100 feet, measured 
horizontally, of perennial or intermittent streams.
    (2) Exceptions. (i) Coal preparation plants not located within the 
permit area of a mine. This section does not apply to applications under 
Sec. 785.21 of this chapter for coal preparation plants that are not 
located within the permit area of a mine.
    (ii) Stream-channel diversions. Paragraphs (b) through (e) of this 
section do not apply to diversions of perennial or intermittent streams, 
which are governed by Sec. 780.29 of this part and Sec. 816.43 of this 
chapter.
    (b) Application requirements for surface mining activities in a 
perennial or intermittent stream. If you propose to conduct one or more 
of the activities listed in paragraphs (b)(2) through (b)(4) of Sec. 
816.57 of this chapter in a perennial or intermittent stream, your 
application must demonstrate that--
    (1) Avoiding disturbance of the stream is not reasonably possible; 
and
    (2) The proposed activities will comply with all applicable 
requirements in paragraphs (b) and (c) of Sec. 816.57 of this chapter.
    (c) Application requirements for surface mining activities within 
100 feet of a perennial or intermittent stream. If you propose to 
conduct surface mining activities within 100 feet of a perennial or 
intermittent stream, but not in the stream itself, and those activities 
would occur on land subject to the buffer requirement of Sec. 
816.57(a)(1) of this chapter, your application must--
    (1) Demonstrate that avoiding disturbance of land within 100 feet of 
the stream either is not reasonably possible or is not necessary to meet 
the fish and wildlife and hydrologic balance protection requirements of 
the regulatory program;
    (2) Identify any lesser buffer that you propose to implement instead 
of maintaining a 100-foot undisturbed buffer between surface mining 
activities and the perennial or intermittent stream; and
    (3) Explain how the lesser buffer, together with any other 
protective measures that you propose to implement, constitute the best 
technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible, as 
required by Sec. Sec. 780.21(h) and 816.41(d)(1) of this chapter; and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, as required by 
Sec. Sec. 780.16(b) and 816.97(a) of this chapter.
    (d) Approval requirements for activities in a perennial or 
intermittent stream. Before approving any surface mining activities in a 
perennial or intermittent stream, the regulatory authority must--
    (1) Find in writing that--
    (i) Avoiding disturbance of the stream is not reasonably possible; 
and
    (ii) The plans submitted with the application meet all applicable 
requirements in paragraphs (b) and (c) of Sec. 816.57 of this chapter.
    (2) Include a permit condition requiring a demonstration of 
compliance with the Clean Water Act in the manner specified in Sec. 
816.57(a)(2) of this chapter before the permittee may conduct any 
activities in a perennial or intermittent stream that require 
authorization or certification under the Clean Water Act.

[[Page 241]]

    (e) Approval requirements for activities within 100 feet of a 
perennial or intermittent stream. Before approving any surface mining 
activities that would disturb the surface of land subject to the buffer 
requirement of Sec. 816.57(a)(1) of this chapter, the regulatory 
authority must find in writing that--
    (1) Avoiding disturbance of the surface of land within 100 feet of 
the stream either is not reasonably possible or is not necessary to meet 
the fish and wildlife and hydrologic balance protection requirements of 
the regulatory program; and
    (2) The measures proposed under paragraphs (c)(2) and (c)(3) of this 
section constitute the best technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible, as 
required by Sec. Sec. 780.21(h) and 816.41(d)(1) of this chapter; and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, as required by 
Sec. Sec. 780.16(b) and 816.97(a) of this chapter.
    (f) Relationship to the Clean Water Act. (1) In all cases, your 
application must identify the authorizations and certifications that you 
anticipate will be needed under sections 401, 402, and 404 of the Clean 
Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps that 
you have taken or will take to procure those authorizations and 
certifications.
    (2) The regulatory authority will process your application and may 
issue the permit before you obtain all necessary authorizations and 
certifications under the Clean Water Act, 33 U.S.C. 1251 et seq., 
provided your application meets all applicable requirements of 
subchapter G of this chapter. However, issuance of a permit does not 
authorize you to initiate any activities for which Clean Water Act 
authorization or certification is required. Information submitted and 
analyses conducted under subchapter G of this chapter may inform the 
agency responsible for authorizations and certifications under sections 
401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 
1344, but they are not a substitute for the reviews, authorizations, and 
certifications required under those sections of the Clean Water Act.

[73 FR 75877, Dec 12, 2008]



Sec. 780.29  Diversions.

    Each application shall contain descriptions, including maps and 
cross sections, of stream channel diversions and other diversions to be 
constructed within the proposed permit area to achieve compliance with 
30 CFR 816.43 of this chapter.

[44 FR 15357, Mar. 13, 1979, as amended at 48 FR 43987, Sept. 26, 1983]



Sec. 780.31  Protection of publicly owned parks and historic places.

    (a) For any publicly owned parks or any places listed on the 
National Register of Historic Places that may be adversely affected by 
the proposed operation, each plan shall describe the measures to be 
used--
    (1) To prevent adverse impacts, or
    (2) If a person has valid existing rights, as determined under Sec. 
761.16 of this chapter, or if joint agency approval is to be obtained 
under Sec. 761.17(d) of this chapter, to minimize adverse impacts.
    (b) The regulatory authority may require the applicant to protect 
historic or archeological properties listed on or eligible for listing 
on the National Register of Historic Places through appropriate 
mitigation and treatment measures. Appropriate mitigation and treatment 
measures may be required to be taken after permit issuance provided that 
the required measures are completed before the properties are affected 
by any mining operation.

[52 FR 4262, Feb. 10, 1987; 64 FR 70838, Dec. 17, 1999]



Sec. 780.33  Relocation or use of public roads.

    Each application shall describe, with appropriate maps and cross-
sections, the measures to be used to ensure that the interests of the 
public and landowners affected are protected if, under Sec. 761.14 of 
this chapter, the applicant seeks to have the regulatory authority 
approve--
    (a) Conducting the proposed surface mining activities within 100 
feet of the

[[Page 242]]

right-of-way line of any public road, except where mine access or haul 
roads join that right-of-way; or
    (b) Relocating a public road.

[44 FR 15357, Mar. 13, 1979, as amended at 64 FR 70838, Dec. 17, 1999]



Sec. 780.35  Disposal of excess spoil.

    (a) If you, the permit applicant, propose to generate excess spoil 
as part of your operation, you must include the following items in your 
application--
    (1) Demonstration of minimization of excess spoil. A demonstration, 
prepared to the satisfaction of the regulatory authority, that the 
operation has been designed to minimize, to the extent possible, the 
volume of excess spoil that the operation will generate, thus ensuring 
that spoil is returned to the mined-out area to the extent possible, 
taking into consideration applicable regulations concerning restoration 
of the approximate original contour, safety, stability, and 
environmental protection and the needs of the proposed postmining land 
use.
    (2) Capacity demonstration. A demonstration, prepared to the 
satisfaction of the regulatory authority, that the designed maximum 
cumulative volume of all proposed excess spoil fills within the permit 
area is no larger than the capacity needed to accommodate the 
anticipated cumulative volume of excess spoil that the operation will 
generate, as approved by the regulatory authority under paragraph (a)(1) 
of this section.
    (3) Discussion of how you will address impacts to perennial and 
intermittent streams and related environmental values. You must design 
the operation to avoid placement of excess spoil in or within 100 feet 
of a perennial or intermittent stream to the extent possible. If 
avoidance is not possible, you must--
    (i) Explain, to the satisfaction of the regulatory authority, why an 
alternative that does not involve placement of excess spoil in or within 
100 feet of a perennial or intermittent stream is not reasonably 
possible.
    (ii) Identify a reasonable range of alternatives that vary with 
respect to the number, size, location, and configuration of proposed 
fills. This provision does not require identification of all potential 
alternatives. You need identify only those reasonably possible 
alternatives that are likely to differ significantly in terms of impacts 
on fish, wildlife, and related environmental values. An alternative is 
reasonably possible if it meets all the following criteria:
    (A) The alternative conforms to the safety, engineering, design, and 
construction requirements of the regulatory program;
    (B) The alternative is capable of being done after consideration of 
cost, logistics, and available technology. The fact that one alternative 
may cost somewhat more than a different alternative does not necessarily 
warrant exclusion of the more costly alternative from consideration. 
However, an alternative generally may be considered unreasonable if its 
cost is substantially greater than the costs normally associated with 
this type of project.
    (C) The alternative is consistent with the coal recovery provisions 
of Sec. 816.59 of this chapter.
    (iii) Analyze the impacts of the alternatives identified in 
paragraph (a)(3)(ii) of this section on fish, wildlife, and related 
environmental values. The analysis must consider impacts on both 
terrestrial and aquatic ecosystems.
    (A) For every alternative that proposes placement of excess spoil in 
a perennial or intermittent stream, the analysis must include an 
evaluation of impacts on the physical, chemical, and biological 
characteristics of the stream downstream of the proposed fill, including 
seasonal variations in temperature and volume, changes in stream 
turbidity or sedimentation, the degree to which the excess spoil may 
introduce or increase contaminants, and the effects on aquatic organisms 
and the wildlife that is dependent upon the stream.
    (B) If you have prepared an analysis of alternatives for the 
proposed fill under 40 CFR 230.10 to meet Clean Water Act requirements, 
you may initially submit a copy of that analysis with your application 
in lieu of the analysis required by paragraph (a)(3)(iii)(A) of this 
section. The regulatory authority will determine the extent to which 
that analysis satisfies the analytical requirements of paragraph 
(a)(3)(iii)(A) of this section.

[[Page 243]]

    (iv) Select the alternative with the least overall adverse impact on 
fish, wildlife, and related environmental values, including adverse 
impacts on water quality and aquatic and terrestrial ecosystems.
    (4) Location. Maps and cross-section drawings showing the location 
of all proposed disposal sites and structures. You must locate fills on 
the most moderately sloping and naturally stable areas available, unless 
the regulatory authority approves a different location based upon the 
alternatives analysis under paragraph (a)(3) of this section or on other 
requirements of the Act and this chapter. Whenever possible, you must 
place fills upon or above a natural terrace, bench, or berm if that 
location would provide additional stability and prevent mass movement.
    (5) Design plans. Detailed design plans for each structure, prepared 
in accordance with the requirements of this section and Sec. Sec. 
816.71 through 816.74 of this chapter. You must design the fill and 
appurtenant structures using current prudent engineering practices and 
any additional design criteria established by the regulatory authority.
    (6) Geotechnical investigation. The results of a geotechnical 
investigation of each proposed disposal site, with the exception of 
those sites at which spoil will be placed only on a pre-existing bench 
under Sec. 816.74 of this chapter. You must conduct sufficient 
foundation investigations, as well as any necessary laboratory testing 
of foundation material, to determine the design requirements for 
foundation stability for each site. The analyses of foundation 
conditions must take into consideration the effect of underground mine 
workings, if any, upon the stability of the fill and appurtenant 
structures. The information submitted must include--
    (i) The character of the bedrock and any adverse geologic conditions 
in the proposed disposal area.
    (ii) A survey identifying all springs, seepage, and groundwater flow 
observed or anticipated during wet periods in the area of the proposed 
disposal site.
    (iii) A survey of the potential effects of subsidence of subsurface 
strata as a result of past and future mining operations.
    (iv) A technical description of the rock materials to be utilized in 
the construction of disposal structures containing rock chimney cores or 
underlain by a rock drainage blanket.
    (v) A stability analysis including, but not limited to, strength 
parameters, pore pressures, and long-term seepage conditions. This 
analysis must be accompanied by a description of all engineering design 
assumptions and calculations and the alternatives considered in 
selecting the design specifications and methods.
    (7) Operation and reclamation plans. Plans for the construction, 
operation, maintenance, and reclamation of all excess spoil disposal 
structures in accordance with the requirements of Sec. Sec. 816.71 
through 816.74 of this chapter.
    (8) Additional requirements for keyway cuts or rock-toe buttresses. 
If keyway cuts or rock-toe buttresses are required under Sec. 816.71(d) 
of this chapter, the number, location, and depth of borings or test 
pits, which must be determined according to the size of the spoil 
disposal structure and subsurface conditions. You also must provide the 
engineering specifications used to design the keyway cuts or rock-toe 
buttresses. Those specifications must be based upon the stability 
analysis required under paragraph (a)(7)(v) of this section.
    (b) Design certification. A qualified registered professional 
engineer experienced in the design of earth and rock fills must certify 
that the design of all fills and appurtenant structures meets the 
requirements of this section.

[73 FR 75878, Dec. 12, 2008]



Sec. 780.37  Road systems.

    (a) Plans and drawings. Each applicant for a surface coal mining and 
reclamation permit shall submit plans and drawings for each road, as 
defined in Sec. 701.5 of this chapter, to be constructed, used, or 
maintained within the proposed permit area. The plans and drawings 
shall--
    (1) Include a map, appropriate cross sections, design drawings and 
specifications for road widths, gradients, surfacing materials, cuts, 
fill embankments, culverts, bridges, drainage

[[Page 244]]

ditches, low-water crossings, and drainage structures;
    (2) Contain the drawings and specifications of each proposed road 
that is located in the channel of an intermittent or perennial stream, 
as necessary for approval of the road by the regulatory authority in 
accordance with Sec. 816.150(d)(1) of this chapter;
    (3) Contain the drawings and specifications for each proposed ford 
of perennial or intermittent streams that is used as a temporary route, 
as necessary for approval of the ford by the regulatory authority in 
accordance with Sec. 816.151(c)(2) of this chapter;
    (4) Contain a description of measures to be taken to obtain approval 
of the regulatory authority for alteration or relocation of a natural 
stream channel under Sec. 816.151(d)(5) of this chapter;
    (5) Contain the drawings and specifications for each low-water 
crossing of perennial or intermittent stream channels so that the 
regulatory authority can maximize the protection of the stream in 
accordance with Sec. 816.151(d)(6) of this chapter; and
    (6) Describe the plans to remove and reclaim each road that would 
not be retained under an approved postmining land use, and the schedule 
for this removal and reclamation.
    (b) Primary road certification. The plans and drawings for each 
primary road shall be prepared by, or under the direction of, and 
certified by a qualified registered professional engineer, or in any 
State which authorizes land surveyors to certify the design of primary 
roads a qualified registered professional land surveyor, with experience 
in the design and construction of roads, as meeting the requirements of 
this chapter; current, prudent engineering practices; and any design 
criteria established by the regulatory authority.
    (c) Standard design plans. The regulatory authority may establish 
engineering design standards for primary roads through the State program 
approval process, in lieu of engineering tests, to establish compliance 
with the minimum static safety factor of 1.3 for all embankments 
specified in Sec. 816.151(b) of this chapter.

[53 FR 45211, Nov. 8, 1988]



Sec. 780.38  Support facilities.

    Each applicant for a surface coal mining and reclamation permit 
shall submit a description, plans, and drawings for each support 
facility to be constructed, used, or maintained within the proposed 
permit area. The plans and drawings shall include a map, appropriate 
cross sections, design drawings, and specifications sufficient to 
demonstrate compliance with Sec. 816.181 of this chapter for each 
facility.

[53 FR 45211, Nov. 8, 1988]



PART 783_UNDERGROUND MINING PERMIT APPLICATIONS_MINIMUM REQUIREMENTS FOR 

INFORMATION ON ENVIRONMENTAL RESOURCES--Table of Contents



Sec.
783.1 Scope.
783.2 Objectives.
783.4 Responsibilities.
783.10 Information collection.
783.11 General requirements.
783.12 General environmental resources information.
783.18 Climatological information.
783.19 Vegetation information.
783.20 [Reserved]
783.21 Soil resources information.
783.24 Maps: General requirements.
783.25 Cross sections, maps, and plans.

    Authority: 30 U.S.C. 1201 et seq.; sec. 115 of Pub. L. 98-146, (30 
U.S.C. 1257), and 16 U.S.C. 470 et seq.

    Source: 44 FR 15363, Mar. 13, 1979, unless otherwise noted.



Sec. 783.1  Scope.

    This part establishes the minimum requirements for the Secretary's 
approval of regulatory program provisions for the environmental 
resources contents of applications for permits for underground mining 
activities.



Sec. 783.2  Objectives.

    The objectives of this part are to ensure that each application 
provides to the regulatory authority a complete and accurate description 
of the environmental resources that may be impacted or affected by 
proposed underground mining activities.

[[Page 245]]



Sec. 783.4  Responsibilities.

    (a) It is the responsibility of the applicant to provide, except 
where specifically exempted in this part, all information required by 
this part in the application.
    (b) It is the responsibility of State and Federal Government 
agencies to provide information for applications as specifically 
required by this part.



Sec. 783.10  Information collection.

    The information collection requirements contained in 30 CFR 783.11, 
783.12, 783.13, 783.14, 783.15, 783.16, 783.17, 783.18, 783.19, 783.21, 
783.22, 783.23, 783.24 and 783.25 have been approved by the Office of 
Management and Budget under 44 U.S.C. 3507 and assigned clearance number 
1029-0038. The information is being collected to meet the requirements 
of sections 507 and 508 of Pub. L. 95-87, which require the permit 
applicant to present an adequate description of the existing pre-mining 
environmental resources within and around the proposed mine plan area. 
This information will be used by the regulatory authority to determine 
whether the applicant can comply with the performance standards for 
underground mining. The obligation to respond is mandatory.

[47 FR 33686, Aug. 4, 1982, as amended at 52 FR 47359, Dec. 11, 1987]



Sec. 783.11  General requirements.

    Each permit application shall include a description of the existing, 
premining environmental resources within the proposed permit area and 
adjacent areas that may be affected or impacted by the proposed 
underground mining activities.

[44 FR 15363, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 783.12  General environmental resources information.

    Each application shall describe and identify--
    (a) The lands subject to surface coal mining operations over the 
estimated life of those operations and the size, sequence, and timing of 
the subareas for which it is anticipated that individual permits for 
mining will be sought; and
    (b) The nature of cultural historic and archeological resources 
listed or eligible for listing on the National Register of Historic 
Places and known archeological sites within the proposed permit and 
adjacent areas.
    (1) The description shall be based on all available information, 
including, but not limited to, information from the State Historic 
Preservation Officer and local archeological, historical, and cultural 
preservation groups.
    (2) The regulatory authority may require the applicant to identify 
and evaluate important historic and archeological resources that may be 
eligible for listing on the National Register of Historic Places, 
through the--
    (i) Collection of additional information,
    (ii) Conduct of field investigations, or
    (iii) Other appropriate analyses.

[44 FR 15363, Mar. 13, 1979, as amended at 48 FR 14822, Apr. 5, 1983; 52 
FR 4262, Feb. 10, 1987]



Sec. 783.18  Climatological information.

    (a) When requested by the regulatory authority, the application 
shall contain a statement of the climatological factors that are 
representative of the proposed permit area, including--
    (1) The average seasonal precipitation;
    (2) The average direction and velocity of prevailing winds; and
    (3) Seasonal temperature ranges.
    (b) The regulatory authority may request such additional data as 
deemed necessary to ensure compliance with the requirements of this 
subchapter.

[44 FR 15363, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 783.19  Vegetation information.

    (a) The permit application shall, if required by the regulatory 
authority, contain a map that delineates existing vegetative types and a 
description of the plant communities within the area affected by surface 
operations and facilities and within any proposed reference area. This 
description shall include information adequate to predict the potential 
for reestablishing vegetation.
    (b) When a map or aerial photograph is required, sufficient adjacent 
areas shall be included to allow evaluation of

[[Page 246]]

vegetation as important habitat for fish and wildlife for those species 
of fish and wildlife identified under 30 CFR 784.21.

[44 FR 15363, Mar. 13, 1979, as amended at 52 FR 47359, Dec. 11, 1987]



Sec. 783.20  [Reserved]



Sec. 783.21  Soil resources information.

    (a) The applicant shall provide adequate soil survey information on 
those portions of the permit area to be affected by surface operations 
or facilities consisting of the following:
    (1) A map delineating different soils;
    (2) Soil identification;
    (3) Soil description; and
    (4) Present and potential productivity of existing soils.
    (b) Where the applicant proposes to use selected overburden 
materials as a supplement or substitute for topsoil, the application 
shall provide results of the analyses, trials and tests required under 
30 CFR 817.22.

    Editorial Note: For a document suspending Sec. 783.21 in part, see 
45 FR 51548, Aug. 4, 1980.



Sec. 783.24  Maps: General requirements.

    The permit application shall include maps showing:
    (a) All boundaries of lands and names of present owners of record of 
those lands, both surface and sub-surface, included in or contiguous to 
the permit area;
    (b) The boundaries of land within the proposed permit area upon 
which the applicant has the legal right to enter and begin underground 
mining activities;
    (c) The boundaries of all areas proposed to be affected over the 
estimated total life of the underground mining activities, with a 
description of size, sequence and timing of the mining of sub-areas for 
which it is anticipated that additional permits will be sought;
    (d) The location of all buildings in and within 1000 feet of the 
proposed permit area, with identification of the current use of the 
buildings;
    (e) The location of surface and sub-surface man-made features 
within, passing through, or passing over the proposed permit area, 
including, but not limited to, major electric transmission lines, 
pipelines, and agricultural drainage tile fields;
    (f) The location and boundaries of any proposed reference areas for 
determining the success of revegetation;
    (g) The locations of water supply intakes for current users of 
surface waters flowing into, out of, and within a hydrologic area 
defined by the regulatory authority, and those surface waters which will 
receive discharges from affected areas in the proposed permit area;
    (h) Each public road located in or within 100 feet of the proposed 
permit area;
    (i) The boundaries of any public park and locations of any cultural 
or historical resources listed or eligible for listing in the National 
Register of Historic Places and known archeological sites within the 
permit and adjacent areas.
    (j) Each cemetery that is located in or within 100 feet of the 
proposed permit area.
    (k) Any land within the proposed permit area which is within the 
boundaries of any units of the National System of Trails or the Wild and 
Scenic Rivers System, including study rivers designated under section 
5(a) of the Wild and Scenic Rivers Act; and
    (l) Other relevant information required by the regulatory authority.

[44 FR 15363, Mar. 13, 1979; 44 FR 49685, Aug. 24, 1979, as amended at 
45 FR 51550, Aug. 4, 1980; 48 FR 14822, Apr. 5, 1983; 52 FR 4263, Feb. 
10, 1987]



Sec. 783.25  Cross sections, maps, and plans.

    (a) The application shall include cross sections, maps, and plans 
showing--
    (1) Elevations and locations of test borings and core samplings;
    (2) Elevations and locations of monitoring stations used to gather 
data on water quality and quantity, fish and wildlife, and air quality, 
if required, in preparation of the application.
    (3) Nature, depth, and thickness of the coal seams to be mined, any 
coal or rider seams above the seam to be mined, each stratum of the 
overburden, and the stratum immediately below the lowest coal seam to be 
mined;

[[Page 247]]

    (4) All coal crop lines and the strike and dip of the coal to be 
mined within the proposed permit area;
    (5) Location and extent of known workings of active, inactive, or 
abandoned underground mines, including mine openings to the surface 
within the proposed permit and adjacent areas;
    (6) Location and extent of sub-surface water, if encountered, within 
the proposed permit or adjacent areas, including, but not limited to 
areal and vertical distribution of aquifers, and portrayal of seasonal 
differences of head in different aquifers on cross-sections and contour 
maps;
    (7) Location of surface water bodies such as streams, lakes, ponds, 
springs, constructed or natural drains, and irrigation ditches within 
the proposed permit and adjacent areas;
    (8) Location and extent of existing or previously surface-mined 
areas within the proposed permit area;
    (9) Location and dimensions of existing areas of spoil, waste, coal 
development waste, and non-coal waste disposal, dams, embankments, other 
impoundments, and water treatment and air pollution control facilities 
within the proposed permit area;
    (10) Location, and depth if available, of gas and oil wells within 
the proposed permit area and water wells in the permit area and adjacent 
areas;
    (b) Cross-sections, maps and plans included in a permit application 
as required by this section shall be prepared by, or under the direction 
of, and certified by a qualified, registered, professional engineer, a 
professional geologist, or in any State which authorizes land surveyors 
to prepare and certify such cross sections, maps and plans, a qualified, 
registered, professional, land surveyor, with assistance from experts in 
related fields such as landscape architecture, and shall be updated as 
required by the regulatory authority.

[44 FR 15363, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980; 50 
FR 16199, Apr. 24, 1985; 59 FR 27937, May 27, 1994]

    Editorial Note: For a document suspending Sec. 783.25(a)(3), (a)(8) 
and (a)(9) (previously Sec. 783.25(c), (h), and (i)), see 45 FR 51548, 
Aug. 4, 1980.



PART 784_UNDERGROUND MINING PERMIT APPLICATIONS_MINIMUM REQUIREMENTS FOR 

RECLAMATION AND OPERATION PLAN--Table of Contents



Sec.
784.1 Scope.
784.2 Objectives.
784.4 Responsibilities.
784.10 Information collection.
784.11 Operation plan: General requirements.
784.12 Operation plan: Existing structures.
784.13 Reclamation plan: General requirements.
784.14 Hydrologic information.
784.15 Reclamation plan: Land use information.
784.16 Reclamation plan: Siltation structures, impoundments, and refuse 
          piles.
784.17 Protection of publicly owned parks and historic places.
784.18 Relocation or use of public roads.
784.19 Disposal of excess spoil.
784.20 Subsidence control plan.
784.21 Fish and wildlife information.
784.22 Geologic information.
784.23 Operation plan: Maps and plans.
784.24 Road systems.
784.25 Return of coal processing waste to abandoned underground 
          workings.
784.26 Air pollution control plan.
784.28 Surface activities in or adjacent to perennial or intermittent 
          streams.
784.29 Diversions.
784.30 Support facilities.
784.200 Interpretive rules related to General Performance Standards.

    Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.

    Source: 44 FR 15366, Mar. 13, 1979, unless otherwise noted.



Sec. 784.1  Scope.

    This part provides the minimum requirements for the Secretary's 
approval of regulatory program provisions for the mining operations and 
reclamation plans portions of applications for permits for underground 
mining activities, except to the extent that different requirements for 
those plans are established under 30 CFR part 785.



Sec. 784.2  Objectives.

    The objectives of this part are to ensure that the regulatory 
authority is provided with comprehensive and reliable information on 
proposed underground mining activities, and to ensure that those 
activities are allowed to be

[[Page 248]]

conducted only in compliance with the Act, this chapter, and the 
regulatory program.



Sec. 784.4  Responsibilities.

    (a) It is the responsibility of the applicant to provide to the 
regulatory authority all of the information required by this part, 
except where specifically exempted in this part.
    (b) It is the responsibility of State and Federal governmental 
agencies to provide information to the regulatory authority where 
specifically required in this part.



Sec. 784.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
this part and assigned clearance number 1029-0039. Collection of this 
information is required under section 516(d) of SMCRA, which in effect 
requires applicants for permits for underground coal mines to prepare 
and submit an operation and reclamation plan for coal mining activities 
as part of the application. The regulatory authority uses this 
information to determine whether the plan will achieve the reclamation 
and environmental protection requirements of the Act and regulatory 
program. Without this information, OSM and state regulatory authorities 
could not approve permit applications for underground coal mines and 
related facilities. Persons intending to conduct such operations must 
respond to obtain a benefit. A Federal agency may not conduct or 
sponsor, and you are not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

[73 FR 75879, Dec. 12, 2008]



Sec. 784.11  Operation plan: General requirements.

    Each application shall contain a description of the mining 
operations proposed to be conducted during the life of the mine within 
the proposed permit area, including, at a minimum, the following:
    (a) A narrative description of the type and method of coal mining 
procedures and proposed engineering techniques, anticipated annual and 
total production of coal, by tonnage, and the major equipment to be used 
for all aspects of those operations; and
    (b) A narrative explaining the construction, modification, use, 
maintenance, and removal of the following facilities (unless retention 
of such facility is necessary for postmining land use as specified in 
Sec. 817.133):
    (1) Dams, embankments, and other impoundments;
    (2) Overburden and topsoil handling and storage areas and 
structures;
    (3) Coal removal, handling, storage, cleaning, and transportation 
areas and structures;
    (4) Spoil, coal processing waste, mine development waste, and non-
coal waste removal, handling, storage, transportation, and disposal 
areas and structures;
    (5) Mine facilities; and
    (6) Water pollution control facilities.

[44 FR 15366, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980]



Sec. 784.12  Operation plan: Existing structures.

    (a) Each application shall contain a description of each existing 
structure proposed to be used in connection with or to facilitate the 
surface coal mining and reclamation operation. The description shall 
include:
    (1) Location;
    (2) Plans of the structure which describe its current condition;
    (3) Approximate dates on which construction of the existing 
structure was begun and completed; and
    (4) A showing, including relevant monitoring data or other evidence, 
whether the structure meets the performance standards of subchapter K 
(Permanent Program Standards) of this chapter or, if the structure does 
not meet the performance standards of subchapter K of this chapter, a 
showing whether the structure meets the performance standards of 
subchapter B (Interim Program Standards) of this chapter.
    (b) Each application shall contain a compliance plan for each 
existing structure proposed to be modified or reconstructed for use in 
connection with or to facilitate the surface coal mining and reclamation 
operation. The compliance plan shall include--

[[Page 249]]

    (1) Design specifications for the modification or reconstruction of 
the structure to meet the design and performance standards of subchapter 
K of this chapter;
    (2) A construction schedule which shows dates for beginning and 
completing interim steps and final reconstruction;
    (3) Provisions for monitoring the structure during and after 
modification or reconstruction to ensure that the performance standards 
of subchapter K of this chapter are met; and
    (4) A showing that the risk of harm to the environment or to public 
health or safety is not significant during the period of modification or 
reconstruction.



Sec. 784.13  Reclamation plan: General requirements.

    (a) Each application shall contain a plan for the reclamation of the 
lands within the proposed permit area, showing how the applicant will 
comply with sections 515 and 516 of the Act, subchapter K of this 
chapter, and the environmental protection performance standards of the 
regulatory program. The plan shall include, at a minimum, all 
information required under 30 CFR 784.13 through 784.26.
    (b) Each plan shall contain the following information for the 
proposed permit area;
    (1) A detailed timetable for the completion of each major step in 
the reclamation plan;
    (2) A detailed estimate of the cost of the reclamation of the 
proposed operations required to be covered by a performance bond under 
subchapter J of this chapter, with supporting calculations for the 
estimates;
    (3) A plan for backfilling, soil stabilization, compacting and 
grading, with contour maps or cross sections that show the anticipated 
final surface configuration of the proposed permit area, in accordance 
with 30 CFR 817.102 through 817.107;
    (4) A plan for removal, storage, and redistribution of topsoil, 
subsoil, and other material to meet the requirements of Sec. 817.22 of 
this chapter. A demonstration of the suitability of topsoil substitutes 
or supplements under Sec. 817.22(b) of this chapter shall be based upon 
analysis of the thickness of soil horizons, total depth, texture, 
percent coarse fragments, pH, and areal extent of the different kinds of 
soils. The regulatory authority may require other chemical and physical 
analyses, field-site trials, or greenhouse tests if determined to be 
necessary or desirable to demonstrate the suitability of the topsoil 
substitutes or supplements.
    (5) A plan for revegetation as required in 30 CFR 817.111 through 
817.116, including, but not limited to, descriptions of the--
    (i) Schedule of revegetation;
    (ii) Species and amounts per acre of seeds and seedlings to be used;
    (iii) Methods to be used in planting and seeding;
    (iv) Mulching techniques;
    (v) Irrigation, if appropriate, and pest and disease control 
measures, if any;
    (vi) Measures proposed to be used to determine the success of 
revegetation as required in 30 CFR 817.116; and,
    (vii) A soil testing plan for evaluation of the results of topsoil 
handling and reclamation procedures related to revegetation.
    (6) A description of the measures to be used to maximize the use and 
conservation of the coal resource as required in 30 CFR 817.59;
    (7) A description of measures to be employed to ensure that all 
debris, acid-forming and toxic-forming materials, and materials 
constituting a fire hazard are disposed of in accordance with 30 CFR 
817.89 and 817.102 and a description of the contingency plans which have 
been developed to preclude sustained combustion of such materials;
    (8) A description, including appropriate cross sections and maps, of 
the measures to be used to seal or manage mine openings, and to plug, 
case or manage exploration holes, other bore holes, wells and other 
openings within the proposed permit area, in accordance with 30 CFR 
817.13-817.15; and
    (9) A description of steps to be taken to comply with the 
requirements of the Clean Air Act (42 U.S.C. 7401 et seq.), the Clean 
Water Act (33 U.S.C. 1251 et seq.), and other applicable air and

[[Page 250]]

water quality laws and regulations and health and safety standards.

[44 FR 15366, Mar. 13, 1979; 44 FR 49686, Aug. 24, 1979, as amended at 
48 FR 22100, May 16, 1983; 48 FR 44780, Sept. 30, 1983]



Sec. 784.14  Hydrologic information.

    (a) Sampling and analysis. All water quality analyses performed to 
meet the requirements of this section shall be conducted according to 
the methodology in the 15th edition of ``Standard Methods for the 
Examination of Water and Wastewater,'' which is incorporated by 
reference, or the methodology in 40 CFR parts 136 and 434. Water quality 
sampling performed to meet the requirements of this section shall be 
conducted according to either methodology listed above when feasible. 
``Standard Methods for the Examination of Water and Wastewater,'' is a 
joint publication of the American Public Health Association, the 
American Water Works Association, and the Water Pollution Control 
Federation and is available from the American Public Health Association, 
1015 Fifteenth Street, NW., Washington, DC 20036. This document is also 
available for inspection at the Office of the OSM Administrative Record, 
U.S. Department of the Interior, Room 5315, 1100 L Street, NW., 
Washington, DC; at the OSM Eastern Technical Service Center, U.S. 
Department of the Interior, Building 10, Parkway Center, Pittsburgh, 
Pa.; at the OSM Western Technical Service Center, U.S. Department of the 
Interior, Brooks Tower, 1020 15th Street, Denver, Colo or at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. This incorporation by reference was 
approved by the Director of the Federal Register on October 26, 1983. 
This document is incorporated as it exists on the date of the approval, 
and a notice of any change in it will be published in the Federal 
Register.
    (b) Baseline information. The application shall include the 
following baseline hydrologic information, and any additional 
information required by the regulatory authority.
    (1) Ground-water information. The location and ownership for the 
permit and adjacent areas of existing wells, springs, and other ground-
water resources, seasonal quality and quantity of ground water, and 
usage. Water quality descriptions shall include, at a minimum, total 
dissolved solids or specific conductance corrected to 25 [deg]C, pH, 
total iron, and total manganese. Ground-water quantity descriptions 
shall include, at a minimum, approximate rates of discharge or usage and 
depth to the water in the coal seam, and each water-bearing stratum 
above and potentially impacted stratum below the coal seam.
    (2) Surface-water information. The name, location, ownership and 
description of all surface-water bodies such as streams, lakes, and 
impoundments, the location of any discharge into any surface-water body 
in the proposed permit and adjacent areas, and information on surface-
water quality and quantity sufficient to demonstrate seasonal variation 
and water usage. Water quality descriptions shall include, at a minimum, 
baseline information on total suspended solids, total dissolved solids 
or specific conductance corrected to 25 [deg]C, pH, total iron, and 
total manganese. Baseline acidity and alkalinity information shall be 
provided if there is a potential for acid drainage from the proposed 
mining operation. Water quantity descriptions shall include, at a 
minimum, baseline information on seasonal flow rates.
    (3) Supplemental information. If the determination of the probable 
hydrologic consequences (PHC) required by paragraph (e) of this section 
indicates that adverse impacts on or off the proposed permit area may 
occur to the hydrologic balance, or that acid-forming or toxic-forming 
material is present that may result in the contamination of ground-water 
or surface-water supplies, then information supplemental to that 
required under paragraphs (b) (1) and (2) of this section shall be 
provided to evaluate such probable hydrologic consequences and to plan 
remedial and reclamation activities. Such supplemental information may 
be based upon drilling, aquifer tests, hydrogeologic

[[Page 251]]

analysis of the water-bearing strata, flood flows, or analysis of other 
water quality or quantity characteristics.
    (c) Baseline cumulative impact area information. (1) Hydrologic and 
geologic information for the cumulative impact area necessary to assess 
the probable cumulative hydrologic impacts of the proposed operation and 
all anticipated mining on surface- and ground-water systems as required 
by paragraph (f) of this section shall be provided to the regulatory 
authority if available from appropriate Federal or State agencies.
    (2) If this information is not available from such agencies, then 
the applicant may gather and submit this information to the regulatory 
authority as part of the permit application.
    (3) The permit shall not be approved until the necessary hydrologic 
and geologic information is available to the regulatory authority.
    (d) Modeling. The use of modeling techniques, interpolation or 
statistical techniques may be included as part of the permit 
application, but actual surface- and ground-water information may be 
required by the regulatory authority for each site even when such 
techniques are used.
    (e) Probable hydrologic consequences determination. (1) The 
application shall contain a determination of the probable hydrologic 
consequences (PHC) of the proposed operation upon the quality and 
quantity of surface and ground water under seasonal flow conditions for 
the proposed permit and adjacent areas.
    (2) The PHC determination shall be based on baseline hydrologic, 
geologic, and other information collected for the permit application and 
may include data statistically representative of the site.
    (3) The PHC determination shall include findings on:
    (i) Whether adverse impacts may occur to the hydrologic balance;
    (ii) Whether acid-forming or toxic-forming materials are present 
that could result in the contamination of surface or ground water 
supplies;
    (iii) What impact the proposed operation will have on:
    (A) Sediment yield from the disturbed area; (B) acidity, total 
suspended and dissolved solids, and other important water quality 
parameters of local impact; (C) flooding or streamflow alteration; (D) 
ground water and surface water availability; and (E) other 
characteristics as required by the regulatory authority;
    (iv) Whether the underground mining activities conducted after 
October 24, 1992 may result in contamination, diminution or interruption 
of a well or spring in existence at the time the permit application is 
submitted and used for domestic, drinking, or residential purposes 
within the permit or adjacent areas.
    (4) An application for a permit revision shall be reviewed by the 
regulatory authority to determine whether a new or updated PHC shall be 
required.
    (f) Cumulative hydrologic impact assessment. (1) The regulatory 
authority shall provide an assessment of the probable cumulative 
hydrologic impacts (CHIA) of the proposed operation and all anticipated 
mining upon surface- and ground-water systems in the cumulative impact 
area. The CHIA shall be sufficient to determine, for purposes of permit 
approval, whether the proposed operation has been designed to prevent 
material damage to the hydrologic balance outside the permit area. The 
regulatory authority may allow the applicant to submit data and analyses 
relevant to the CHIA with the permit application.
    (2) An application for a permit revision shall be reviewed by the 
regulatory authority to determine whether a new or updated CHIA shall be 
required.
    (g) Hydrologic reclamation plan. The application shall include a 
plan, with maps and descriptions, indicating how the relevant 
requirements of part 817 of this chapter, including Sec. Sec. 817.41 to 
817.43, will be met. The plan shall be specific to the local hydrologic 
conditions. It shall contain the steps to be taken during mining and 
reclamation through bond release to minimize disturbance to the 
hydrologic balance within the permit and adjacent areas; to prevent 
material damage outside the permit area; and to meet applicable Federal 
and State water quality laws and regulations. The plan shall include the 
measures to be taken to: avoid acid

[[Page 252]]

or toxic drainage; prevent, to the extent possible using the best 
technology currently available, additional contributions of suspended 
solids to streamflow; provide water treatment facilities when needed; 
and control drainage. The plan shall specifically address any potential 
adverse hydrologic consequences identified in the PHC determination 
prepared under paragraph (e) of this section and shall include 
preventive and remedial measures.
    (h) Ground-water monitoring plan. (1) The application shall include 
a ground-water monitoring plan based upon the PHC determination required 
under paragraph (e) of this section and the analysis of all baseline 
hydrologic, geologic and other information in the permit application. 
The plan shall provide for the monitoring of parameters that relate to 
the suitability of the ground water for current and approved postmining 
land uses and to the objectives for protection of the hydrologic balance 
set forth in paragraph (g) of this section. It shall identify the 
quantity and quality parameters to be monitored, sampling frequency and 
site locations. It shall describe how the data may be used to determine 
the impacts of the operation upon the hydrologic balance. At a minimum, 
total dissolved solids or specific conductance corrected to 25 [deg]C, 
pH, total iron, total manganese, and water levels shall be monitored and 
data submitted to the regulatory authority at least every 3 months for 
each monitoring location. The regulatory authority may require 
additional monitoring.
    (2) If an applicant can demonstrate by the use of the PHC 
determination and other available information that a particular water-
bearing stratum in the proposed permit and adjacent areas is not one 
which serves as an aquifer which significantly ensures the hydrologic 
balance within the cumulative impact area, then monitoring of that 
stratum may be waived by the regulatory authority.
    (i) Surface-water monitoring plan. (1) The application shall include 
a surface-water monitoring plan based upon the PHC determination 
required under paragraph (e) of this section and the analysis of all 
baseline hydrologic, geologic and other information in the permit 
application. The plan shall provide for the monitoring of parameters 
that relate to the suitability of the surface water for current and 
approved postmining land uses and to the objectives for protection of 
the hydrologic balance as set forth in paragraph (g) of this section as 
well as the effluent limitations found at 40 CFR part 434.
    (2) The plan shall identify the surface-water quantity and quality 
parameters to be monitored, sampling frequency and site locations. It 
shall describe how the data may be used to determine the impacts of the 
operation upon the hydrologic balance.
    (i) At all monitoring locations in streams, lakes, and impoundments, 
that are potentially impacted or into which water will be discharged and 
at upstream monitoring locations, the total dissolved solids or specific 
conductance corrected at 25 [deg]C, total suspended solids, pH, total 
iron, total manganese, and flow shall be monitored.
    (ii) For point-source discharges, monitoring shall be conducted in 
accordance with 40 CFR parts 122, 123 and 434 and as required by the 
National Pollutant Discharge Elimination System permitting authority.
    (3) The monitoring reports shall be submitted to the regulatory 
authority every 3 months. The regulatory authority may require 
additional monitoring.

[48 FR 43987, Sept. 26, 1983, as amended at 52 FR 45923, Dec. 2, 1987; 
53 FR 36401, Sept. 19, 1988; 60 FR 16748, Mar. 31, 1995]



Sec. 784.15  Reclamation plan: Land use information.

    (a) The plan shall contain a statement of the condition, capability, 
and productivity of the land within the proposed permit area, including:
    (1) A map and supporting narrative of the uses of the land existing 
at the time of the filing of the application. If the premining use of 
the land was changed within 5 years before the anticipated date of 
beginning the proposed operations, the historic use of the land shall 
also be described. In the case of previously mined land, the use of the 
land prior to any mining shall also be described to the extent such 
information is available.

[[Page 253]]

    (2) A narrative of land capability and productivity, which analyzes 
the land-use description under paragraph (a) of this section in 
conjunction with other environmental resources information. The 
narrative shall provide analyses of:
    (i) The capability of the land before any mining to support a 
variety of uses, giving consideration to soil and foundation 
characteristics, topography, vegetative cover, and the hydrology of the 
proposed permit area; and
    (ii) The productivity of the proposed permit area before mining, 
expressed as average yield of food, fiber, forage, or wood products from 
such lands obtained under high levels of management. The productivity 
shall be determined by yield data or estimates for similar sites based 
on current data from the U.S. Department of Agriculture, State 
agricultural universities, or appropriate State natural resource or 
agricultural agencies.
    (b) Each plan shall contain a detailed description of the proposed 
use, following reclamation, of the land within the proposed permit area 
including a discussion of the utility and capacity of the reclaimed land 
to support a variety of alternative uses, and the relationship of the 
proposed use to existing land use policies and plans. This description 
shall explain:
    (1) How the proposed postmining land use is to be achieved and the 
necessary support activities which may be needed to achieve the proposed 
land use; and
    (2) Where a land use different from the premining land use is 
proposed, all materials needed for approval of the alternative use under 
30 CFR 817.133.
    (3) The consideration which has been given to making all of the 
proposed surface mining activities consistent with surface owner plans 
and applicable State and local land use plans and programs.
    (c) The description shall be accompanied by a copy of the comments 
concerning the proposed use by the legal or equitable owner of record of 
the surface of the proposed permit area and the State and local 
government agencies which would have to initiate, implement, approve, or 
authorize the proposed use of the land following reclamation.

[59 FR 27937, May 27, 1994]



Sec. 784.16  Reclamation plan: Siltation structures, impoundments, and refuse 

piles.

    (a) General. Each application must include a general plan and a 
detailed design plan for each proposed siltation structure, impoundment, 
and refuse pile within the proposed permit area.
    (1) Each general plan must--
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, a professional geologist, 
or in any State which authorizes land surveyors to prepare and certify 
such plans, a qualified, registered, professional, land surveyor with 
assistance from experts in related fields such as landscape 
architecture;
    (ii) Contain a description, map, and cross section of the structure 
and its location;
    (iii) Contain preliminary hydrologic and geologic information 
required to assess the hydrologic impact of the structure;
    (iv) Contain a survey describing the potential effect on the 
structure from subsidence of the subsurface strata resulting from past 
underground mining operations if underground mining has occurred; and
    (v) Contain a certification statement which includes a schedule 
setting forth the dates when any detailed design plans for structures 
that are not submitted with the general plan will be submitted to the 
regulatory authority. The regulatory authority shall have approved, in 
writing, the detailed design plan for a structure before construction of 
the structure begins.
    (2)(i) Impoundments meeting the criteria for Significant Hazard 
Class or High Hazard Class (formerly Class B or C) dams in ``Earth Dams 
and Reservoirs,'' Technical Release No. 60 (210-VI-TR60, July 2005), 
published by the U.S. Department of Agriculture, Natural Resources 
Conservation Service, must comply with the requirements of this section 
for structures that meet the criteria in Sec. 77.216(a) of this title. 
Technical Release No.60 (TR-60) is hereby incorporated by reference. The

[[Page 254]]

Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may 
review and download the incorporated document from the Natural Resources 
Conservation Service's Web site at http://www.info.usda.gov/scripts/
lpsiis.dll/TR/TR--210--60.htm. You may inspect and obtain a copy of this 
document which is on file at the Administrative Record Room, Office of 
Surface Mining Reclamation and Enforcement, 1951 Constitution Avenue, 
NW., Washington, DC 20240. For information on the availability of this 
document at OSM, call 202-208-2823. You also may inspect a copy of this 
document at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030 or go to http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html.
    (ii) Each detailed design plan for a structure that meets the 
criteria in Sec. 77.216(a) of this title must--
    (A) Be prepared by, or under the direction of, and certified by a 
qualified registered professional engineer with assistance from experts 
in related fields such as geology, land surveying, and landscape 
architecture;
    (B) Include any geotechnical investigation, design, and construction 
requirements for the structure;
    (C) Describe the operation and maintenance requirements for each 
structure; and
    (D) Describe the timetable and plans to remove each structure, if 
appropriate.
    (3) Each detailed design plan for structures not included in 
paragraph (a)(2) of this section shall:
    (i) Be prepared by, or under the direction of, and certified by a 
qualified, registered, professional engineer, or in any State which 
authorizes land surveyors to prepare and certify such plans, a 
qualified, registered, professional, land surveyor, except that all coal 
processing waste dams and embankments covered by Sec. Sec. 817.81 
through 817.84 of this chapter shall be certified by a qualified, 
registered, professional engineer;
    (ii) Include any design and construction requirements for the 
structure, including any required geotechnical information;
    (iii) Describe the operation and maintenance requirements for each 
structure; and
    (iv) Describe the timetable and plans to remove each structure, if 
appropriate.
    (b) Siltation structures. Siltation structures shall be designed in 
compliance with the requirements of Sec. 817.46 of this chapter.
    (c) Permanent and temporary impoundments. (1) Permanent and 
temporary impoundments shall be designed to comply with the requirements 
of Sec. 817.49 of this chapter.
    (2) Each plan for an impoundment meeting the criteria in Sec. 
77.216(a) of this title must comply with the requirements of Sec. 
77.216-2 of this title. The plan required to be submitted to the 
District Manager of MSHA under Sec. 77.216 of this title must be 
submitted to the regulatory authority as part of the permit application.
    (3) For impoundments not included in paragraph (a)(2) of this 
section the regulatory authority may establish through the State program 
approval process engineering design standards that ensure stability 
comparable to a 1.3 minimum static safety factor in lieu of engineering 
tests to establish compliance with the minimum static safety factor of 
1.3 specified in Sec. 817.49(a)(4)(ii) of this chapter.
    (4) If the structure meets the Significant Hazard Class or High 
Hazard Class criteria for dams in TR-60 or meets the criteria of Sec. 
77.216(a) of this chapter, each plan must include a stability analysis 
of the structure. The stability analysis must include, but not be 
limited to, strength parameters, pore pressures, and long-term seepage 
conditions. The plan also must contain a description of each engineering 
design assumption and calculation with a discussion of each alternative 
considered in selecting the specific design parameters and construction 
methods.
    (d) Coal mine waste impoundments and refuse piles. If you, the 
permit applicant, propose to place coal mine waste in a refuse pile or 
impoundment, or if

[[Page 255]]

you plan to use coal mine waste to construct an impounding structure, 
you must comply with the applicable requirements in paragraphs (d)(1) 
through (d)(3) of this section.
    (1) Addressing impacts to perennial and intermittent streams and 
related environmental values. You must design the operation to avoid 
placement of coal mine waste in or within 100 feet of a perennial or 
intermittent stream to the extent possible. If avoidance is not 
possible, you must--
    (i) Explain, to the satisfaction of the regulatory authority, why an 
alternative coal mine waste disposal method or an alternative location 
or configuration that does not involve placement of coal mine waste in 
or within 100 feet of a perennial or intermittent stream is not 
reasonably possible.
    (ii) Identify a reasonable range of alternative locations or 
configurations for any proposed refuse piles or coal mine waste 
impoundments. This provision does not require identification of all 
potential alternatives. You need identify only those reasonably possible 
alternatives that are likely to differ significantly in terms of impacts 
on fish, wildlife, and related environmental values. An alternative is 
reasonably possible if it meets all the following criteria:
    (A) The alternative conforms to the safety, engineering, design, and 
construction requirements of the regulatory program.
    (B) The alternative is capable of being done after consideration of 
cost, logistics, and available technology. The fact that one alternative 
may cost somewhat more than a different alternative does not necessarily 
warrant exclusion of the more costly alternative from consideration. 
However, an alternative generally may be considered unreasonable if its 
cost is substantially greater than the costs normally associated with 
this type of project.
    (C) The alternative is consistent with the coal recovery provisions 
of Sec. 817.59 of this chapter.
    (iii) Analyze the impacts of the alternatives identified in 
paragraph (d)(1)(ii) of this section on fish, wildlife, and related 
environmental values. The analysis must consider impacts on both aquatic 
and terrestrial ecosystems.
    (A) For every alternative that proposes placement of coal mine waste 
in a perennial or intermittent stream, the analysis must include an 
evaluation of impacts on the physical, chemical, and biological 
characteristics of the stream downstream of the proposed refuse pile or 
coal mine waste impoundment, including seasonal variations in 
temperature and volume, changes in stream turbidity or sedimentation, 
the degree to which the coal mine waste may introduce or increase 
contaminants, and the effects on aquatic organisms and the wildlife that 
is dependent upon the stream.
    (B) If you have prepared an analysis of alternatives for the 
proposed impoundment or refuse pile under 40 CFR 230.10 to meet Clean 
Water Act requirements, you may initially submit a copy of that analysis 
in lieu of the analysis required under paragraph (d)(1)(iii)(A) of this 
section. The regulatory authority will determine the extent to which 
that analysis satisfies the requirements of paragraph (d)(1)(iii)(A) of 
this section.
    (iv) Select the alternative with the least overall adverse impact on 
fish, wildlife, and related environmental values, including adverse 
impacts on water quality and aquatic and terrestrial ecosystems.
    (2) Design requirements for refuse piles. Refuse piles must be 
designed to comply with the requirements of Sec. Sec. 817.81 and 817.83 
of this chapter.
    (3) Design requirements for impoundments and impounding structures. 
Impounding structures constructed of or intended to impound coal mine 
waste must be designed to comply with the requirements of Sec. Sec. 
817.81 and 817.84 of this chapter, which incorporate the requirements of 
paragraphs (a) and (c) of Sec. 817.49 of this chapter. In addition,--
    (i) The plan for each structure that meets the criteria of Sec. 
77.216(a) of this title must comply with the requirements of Sec. 
77.216-2 of this title; and
    (ii) Each plan for a coal mine waste impoundment must contain the 
results of a geotechnical investigation to determine the structural 
competence of the foundation that will support the proposed impounding 
structure and the impounded material. An engineer or engineering 
geologist must plan and

[[Page 256]]

supervise the geotechnical investigation. In planning the investigation, 
the engineer or geologist must--
    (A) Determine the number, location, and depth of borings and test 
pits using current prudent engineering practice for the size of the 
impoundment and the impounding structure, the quantity of material to be 
impounded, and subsurface conditions.
    (B) Consider the character of the overburden and bedrock, the 
proposed abutment sites for the impounding structure, and any adverse 
geotechnical conditions that may affect the particular impoundment.
    (C) Identify all springs, seepage, and groundwater flow observed or 
anticipated during wet periods in the area of the proposed impoundment.
    (D) Consider the possibility of mudflows, rock-debris falls, or 
other landslides into the impoundment or impounded material.

[44 FR 15366, Mar. 13, 1979, as amended at 45 FR 51550, Aug. 4, 1980; 48 
FR 44780, Sept. 30, 1983; 50 FR 16199, Apr. 24, 1985; 53 FR 43605, Oct. 
27, 1988; 53 FR 48614, Dec. 1, 1988; 59 FR 52028, Oct. 20, 1994; 73 FR 
75879, Dec. 12, 2008]



Sec. 784.17  Protection of publicly owned parks and historic places.

    (a) For any publicly owned parks or any places listed on the 
National Register of Historic Places that may be adversely affected by 
the proposed operation, each plan shall describe the measures to be 
used.
    (1) To prevent adverse impacts, or
    (2) If a person has valid existing rights, as determined under Sec. 
761.16 of this chapter, or if joint agency approval is to be obtained 
under Sec. 761.17(d) of this chapter, to minimize adverse impacts.
    (b) The regulatory authority may require the applicant to protect 
historic and archeological properties listed on or eligible for listing 
on the National Register of Historic Places through appropriate 
mitigation and treatment measures. Appropriate mitigation and treatment 
measures may be required to be taken after permit issuance provided that 
the required measures are completed before the properties are affected 
by any mining operation.

[52 FR 4263, Feb. 10, 1987, as amended at 64 FR 70838, Dec. 17, 1999]



Sec. 784.18  Relocation or use of public roads.

    Each application shall describe, with appropriate maps and cross 
sections, the measures to be used to ensure that the interests of the 
public and landowners affected are protected if, under Sec. 761.14 of 
this chapter, the applicant seeks to have the regulatory authority 
approve--
    (a) Conducting the proposed surface coal mining operations within 
100 feet of the right-of-way line of any public road, except where mine 
access or haul roads join that right-of-way; or
    (b) Relocating a public road.

[44 FR 15366, Mar. 13, 1979, as amended at 64 FR 70838, Dec. 17, 1999]



Sec. 784.19  Disposal of excess spoil.

    (a) If you, the permit applicant, propose to generate excess spoil 
as part of your operation, you must include the following items in your 
application--
    (1) Demonstration of minimization of excess spoil. A demonstration, 
prepared to the satisfaction of the regulatory authority, that the 
operation has been designed to minimize, to the extent possible, the 
volume of excess spoil that the operation will generate, thus ensuring 
that spoil is returned to the mined-out area to the extent possible, 
taking into consideration applicable regulations concerning restoration 
of the approximate original contour, safety, stability, and 
environmental protection and the needs of the proposed postmining land 
use.
    (2) Capacity demonstration. A demonstration, prepared to the 
satisfaction of the regulatory authority, that the designed maximum 
cumulative volume of all proposed excess spoil fills within the permit 
area is no larger than the capacity needed to accommodate the 
anticipated cumulative volume of excess spoil that the operation will 
generate, as approved by the regulatory authority under paragraph (a)(1) 
of this section.
    (3) Discussion of how you will address impacts to perennial and 
intermittent streams and related environmental values. You must design 
the operation to avoid placement of excess spoil in or within 100 feet 
of a perennial or intermittent

[[Page 257]]

stream to the extent possible. If avoidance is not possible, you must--
    (i) Explain, to the satisfaction of the regulatory authority, why an 
alternative that does not involve placement of excess spoil in or within 
100 feet of a perennial or intermittent stream is not reasonably 
possible.
    (ii) Identify a reasonable range of alternatives that vary with 
respect to the number, size, location, and configuration of proposed 
fills. This provision does not require identification of all potential 
alternatives. You need identify only those reasonably possible 
alternatives that are likely to differ significantly in terms of impacts 
on fish, wildlife, and related environmental values. An alternative is 
reasonably possible if it meets all the following criteria:
    (A) The alternative conforms to the safety, engineering, design, and 
construction requirements of the regulatory program;
    (B) The alternative is capable of being done after consideration of 
cost, logistics, and available technology. The fact that one alternative 
may cost somewhat more than a different alternative does not necessarily 
warrant exclusion of the more costly alternative from consideration. 
However, an alternative generally may be considered unreasonable if its 
cost is substantially greater than the costs normally associated with 
this type of project.
    (C) The alternative is consistent with the coal recovery provisions 
of Sec. 817.59 of this chapter.
    (iii) Analyze the impacts of the alternatives identified in 
paragraph (a)(3)(ii) of this section on fish, wildlife, and related 
environmental values. The analysis must consider impacts on both 
terrestrial and aquatic ecosystems.
    (A) For every alternative that proposes placement of excess spoil in 
a perennial or intermittent stream, the analysis must include an 
evaluation of impacts on the physical, chemical, and biological 
characteristics of the stream downstream of the proposed fill, including 
seasonal variations in temperature and volume, changes in stream 
turbidity or sedimentation, the degree to which the excess spoil may 
introduce or increase contaminants, and the effects on aquatic organisms 
and the wildlife that is dependent upon the stream.
    (B) If you have prepared an analysis of alternatives for the 
proposed fill under 40 CFR 230.10 to meet Clean Water Act requirements, 
you may initially submit a copy of that analysis with your application 
in lieu of the analysis required by paragraph (a)(3)(iii)(A) of this 
section. The regulatory authority will determine the extent to which 
that analysis satisfies the analytical requirements of paragraph 
(a)(3)(iii)(A) of this section.
    (iv) Select the alternative with the least overall adverse impact on 
fish, wildlife, and related environmental values, including adverse 
impacts on water quality and aquatic and terrestrial ecosystems.
    (4) Location. Maps and cross-section drawings showing the location 
of all proposed disposal sites and structures. You must locate fills on 
the most moderately sloping and naturally stable areas available, unless 
the regulatory authority approves a different location based upon the 
alternatives analysis under paragraph (a)(3) of this section or on other 
requirements of the Act and this chapter. Whenever possible, you must 
place fills upon or above a natural terrace, bench, or berm if that 
location would provide additional stability and prevent mass movement.
    (5) Design plans. Detailed design plans for each structure, prepared 
in accordance with the requirements of this section and Sec. Sec. 
817.71 through 817.74 of this chapter. You must design the fill and 
appurtenant structures using current prudent engineering practices and 
any additional design criteria established by the regulatory authority.
    (6) Geotechnical investigation. The results of a geotechnical 
investigation of each proposed disposal site, with the exception of 
those sites at which spoil will be placed only on a pre-existing bench 
under Sec. 817.74 of this chapter. You must conduct sufficient 
foundation investigations, as well as any necessary laboratory testing 
of foundation material, to determine the design requirements for 
foundation stability for each site. The analyses of foundation 
conditions must take into consideration the effect of underground mine 
workings, if any, upon the stability of

[[Page 258]]

the fill and appurtenant structures. The information submitted must 
include--
    (i) The character of the bedrock and any adverse geologic conditions 
in the proposed disposal area.
    (ii) A survey identifying all springs, seepage, and groundwater flow 
observed or anticipated during wet periods in the area of the proposed 
disposal site.
    (iii) A survey of the potential effects of subsidence of subsurface 
strata as a result of past and future mining operations.
    (iv) A technical description of the rock materials to be utilized in 
the construction of disposal structures containing rock chimney cores or 
underlain by a rock drainage blanket.
    (v) A stability analysis including, but not limited to, strength 
parameters, pore pressures, and long-term seepage conditions. This 
analysis must be accompanied by a description of all engineering design 
assumptions and calculations and the alternatives considered in 
selecting the design specifications and methods.
    (7) Operation and reclamation plans. Plans for the construction, 
operation, maintenance, and reclamation of all excess spoil disposal 
structures in accordance with the requirements of Sec. Sec. 817.71 
through 817.74 of this chapter.
    (8) Additional requirements for keyway cuts or rock-toe buttresses. 
If keyway cuts or rock-toe buttresses are required under Sec. 817.71(d) 
of this chapter, the number, location, and depth of borings or test 
pits, which must be determined according to the size of the spoil 
disposal structure and subsurface conditions. You also must provide the 
engineering specifications used to design the keyway cuts or rock-toe 
buttresses. Those specifications must be based upon the stability 
analysis required under paragraph (a)(7)(v) of this section.
    (b) Design certification. A qualified registered professional 
engineer experienced in the design of earth and rock fills must certify 
that the design of all fills and appurtenant structures meets the 
requirements of this section.

[73 FR 75880, Dec. 12, 2008]



Sec. 784.20  Subsidence control plan.

    (a) Pre-subsidence survey. Each application must include:
    (1) A map of the permit and adjacent areas at a scale of 1:12,000, 
or larger if determined necessary by the regulatory authority, showing 
the location and type of structures and renewable resource lands that 
subsidence may materially damage or for which the value or reasonably 
foreseeable use may be diminished by subsidence, and showing the 
location and type of drinking, domestic, and residential water supplies 
that could be contaminated, diminished, or interrupted by subsidence.
    (2) A narrative indicating whether subsidence, if it occurred, could 
cause material damage to or diminish the value or reasonably foreseeable 
use of such structures or renewable resource lands or could contaminate, 
diminish, or interrupt drinking, domestic, or residential water 
supplies.
    (3) A survey of the condition of all non-commercial buildings or 
occupied residential dwellings and structures related thereto, that may 
be materially damaged or for which the reasonably foreseeable use may be 
diminished by subsidence, within the area encompassed by the applicable 
angle of draw; as well as a survey of the quantity and quality of all 
drinking, domestic, and residential water supplies within the permit 
area and adjacent area that could be contaminated, diminished, or 
interrupted by subsidence. If the applicant cannot make this survey 
because the owner will not allow access to the site, the applicant will 
notify the owner, in writing, of the effect that denial of access will 
have as described in Sec. 817.121(c)(4) of this chapter. The applicant 
must pay for any technical assessment or engineering evaluation used to 
determine the pre-mining condition or value of such non-commercial 
buildings or occupied residential dwellings and structures related 
thereto and the quantity and quality of drinking, domestic, or 
residential water supplies. The applicant must provide copies of the 
survey and any technical assessment or engineering evaluation to the 
property owner and regulatory authority. However, the requirements to 
perform a survey of the condition of all

[[Page 259]]

noncommercial buildings or occupied residential dwellings and structures 
related thereto, that may be materially damaged or for which the 
reasonably foreseeable use may be diminished by subsidence, within the 
areas encompassed by the applicable angle of draw is suspended per court 
order.
    (b) Subsidence control plan. If the survey conducted under paragraph 
(a) of this section shows that no structures, or drinking, domestic, or 
residential water supplies, or renewable resource lands exist, or that 
no material damage or diminution in value or reasonably foreseeable use 
of such structures or lands, and no contamination, diminution, or 
interruption of such water supplies would occur as a result of mine 
subsidence, and if the regulatory authority agrees with this conclusion, 
no further information need be provided under this section. If the 
survey shows that structures, renewable resource lands, or water 
supplies exist and that subsidence could cause material damage or 
diminution in value or reasonably foreseeable use, or contamination, 
diminution, or interruption of protected water supplies, or if the 
regulatory authority determines that damage, diminution in value or 
foreseeable use, or contamination, diminution, or interruption could 
occur, the application must include a subsidence control plan that 
contains the following information:
    (1) A description of the method of coal removal, such as longwall 
mining, room-and-pillar removal or hydraulic mining, including the size, 
sequence and timing of the development of underground workings;
    (2) A map of the underground workings that describes the location 
and extent of the areas in which planned-subsidence mining methods will 
be used and that identifies all areas where the measures described in 
paragraphs (b)(4), (b)(5), and (b)(7) of this section will be taken to 
prevent or minimize subsidence and subsidence-related damage; and, when 
applicable, to correct subsidence-related material damage;
    (3) A description of the physical conditions, such as depth of 
cover, seam thickness and lithology of overlaying strata, that affect 
the likelihood or extent of subsidence and subsidence-related damage;
    (4) A description of the monitoring, if any, needed to determine the 
commencement and degree of subsidence so that, when appropriate, other 
measures can be taken to prevent, reduce or correct material damage in 
accordance with Sec. 817.121(c) of this chapter;
    (5) Except for those areas where planned subsidence is projected to 
be used, a detailed description of the subsidence control measures that 
will be taken to prevent or minimize subsidence and subsidence-related 
damage, such as, but not limited to:
    (i) Backstowing or backfilling of voids;
    (ii) Leaving support pillars of coal;
    (iii) Leaving areas in which no coal is removed, including a 
description of the overlying area to be protected by leaving coal in 
place; and
    (iv) Taking measures on the surface to prevent or minimize material 
damage or diminution in value of the surface;
    (6) A description of the anticipated effects of planned subsidence, 
if any;
    (7) For those areas where planned subsidence is projected to be 
used, a description of methods to be employed to minimize damage from 
planned subsidence to non-commercial buildings and occupied residential 
dwellings and structures related thereto; or the written consent of the 
owner of the structure or facility that minimization measures not be 
taken; or, unless the anticipated damage would constitute a threat to 
health or safety, a demonstration that the costs of minimizing damage 
exceed the anticipated costs of repair;
    (8) A description of the measures to be taken in accordance with 
Sec. Sec. 817.41(j) and 817.121(c) of this chapter to replace adversely 
affected protected water supplies or to mitigate or remedy any 
subsidence-related material damage to the land and protected structures; 
and
    (9) Other information specified by the regulatory authority as 
necessary to demonstrate that the operation will be conducted in 
accordance with Sec. 817.121 of this chapter.

[60 FR 16748, Mar. 31, 1995 as amended at 64 FR 71653, Dec. 17, 1999]

[[Page 260]]



Sec. 784.21  Fish and wildlife information.

    (a) Resource information. Each application shall include fish and 
wildlife resource information for the permit area and adjacent area.
    (1) The scope and level of detail for such information shall be 
determined by the regulatory authority in consultation with State and 
Federal agencies with responsibilities for fish and wildlife and shall 
be sufficient to design the protection and enhancement plan required 
under paragraph (b) of this section.
    (2) Site-specific resource information necessary to address the 
respective species or habitats shall be required when the permit area or 
adjacent area is likely to include:
    (i) Listed or proposed endangered or threatened species of plants or 
animals or their critical habitats listed by the Secretary under the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), or 
those species or habitats protected by similar State statutes;
    (ii) Habitats of unusually high value for fish and wildlife such as 
important streams, wetlands, riparian areas, cliffs supporting raptors, 
areas offering special shelter or protection, migration routes, or 
reproduction and wintering areas; or
    (iii) Other species or habitats identified through agency 
consultation as requiring special protection under State or Federal law.
    (b) Protection and enhancement plan. Each application shall include 
a description of how, to the extent possible using the best technology 
currently available, the operator will minimize disturbances and adverse 
impacts on fish and wildlife and related environmental values, including 
compliance with the Endangered Species Act, during the surface coal 
mining and reclamation operations and how enhancement of these resources 
will be achieved where practicable. This description shall--
    (1) Be consistent with the requirements of Sec. 817.97 of this 
chapter;
    (2) Apply, at a minimum, to species and habitats identified under 
paragraph (a) of this section; and
    (3) Include--
    (i) Protective measures that will be used during the active mining 
phase of operation. Such measures may include the establishment of 
buffer zones, the selective location and special design of haul roads 
and powerlines, and the monitoring of surface water quality and 
quantity; and
    (ii) Enchancement measures that will be used during the reclamation 
and postmining phase of operation to develop aquatic and terrestrial 
habitat. Such measures may include restoration of streams and other 
wetlands, retention of ponds and impoundments, establishment of 
vegetation for wildlife food and cover, and the placement of perches and 
nest boxes. Where the plan does not include enhancement measures, a 
statement shall be given explaining why enhancement is not practicable.
    (c) Fish and Wildlife Service review. Upon request, the regulatory 
authority shall provide the resource information required under 
paragraph (a) of this section and the protection and enhancement plan 
required under paragraph (b) of this section to the U.S. Department of 
the Interior, Fish and Wildlife Service Regional or Field Office for 
their review. This information shall be provided within 10 days of 
receipt of the request from the Service.

[52 FR 47359, Dec. 11, 1987]



Sec. 784.22  Geologic information.

    (a) General. Each application shall include geologic information in 
sufficient detail to assist in--
    (1) Determining the probable hydrologic consequences of the 
operation upon the quality and quantity of surface and ground water in 
the permit and adjacent areas, including the extent to which surface- 
and ground-water monitoring is necessary;
    (2) Determining all potentially acid- or toxic-forming strata down 
to and including the stratum immediately below the coal seam to be 
mined;
    (3) Determining whether reclamation as required by this chapter can 
be accomplished and whether the proposed operation has been designed to 
prevent material damage to the hydrologic balance outside the permit 
area; and
    (4) Preparing the subsidence control plan under Sec. 784.20.
    (b) Geologic information shall include, at a minimum, the following:

[[Page 261]]

    (1) A description of the geology of the proposed permit and adjacent 
areas down to and including the deeper of either the stratum immediately 
below the lowest coal seam to be mined or any aquifer below the lowest 
coal seam to be mined which may be adversely impacted by mining. This 
description shall include the areal and structural geology of the permit 
and adjacent areas, and other parameters which influence the required 
reclamation and it shall also show how the areal and structural geology 
may affect the occurrence, availability, movement, quantity and quality 
of potentially impacted surface and ground water. It shall be based on--
    (i) The cross sections, maps, and plans required by Sec. 783.25 of 
this chapter;
    (ii) The information obtained under paragraphs (b)(2), (b)(3), and 
(c) of this section; and
    (iii) Geologic literature and practices.
    (2) For any portion of a permit area in which the strata down to the 
coal seam to be mined will be removed or are already exposed, samples 
shall be collected and analyzed from test borings; drill cores; or 
fresh, unweathered, uncontaminated samples from rock outcrops down to 
and including the deeper of either the stratum immediately below the 
lowest coal seam to be mined or any aquifer below the lowest coal seam 
to be mined which may be adversely impacted by mining. The analyses 
shall result in the following:
    (i) Logs showing the lithologic characteristics including physical 
properties and thickness of each stratum and location of ground water 
where occurring;
    (ii) Chemical analyses identifying those strata that may contain 
acid- or toxic-forming, or alkalinity-producing materials and to 
determine their content except that the regulatory authority may find 
that the analysis for alkalinity-producing material is unnecessary; and
    (iii) Chemical analysis of the coal seam for acid- or toxic-forming 
materials, including the total sulfur and pyritic sulfur, except that 
the regulatory authority may find that the analysis of pyritic sulfur 
content is unnecessary.
    (3) For lands within the permit and adjacent areas where the strata 
above the coal seam to be mined will not be removed, samples shall be 
collected and analyzed from test borings or drill cores to provide the 
following data:
    (i) Logs of drill holes showing the lithologic characteristics, 
including physical properties and thickness of each stratum that may be 
impacted, and location of ground water where occurring;
    (ii) Chemical analyses for acid- or toxic-forming or alkalinity-
producing materials and their content in the strata immediately above 
and below the coal seam to be mined;
    (iii) Chemical analyses of the coal seam for acid- or toxic-forming 
materials, including the total sulfur and pyritic sulfur, except that 
the regulatory authority may find that the analysis of pyrite sulfur 
content is unnecessary; and
    (iv) For standard room and pillar mining operations, the thickness 
and engineering properties of clays or soft rock such as clay shale, if 
any, in the stratum immediately above and below each coal seam to be 
mined.
    (c) If determined to be necessary to protect the hydrologic balance, 
to minimize or prevent subsidence, or to meet the performance standards 
of this chapter, the regulatory authority may require the collection, 
analysis and description of geologic information in addition to that 
required by paragraph (b) of this section.
    (d) An applicant may request the regulatory authority to waive in 
whole or in part the requirements of paragraphs (b) (2) and (3) of this 
section. The waiver may be granted only if the regulatory authority 
finds in writing that the collection and analysis of such data is 
unnecessary because other information having equal value or effect is 
available to the regulatory authority in a satisfactory form.

[48 FR 43989, Sept. 26, 1983]



Sec. 784.23  Operation plan: Maps and plans.

    Each application shall contain maps and plans as follows:
    (a) The maps, plans and cross-sections shall show the underground 
mining activities to be conducted, the

[[Page 262]]

lands to be affected throughout the operation, and any change in a 
facility or feature to be caused by the proposed operations, if the 
facility or feature was shown under 30 CFR 783.24 and 783.25.
    (b) The following shall be shown for the proposed permit area:
    (1) Buildings, utility corridors, and facilities to be used;
    (2) The area of land to be affected within the proposed permit area, 
according to the sequence of mining and reclamation;
    (3) Each area of land for which a performance bond or other 
equivalent guarantee will be posted under subchapter J of this chapter;
    (4) Each coal storage, cleaning and loading area;
    (5) Each topsoil, spoil, coal preparation waste, underground 
development waste, and non-coal waste storage area;
    (6) Each water diversion, collection, conveyance, treatment, storage 
and discharge facility to be used;
    (7) Each source of waste and each waste disposal facility relating 
to coal processing or pollution control;
    (8) Each facility to be used to protect and enhance fish and 
wildlife related environmental values;
    (9) Each explosive storage and handling facility;
    (10) Locations of each siltation structure, permanent water 
impoundment, refuse pile, and coal mine waste impoundment for which 
plans are required by Sec. 784.16 of this part, and the location of 
each fill for the disposal of excess spoil for which plans are required 
under Sec. 784.19 of this part.
    (11) Each profile, at cross-sections specified by the regulatory 
authority, of the anticipated final surface configuration to be achieved 
for the affected areas;
    (12) Location of each water and subsidence monitoring point;
    (13) Location of each facility that will remain on the proposed 
permit area as a permanent feature, after the completion of underground 
mining activities.
    (c) Except as provided in Sec. Sec. 784.16(a)(2), 784.16(a)(3), 
784.19, 817.73(c), 817.74(c) and 817.81(c) of this chapter, cross 
sections, maps and plans required under paragraphs (b)(4), (5), (6), 
(10) and (11) of this section shall be prepared by, or under the 
direction of, and certified by a qualified, registered, professional 
engineer, a professional geologist, or in any State which authorizes 
land surveyors to prepare and certify such cross sections, maps and 
plans, a qualified, registered, professional, land surveyor, with 
assistance from experts in related fields such as landscape 
architecture.

[44 FR 15366, Mar. 13, 1979; 44 FR 49686, Aug. 24, 1979, as amended at 
45 FR 51550, Aug. 4, 1980; 48 FR 14822, Apr. 5, 1983; 50 FR 16199, Apr. 
24, 1985; 56 FR 65635, Dec. 17, 1991; 73 FR 75881, Dec. 12, 2008]



Sec. 784.24  Road systems.

    (a) Plans and drawings. Each applicant for an underground coal 
mining and reclamation permit shall submit plans and drawings for each 
road, as defined in Sec. 701.5 of this chapter, to be constructed, 
used, or maintained within the proposed permit area. The plans and 
drawings shall--
    (1) Include a map, appropriate cross sections, design drawings, and 
specifications for road widths, gradients, surfacing materials, cuts, 
fill embankments, culverts, bridges, drainage ditches, low-water 
crossings, and drainage structures;
    (2) Contain the drawings and specifications of each proposed road 
that is located in the channel of an intermittent or perennial stream, 
as necessary for approval of the road by the regulatory authority in 
accordance with Sec. 817.150(d)(1) of this chapter;
    (3) Contain the drawings and specifications for each proposed ford 
of perennial or intermittent streams that is used as a temporary route, 
as necessary for approval of the ford by the regulatory authority in 
accordance with Sec. 817.151(c)(2) of this chapter;
    (4) Contain a description of measures to be taken to obtain approval 
of the regulatory authority for alteration or relocation of a natural 
stream channel under Sec. 817.151(d)(5) of this chapter;
    (5) Contain the drawings and specifications for each low-water 
crossing of perennial or intermittent stream channels so that the 
regualtory authority can maximize the protection of the stream in 
accordance with Sec. 817.151(d)(6) of this chapter; and

[[Page 263]]

    (6) Describe the plans to remove and reclaim each road that would 
not be retained under an approved postmining land use, and the schedule 
for this removal and reclamation.
    (b) Primary road certification. The plans and drawings for each 
primary road shall be prepared by, or under the direction of, and 
certified by a qualified registered professional engineer, or in any 
State which authorizes land surveyors to certify the design of primary 
roads a qualified registered professional land surveyor, experienced in 
the design and construction of roads, as meeting the requirements of 
this chapter; current, prudent engineering practices; and any design 
criteria established by the regulatory authority.
    (c) Standard design plans. The regulatory authority may establish 
engineering design standards for primary roads through the State program 
approval process, in lieu of engineering tests, to establish compliance 
with the minimum static safety factor of 1.3 for all embankments 
specified in Sec. 817.151(b) of this chapter.

[53 FR 45211, Nov. 8, 1988]



Sec. 784.25  Return of coal processing waste to abandoned underground 

workings.

    (a) Each plan shall describe the design, operation and maintenance 
of any proposed coal processing waste disposal facility, including flow 
diagrams and any other necessary drawings and maps, for the approval of 
the regulatory authority and the Mine Safety and Health Administration 
under 30 CFR 817.81(f).
    (b) Each plan shall describe the source and quality of waste to be 
stowed, area to be backfilled, percent of the mine void to be filled, 
method of constructing underground retaining walls, influence of the 
backfilling operation on active underground mine operations, surface 
area to be supported by the backfill, and the anticipated occurrence of 
surface effects following backfilling.
    (c) The applicant shall describe the source of the hydraulic 
transport mediums, method of dewatering the placed backfill, retainment 
of water underground, treatment of water if released to surface streams, 
and the effect on the hydrologic regime.
    (d) The plan shall describe each permanent monitoring well to be 
located in the backfilled area, the stratum underlying the mined coal, 
and gradient from the backfilled area.
    (e) The requirements of paragraphs (a), (b), (c), and (d) of this 
section shall also apply to pneumatic backfilling operations, except 
where the operations are exempted by the regulatory authority from 
requirements specifying hydrologic monitoring.

[44 FR 15366, Mar. 13, 1979, as amended at 48 FR 44780, Sept. 30, 1983]



Sec. 784.26  Air pollution control plan.

    For all surface operations associated with underground mining 
activities, the application shall contain an air pollution control plan 
which includes the following:
    (a) An air quality monitoring program, if required by the regulatory 
authority, to provide sufficient data to evaluate the effectiveness of 
the fugitive dust control practices, under paragraph (b) of this section 
to comply with applicable Federal and State air quality standards; and
    (b) A plan for fugitive dust control practices, as required under 30 
CFR 817.95.



Sec. 784.28  Surface activities in or adjacent to perennial or intermittent 

streams.

    (a) Applicability. (1) In general. Except as otherwise provided in 
paragraph (a)(2) of this section, this section applies to underground 
mining permit applications that propose to conduct surface activities in 
perennial or intermittent streams or on the surface of lands within 100 
feet, measured horizontally, of perennial or intermittent streams.
    (2) Exceptions. (i) Coal preparation plants not located within the 
permit area of a mine. This section does not apply to applications under 
Sec. 785.21 of this chapter for coal preparation plants that are not 
located within the permit area of a mine.
    (ii) Stream-channel diversions. Paragraphs (b) through (e) of this 
section do not apply to diversions of perennial or

[[Page 264]]

intermittent streams, which are governed by Sec. 784.29 of this part 
and Sec. 817.43 of this chapter.
    (b) Application requirements for activities in a perennial or 
intermittent stream. If you propose to conduct one or more of the 
activities listed in paragraphs (b)(2) through (b)(4) of Sec. 817.57 of 
this chapter in a perennial or intermittent stream, your application 
must demonstrate that--
    (1) Avoiding disturbance of the stream is not reasonably possible; 
and
    (2) The proposed activities will comply with all applicable 
requirements in paragraphs (b) and (c) of Sec. 817.57 of this chapter.
    (c) Application requirements for surface activities within 100 feet 
of a perennial or intermittent stream. If you propose to conduct surface 
activities within 100 feet of a perennial or intermittent stream, but 
not in the stream itself, and those activities would occur on the 
surface of land subject to the buffer requirement of Sec. 817.57(a)(1) 
of this chapter, your application must--
    (1) Demonstrate that avoiding disturbance of land within 100 feet of 
the stream either is not reasonably possible or is not necessary to meet 
the fish and wildlife and hydrologic balance protection requirements of 
the regulatory program;
    (2) Identify any lesser buffer that you propose to implement instead 
of maintaining a 100-foot undisturbed buffer between surface activities 
and the perennial or intermittent stream; and
    (3) Explain how the lesser buffer, together with any other 
protective measures that you propose to implement, constitute the best 
technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible, as 
required by Sec. Sec. 784.14(g) and 817.41(d)(1) of this chapter; and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, as required by 
Sec. Sec. 784.21(b) and 817.97(a) of this chapter.
    (d) Approval requirements for activities in a perennial or 
intermittent stream. Before approving any surface activities in a 
perennial or intermittent stream, the regulatory authority must--
    (1) Find in writing that--
    (i) Avoiding disturbance of the stream is not reasonably possible; 
and
    (ii) The plans submitted with the application meet all applicable 
requirements in paragraphs (b) and (c) of Sec. 817.57 of this chapter.
    (2) Include a permit condition requiring a demonstration of 
compliance with the Clean Water Act in the manner specified in Sec. 
817.57(a)(2) of this chapter before the permittee may conduct any 
activities in a perennial or intermittent stream that require 
authorization or certification under the Clean Water Act.
    (e) Approval requirements for surface activities within 100 feet of 
a perennial or intermittent stream. Before approving any surface 
activities that would disturb the surface of land subject to the buffer 
requirement of Sec. 817.57(a)(1) of this chapter, the regulatory 
authority must find in writing that--
    (1) Avoiding disturbance of the surface of land within 100 feet of 
the stream either is not reasonably possible or is not necessary to meet 
the fish and wildlife and hydrologic balance protection requirements of 
the regulatory program; and
    (2) The measures proposed under paragraphs (c)(2) and (c)(3) of this 
section constitute the best technology currently available to--
    (i) Prevent the contribution of additional suspended solids to 
streamflow or runoff outside the permit area to the extent possible, as 
required by Sec. Sec. 784.14(g) and 817.41(d)(1) of this chapter; and
    (ii) Minimize disturbances and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, as required by 
Sec. Sec. 784.21(b) and 817.97(a) of this chapter.
    (f) Relationship to the Clean Water Act. (1) In all cases, your 
application must identify the authorizations and certifications that you 
anticipate will be needed under sections 401, 402, and 404 of the Clean 
Water Act, 33 U.S.C. 1341, 1342, and 1344, and describe the steps that 
you have taken or will take to procure those authorizations and 
certifications.

[[Page 265]]

    (2) The regulatory authority will process your application and may 
issue the permit before you obtain all necessary authorizations and 
certifications under the Clean Water Act, 33 U.S.C. 1251 et seq., 
provided your application meets all applicable requirements of 
subchapter G of this chapter. However, issuance of a permit does not 
authorize you to initiate any activities for which Clean Water Act 
authorization or certification is required. Information submitted and 
analyses conducted under subchapter G of this chapter may inform the 
agency responsible for authorizations and certifications under sections 
401, 402, and 404 of the Clean Water Act, 33 U.S.C. 1341, 1342, and 
1344, but they are not a substitute for the reviews, authorizations, and 
certifications required under those sections of the Clean Water Act.

[73 FR 75881, Dec. 12, 2008]



Sec. 784.29  Diversions.

    Each application shall contain descriptions, including maps and 
cross sections, of stream channel diversions and other diversions to be 
constructed within the proposed permit area to achieve compliance with 
Sec. 817.43 of this chapter.

[44 FR 15366, Mar. 13, 1979. Redesignated and amended at 48 FR 43989, 
Sept. 26, 1983]



Sec. 784.30  Support facilities.

    Each applicant for an underground coal mining and reclamation permit 
shall submit a description, plans, and drawings for each support 
facility to be constructed, used, or maintained within the proposed 
permit area. The plans and drawings shall include a map, appropriate 
cross sections, design drawings, and specifications sufficient to 
demonstrate compliance with Sec. 817.181 of this chapter for each 
facility.

[53 FR 45211, Nov. 8, 1988]



Sec. 784.200  Interpretive rules related to General Performance Standards.

    The following interpretation of rules promulgated in part 784 of 
this chapter have been adopted by the Office of Surface Mining 
Reclamation and Enforcement.
    (a) Interpretation of Sec. 784.15: Reclamation plan: Postmining 
land uses. (1) The requirements of Sec. 784.15(a)(2), for approval of 
an alternative postmining land use, may be met by requesting approval 
through the permit revision procedures of Sec. 774.13 rather than 
requesting such approval in the original permit application. The 
original permit application, however, must demonstrate that the land 
will be returned to its premining land use capability as required by 
Sec. 817.133(a). An application for a permit revision of this type, (i) 
must be submitted in accordance with the filing deadlines of Sec. 
774.13, (ii) shall constitute a significant alteration from the mining 
operations contemplated by the original permit, and (iii) shall be 
subject to the requirements of 30 CFR parts 773 and 775.
    (b) [Reserved]

[45 FR 64908, Oct. 1, 1980, as amended at 48 FR 44780, Sept. 30, 1983]



PART 785_REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING--Table of 

Contents



Sec.
785.1 Scope.
785.2 Objective.
785.10 Information collection.
785.11 Anthracite surface coal mining and reclamation operations.
785.12 Special bituminous surface coal mining and reclamation 
          operations.
785.13 Experimental practices mining.
785.14 Mountaintop removal mining.
785.15 Steep slope mining.
785.16 Permits incorporating variances from approximate original contour 
          restoration requirements for steep slope mining.
785.17 Prime farmlands.
785.18 Variances for delay in contemporaneous reclamation requirement in 
          combined surface and underground mining activities.
785.19 Surface coal mining and reclamation operations on areas or 
          adjacent to areas including alluvial valley floors in the arid 
          and semi-arid areas west of the 100th meridian.
785.20 Augering.
785.21 Coal preparation plants not located within the permit area of a 
          mine.
785.22 In situ processing activities.
785.25 Lands eligible for remining.

    Authority: 30 U.S.C. 1201 et seq. as

    Source: 44 FR 15370, Mar. 13, 1979, unless otherwise noted.

[[Page 266]]



Sec. 785.1  Scope.

    This part establishes the minimum requirements for regulatory 
program provisions for permits for certain categories of surface coal 
mining and reclamation operations. These requirements are in addition to 
the general permit requirements contained in this subchapter G. All of 
the provisions of subchapter G apply to these operations, unless 
otherwise specifically provided in this part.



Sec. 785.2  Objective.

    The objective of this part is to ensure that permits are issued for 
certain categories of surface coal mining and reclamation operations 
only after the regulatory authority receives information that shows that 
these operations will be conducted according to the applicable 
requirements of the Act, subchapter K, and applicable regulatory 
programs.



Sec. 785.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
part 785 and assigned it control number 1029-0040. The information is 
being collected to meet the requirements of sections 507, 508, 510, 515, 
701 and 711 of Public Law 95-87, which requires applicants for special 
types of mining activities to provide descriptions, maps, plans and data 
of the proposed activity. This information will be used by the 
regulatory authority in determining if the applicant can meet the 
applicable performance standards for the special type of mining 
activity. Persons must respond to obtain a benefit. A Federal agency may 
not conduct or sponsor, and you are not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number.

[73 FR 67630, Nov. 14, 2008]



Sec. 785.11  Anthracite surface coal mining and reclamation operations.

    (a) This section applies to any person who conducts or intends to 
conduct anthracite surface coal mining and reclamation operations in 
Pennsylvania.
    (b) Each person who intends to conduct anthracite surface coal 
mining and reclamation operations in Pennsylvania shall apply for and 
obtain a permit in accordance with the requirements of this subchapter. 
The following standards apply to applications for and issuance of 
permits:
    (1) In lieu of the requirements of 30 CFR parts 816-817, the 
requirements of 30 CFR part 820 shall apply.
    (2) All other requirements of this chapter including the bonding and 
insurance requirements of 30 CFR 800.70, except the bond limits and the 
period of revegetation responsibility, to the extent they are required 
under sections 509 or 510 of the Act, shall apply.
    (c) If the Pennsylvania anthracite permanent regulatory program in 
effect on August 3, 1977, is amended with respect to environmental 
protection performance standards, the Secretary shall issue additional 
regulations necessary to meet the purposes of the Act.

[44 FR 15370, Mar. 13, 1979, as amended at 48 FR 44780, Sept. 30, 1983]



Sec. 785.12  Special bituminous surface coal mining and reclamation 

operations.

    (a) This section applies to any person who conducts or intends to 
conduct certain special bituminous coal surface mine operations in 
Wyoming.
    (b) Each application for a permit for a special bituminous coal mine 
operation shall include, as part of the mining operations and 
reclamation plan, the detailed descriptions, maps and plans needed to 
demonstrate that the operations will comply with the requirements of the 
Act and 30 CFR part 825.
    (c) The regulatory authority may issue a permit for a special 
bituminous coal mine operation for which a complete application has been 
filed in accordance with this section, if it finds, in writing, that the 
operation will be conducted in compliance with the Act and 30 CFR part 
825.
    (d) Upon amendment or revision to the Wyoming regulatory program, 
regulations, or decisions made thereunder, governing special bituminous 
coal mines, the Secretary shall issue additional regulations necessary 
to meet the purposes of the Act.

[[Page 267]]



Sec. 785.13  Experimental practices mining.

    (a) Experimental practices provide a variance from environmental 
protection performance standards of the Act, of subchapter K of this 
chapter, and the regulatory program for experimental or research 
purposes, or to allow an alternative postmining land use, and may be 
undertaken if they are approved by the regulatory authority and the 
Director and if they are incorporated in a permit or permit revision 
issued in accordance with the requirements of subchapter G of this 
chapter.
    (b) An application for an experimental practice shall contain 
descriptions, maps, plans, and data which show--
    (1) The nature of the experimental practice, including a description 
of the performance standards for which variances are requested, the 
duration of the experimental practice, and any special monitoring which 
will be conducted;
    (2) How use of the experimental practice encourages advances in 
mining and reclamation technology or allows a postmining land use for 
industrial, commercial, residential, or public use (including recreation 
facilities) on an experimental basis;
    (3) That the experimental practice--
    (i) Is potentially more, or at least as, environmentally protective, 
during and after mining operations, as would otherwise be required by 
standards promulgated under subchapter K of this chapter; and
    (ii) Will not reduce the protection afforded public health and 
safety below that provided by the requirements of subchapter K of this 
chapter; and
    (4) That the applicant will conduct monitoring of the effects of the 
experimental practice. The monitoring program shall ensure the 
collection, analysis, and reporting of reliable data that are sufficient 
to enable the regulatory authority and the Director to--
    (i) Evaluate the effectiveness of the experimental practice; and
    (ii) Identify, at the earliest possible time, potential risk to the 
environment and public health and safety which may be caused by the 
experimental practice during and after mining.
    (c) Applications for experimental practices shall comply with the 
public notice requirements of Sec. 773.6 of this chapter.
    (d) No application for an experimental practice under this section 
shall be approved until the regulatory authority first finds in writing 
and the Director then concurs that--
    (1) The experimental practice encourages advances in mining and 
reclamation technology or allows a postmining land use for industrial, 
commercial, residential, or public use (including recreational 
facilities) on an experimental basis;
    (2) The experimental practice is potentially more, or at least as, 
environmentally protective, during and after mining operations, as would 
otherwise be required by standards promulgated under subchapter K of 
this chapter;
    (3) The mining operations approved for a particular land-use or 
other purpose are not larger or more numerous than necessary to 
determine the effectiveness and economic feasibility of the experimental 
practice; and
    (4) The experimental practice does not reduce the protection 
afforded public health and safety below that provided by standards 
promulgated under subchapter K of this chapter.
    (e) Experimental practices granting variances from the special 
environmental protection performance standards of sections 515 and 516 
of the Act applicable to prime farmlands shall be approved only after 
consultation with the U.S. Department of Agriculture, Soil Conservation 
Service.
    (f) Each person undertaking an experimental practice shall conduct 
the periodic monitoring, recording and reporting program set forth in 
the application, and shall satisfy such additional requirements as the 
regulatory authority or the Director may impose to ensure protection of 
the public health and safety and the environment.
    (g) Each experimental practice shall be reviewed by the regulatory 
authority at a frequeny set forth in the approved permit, but no less 
frequently than every 2\1/2\ years. After review, the regulatory 
authority may require such reasonable modifications of the experimental 
practice as are necessary to ensure that the activities fully protect

[[Page 268]]

the environment and the public health and safety. Copies of the decision 
of the regulatory authority shall be sent to the permittee and shall be 
subject to the provisions for administrative and judicial review of part 
775 of this chapter.
    (h) Revisions or modifications to an experimental practice shall be 
processed in accordance with the requirements of Sec. 774.13 of this 
chapter and approved by the regulatory authority. Any revisions which 
propose significant alterations in the experimental practice shall, at a 
minimum, be subject to notice, hearing, and public participation 
requirements of Sec. 773.6 of this chapter and concurrence by the 
Director. Revisions that do not propose significant alterations in the 
experimental practice shall not require concurrence by the Director.

[48 FR 9484, Mar. 4, 1983, as amended at 65 FR 79669, Dec. 19, 2000]



Sec. 785.14  Mountaintop removal mining.

    (a) This section applies to any person who conducts or intends to 
conduct surface mining activities by mountaintop removal mining.
    (b) Mountaintop removal mining means surface mining activities, 
where the mining operation removes an entire coal seam or seams running 
through the upper fraction of a mountain, ridge, or hill, except as 
provided for in 30 CFR 824.11(a)(6), by removing substantially all of 
the overburden off the bench and creating a level plateau or a gently 
rolling contour, with no highwalls remaining, and capable of supporting 
postmining land uses in accordance with the requirements of this 
section.
    (c) The regulatory authority may issue a permit for mountaintop 
removal mining, without regard to the requirements of Sec. Sec. 
816.102, 816.104, 816.105, and 816.107 of this chapter to restore the 
lands disturbed by such mining to their approximate original contour, if 
it first finds, in writing, on the basis of a complete application, that 
the following requirements are met:
    (1) The proposed postmining land use of the lands to be affected 
will be an industrial, commercial, agricultural, residential, or public 
facility (including recreational facilities) use and, if--
    (i) After consultation with the appropriate land-use planning 
agencies, if any, the proposed land use is deemed by the regulatory 
authority to constitute an equal or better economic or public use of the 
affected land compared with the pre-mining use;
    (ii) The applicant demonstrates compliance with the requirements for 
acceptable alternative postmining land uses of paragraphs (a) through 
(c) of Sec. 816.133 of this chapter;
    (iii) The applicant has presented specific plans for the proposed 
postmining land use and appropriate assurances that such use will be--
    (A) Compatible with adjacent land uses;
    (B) Obtainable according to data regarding expected need and market;
    (C) Assured of investment in necessary public facilities;
    (D) Supported by commitments from public agencies where appropriate;
    (E) Practicable with respect to private financial capability for 
completion of the proposed use;
    (F) Planned pursuant to a schedule attached to the reclamation plan 
so as to integrate the mining operation and reclamation with the 
postmining land use; and
    (G) Designed by a registered engineer in conformance with 
professional standards established to assure the stability, drainage, 
and configuation necessary for the intended use of the site.
    (iv) The proposed use would be consistent with adjacent land use and 
existing State and local land use plans and programs; and
    (v) The regulatory authority has provided, in writing, an 
opportunity of not more than 60 days to review and comment on such 
proposed use to the governing body of general purpose government in 
whose jurisdiction the land is located and any State or Federal agency 
which the regulatory authority, in its discretion, determines to have an 
interest in the proposed use.
    (2) The applicant demonstrates that in place of restoration of the 
land to be affected to the approximate original contour under Sec. Sec. 
816.102, 816.104, 816.105, and 816.107 of this chapter, the operation 
will be conducted in compliance with the requirements of part 824 of 
this chapter.

[[Page 269]]

    (3) The requirements of 30 CFR 824 are made a specific condition of 
the permit.
    (4) All other requirements of the Act, this chapter, and the 
regulatory program are met by the proposed operations.
    (5) The permit is clearly identified as being for mountaintop 
removal mining.
    (d)(1) Any permits incorporating a variance issued under this 
section shall be reviewed by the regulatory authority to evaluate the 
progress and development of mining activities to establish that the 
operator is proceeding in accordance with the terms of the variance--
    (i) Within the sixth month preceding the third year from the date of 
its issuance;
    (ii) Before each permit renewal; and
    (iii) Not later than the middle of each permit term.
    (2) Any review required under paragraph (d)(1) of this section need 
not be held if the permittee has demonstrated and the regulatory 
authority finds, in writing, within three months before the scheduled 
review, that all operations under the permit are proceeding and will 
continue to be conducted in accordance with the terms of the permit and 
requirements of the Act, this chapter, and the regulatory program.
    (3) The terms and conditions of a permit for mountaintop removal 
mining may be modified at any time by the regulatory authority, if it 
determines that more stringent measures are necessary to insure that the 
operation involved is conducted in compliance with the requirements of 
the Act, this chapter, and the regulatory program.

[44 FR 15370, Mar. 13, 1979, as amended at 48 FR 39904, Sept. 1, 1983; 
52 FR 39183, Oct. 20, 1987]



Sec. 785.15  Steep slope mining.

    (a) This section applies to any persons who conducts or intends to 
conduct steep slope surface coal mining and reclamation operations, 
except--
    (1) Where an operator proposes to conduct surface coal mining and 
reclamation operations on flat or gently rolling terrain, leaving a 
plain or predominantly flat area, but on which an occasional steep slope 
is encountered as the mining operation proceeds;
    (2) Where a person obtains a permit under the provisions of Sec. 
785.14; or
    (3) To the extent that a person obtains a permit incorporating a 
variance under Sec. 785.16.
    (b) Any application for a permit for surface coal mining and 
reclamation operations covered by this section shall contain sufficient 
information to establish that the operations will be conducted in 
accordance with the requirements of Sec. 816.107 or Sec. 817.107 of 
this chapter.
    (c) No permit shall be issued for any operations covered by this 
section, unless the regulatory authority finds, in writing, that in 
addition to meeting all other requirements of this subchapter, the 
operation will be conducted in accordance with the requirements of Sec. 
816.107 or Sec. 817.107 of this chapter.

[44 FR 15370, Mar. 13, 1979, as amended at 51 FR 9006, Mar. 17, 1986]



Sec. 785.16  Permits incorporating variances from approximate original contour 

restoration requirements for steep slope mining.

    (a) The regulatory authority may issue a permit for non-mountaintop 
removal, steep slope, surface coal mining and reclamation operations 
which includes a variance from the requirements to restore the disturbed 
areas to their approximate original contour that are contained in 
Sec. Sec. 816.102, 816.104, 816.105, and 816.107, or Sec. Sec. 817.102 
and 817.107 of this chapter. The permit may contain such a variance only 
if the regulatory authority finds, in writing, that the applicant has 
demonstrated, on the basis of a complete application, that the following 
requirments are met:
    (1) After reclamation, the lands to be affected by the variance 
within the permit area will be suitable for an industrial, commercial, 
residential, or public postmining land use (including recreational 
facilities).
    (2) The requirements of Sec. 816.133 or Sec. 817.133 of this 
chapter will be met.
    (3) The watershed of lands within the proposed permit and adjacent 
areas will be improved by the operations when compared with the 
condition of the watershed before mining or with its condition if the 
approximate original

[[Page 270]]

contour were to be restored. The watershed will be deemed improved only 
if--
    (i) The amount of total suspended solids or other pollutants 
discharged to ground or surface water from the permit area will be 
reduced, so as to improve the public or private uses or the ecology of 
such water, or flood hazards within the watershed containing the permit 
area will be reduced by reduction of the peak flow discharge from 
precipitation events or thaws;
    (ii) The total volume of flow from the proposed permit area, during 
every season of the year, will not vary in a way that adversely affects 
the ecology of any surface water or any existing or planned use of 
surface or ground water; and
    (iii) The appropriate State environmental agency approves the plan.
    (4) The owner of the surface of the lands within the permit area has 
knowingly requested, in writing, as part of the application, that a 
variance be granted. The request shall be made separately from any 
surface owner consent given for the operations under Sec. 778.15 of 
this chapter and shall show an understanding that the variance could not 
be granted without the surface owner's request.
    (b) If a variance is granted under this section--
    (1) The requirements of Sec. 816.133(d) or Sec. 817.133(d) of this 
chapter shall be included as a specific condition of the permit; and
    (2) The permit shall be specifically marked as containing a variance 
from approximate original contour.
    (c) A permit incorporating a variance under this section shall be 
reviewed by the regulatory authority at least every 30 months following 
the issuance of the permit to evaluate the progress and development of 
the surface coal mining and reclamation operations to establish that the 
operator is proceeding in accordance with the terms of the variance.
    (d) If the permittee demonstrates to the regulatory authority that 
the operations have been, and continue to be, conducted in compliance 
with the terms and conditions of the permit, the requirements of the 
Act, this chapter, and the regulatory program, the review specified in 
paragraph (c) of this section need not be held.
    (e) The terms and conditions of a permit incorporating a variance 
under this section may be modified at any time by the regulatory 
authority, if it determines that more stringent measures are necessary 
to ensure that the operations involved are conducted in compliance with 
the requirements of the Act, this chapter, and the regulatory program.
    (f) The regulatory authority may grant variances in accordance with 
this section only if it has promulgated specific rules to govern the 
granting of variances in accordance with the provisions of this section 
and any necessary, more stringent requirements.

[48 FR 39904, Sept. 1, 1983, as amended at 48 FR 44780, Sept. 30, 1983; 
56 FR 65635, Dec. 17, 1991]



Sec. 785.17  Prime farmland.

    (a) This section applies to any person who conducts or intends to 
conduct surface coal mining and reclamation operations on prime 
farmlands historically used for cropland. This section does not apply 
to:
    (1) Lands on which surface coal mining and reclamation operations 
are conducted pursuant to any permit issued prior to August 3, 1977; or
    (2) Lands on which surface coal mining and reclamation operations 
are conducted pursuant to any renewal or revision of a permit issued 
prior to August 3, 1977; or
    (3) Lands included in any existing surface coal mining operations 
for which a permit was issued for all or any part thereof prior to 
August 3, 1977, provided that:
    (i) Such lands are part of a single continuous surface coal mining 
operation begun under a permit issued before August 3, 1977; and
    (ii) The permittee had a legal right to mine the lands prior to 
August 3, 1977, through ownership, contract, or lease but not including 
an option to buy, lease, or contract; and
    (iii) The lands contain part of a continuous recoverable coal seam 
that was being mined in a single continuous mining pit (or multiple pits 
if the lands are proven to be part of a single continuous surface coal 
mining operation)

[[Page 271]]

begun under a permit issued prior to August 3, 1977.
    (4) For purposes of this section:
    (i) ``Renewal'' of a permit shall mean a decision by the regulatory 
authority to extend the time by which the permittee may complete mining 
within the boundaries of the original permit, and ``revision'' of the 
permit shall mean a decision by the regulatory authority to allow 
changes in the method of mining operations within the original permit 
area, or the decision of the regulatory authority to allow incidental 
boundary changes to the original permit;
    (ii) A pit shall be deemed to be a single continuous mining pit even 
if portions of the pit are crossed by a road, pipeline, railroad, or 
powerline or similar crossing;
    (iii) A single continuous surface coal mining operation is presumed 
to consist only of a single continuous mining pit under a permit issued 
prior to August 3, 1977, but may include non-contiguous parcels if the 
operator can prove by clear and convincing evidence that, prior to 
August 3, 1977, the non-contiguous parcels were part of a single 
permitted operation. For the purposes of this paragraph, clear and 
convincing evidence includes, but is not limited to, contracts, leases, 
deeds or other properly executed legal documents (not including options) 
that specifically treat physically separate parcels as one surface coal 
mining operation.
    (b) Application contents--Reconnaissance inspection. (1) All permit 
applications, whether or not prime farmland is present, shall include 
the results of a reconnaissance inspection of the proposed permit area 
to indicate whether prime farmland exists. The regulatory authority in 
consultation with the U.S. Soil Conservation Service shall determine the 
nature and extent of the required reconnaissance inspection.
    (2) If the reconnaissance inspection establishes that no land within 
the proposed permit area is prime farmland historically used for 
cropland, the applicant shall submit a statement that no prime farmland 
is present. The statement shall identify the basis upon which such a 
conclusion was reached.
    (3) If the reconnaissance inspection indicates that land within the 
proposed permit area may be prime farmland historically used for 
cropland, the applicant shall determine if a soil survey exists for 
those lands and whether soil mapping units in the permit area have been 
designated as prime farmland. If no soil survey exists, the applicant 
shall have a soil survey made of the lands within the permit area which 
the reconnaissance inspection indicates could be prime farmland. Soil 
surveys of the detail used by the U.S. Soil Conservation Service for 
operational conservation planning shall be used to identify and locate 
prime farmland soils.
    (i) If the soil survey indicates that no prime farmland soils are 
present within the proposed permit area, paragraph (b)(2) of this 
section shall apply.
    (ii) If the soil survey indicates that prime farmland soils are 
present within the proposed permit area, paragraph (c) of this section 
shall apply.
    (c) Application contents--Prime farmland. All permit applications 
for areas in which prime farmland has been identified within the 
proposed permit area shall include the following:
    (1) A soil survey of the permit area according to the standards of 
the National Cooperative Soil Survey and in accordance with the 
procedures set forth in U.S. Department of Agriculture Handbooks 436 
``Soil Taxonomy'' (U.S. Soil Conservation Service, 1975) as amended on 
March 22, 1982 and October 5, 1982, and 18, ``Soil Survey Manual'' (U.S. 
Soil Conservation Service, 1951), as amended on December 18, 1979, May 
7, 1980, May 9, 1980, September 11, 1980, June 9, 1981, June 29, 1981, 
November 16, 1982. The U.S. Soil Conservation Service establishes the 
standards of the National Cooperative Soil Survey and maintains a 
National Soils Handbook which gives current acceptable procedures for 
conducting soil surveys. This National Soils Handbook is available for 
review at area and State SCS offices.
    (i) U.S. Department of Agriculture Handbooks 436 and 18 are 
incorporated by reference as they exist on the date of adoption of this 
section. Notices of changes made to these publications will be 
periodically published by OSM

[[Page 272]]

in the Federal Register. The handbooks are on file and available for 
inspection at the OSM Central Office, U.S. Department of the Interior, 
1951 Constitution Avenue, NW., Washington, DC, at each OSM Technical 
Center and Field Office, and at the central office of the applicable 
State regulatory authority, if any. Copies of these documents are also 
available from the Superintendent of Documents, U.S. Government Printing 
Office, Washington, DC 20402, Stock Nos. 001-000-02597-0 and 001-000-
00688-6, respectively. In addition, these documents are available for 
inspection at the national, State, and area offices of the Soil 
Conservation Service, U.S. Department of Agriculture, or at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html. Incorporation by reference provisions 
were approved by the Director of the Federal Register on June 29, 1981.
    (ii) The soil survey shall include a description of soil mapping 
units and a representative soil profile as determined by the U.S. Soil 
Conservation Service, including, but not limited to, soil-horizon 
depths, pH, and the range of soil densities for each prime farmland soil 
unit within the permit area. Other representative soil-profile 
descriptions from the locality, prepared according to the standards of 
the National Cooperative Soil Survey, may be used if their use is 
approved by the State Conservationist, U.S. Soil Conservation Service. 
The regulatory authority may request the operator to provide information 
on other physical and chemical soil properties as needed to make a 
determination that the operator has the technological capability to 
restore the prime farmland within the permit area to the soil-
reconstruction standards of part 823 of this chapter.
    (2) A plan for soil reconstruction, replacement, and stabilization 
for the purpose of establishing the technological capability of the mine 
operator to comply with the requirements of part 823 of this chapter.
    (3) Scientific data, such as agricultural-school studies, for areas 
with comparable soils, climate, and management that demonstrate that the 
proposed method of reclamation, including the use of soil mixtures or 
substitutes, if any, will achieve, within a reasonable time, levels of 
yield equivalent to, or higher than, those of nonmined prime farmland in 
the surrounding area.
    (4) The productivity prior to mining, including the average yield of 
food, fiber, forage, or wood products obtained under a high level of 
management.
    (d) Consultation with Secretary of Agriculture. (1) The Secretary of 
Agriculture has responsibilities with respect to prime farmland soils 
and has assigned the prime farmland responsibilities arising under the 
Act to the Chief of the U.S. Soil Conservation Service. The U.S. Soil 
Conservation Service shall carry out consultation and review through the 
State Conservationist located in each State.
    (2) The State Conservationist shall provide to the regulatory 
authority a list of prime farmland soils, their location, physical and 
chemical characteristics, crop yields, and associated data necessary to 
support adequate prime farmland soil descriptions.
    (3) The State Conservationist shall assist the regulatory authority 
in describing the nature and extent of the reconnaissance inspection 
required in paragraph (b)(1) of this section.
    (4) Before any permit is issued for areas that include prime 
farmland, the regulatory authority shall consult with the State 
Conservationist. The State Conservationist shall provide for the review 
of, and comment on, the proposed method of soil reconstruction in the 
plan submitted under paragraph (c) of this section. If the State 
Conservationist considers those methods to be inadequate, he or she 
shall suggest revisions to the regulatory authority which result in more 
complete and adequate reconstruction.
    (e) Issuance of permit. A permit for the mining and reclamation of 
prime farmland may be granted by the regulatory authority, if it first 
finds, in writing, upon the basis of a complete application, that--

[[Page 273]]

    (1) The approved proposed postmining land use of these prime 
farmlands will be cropland;
    (2) The permit incorporates as specific conditions the contents of 
the plan submitted under paragraph (c) of this section, after 
consideration of any revisions to that plan suggested by the State 
Conservationist under paragraph (d)(4) of this section;
    (3) The applicant has the technological capability to restore the 
prime farmland, within a reasonable time, to equivalent or higher levels 
of yield as non-mined prime farmland in the surrounding area under 
equivalent levels of management; and
    (4) The proposed operations will be conducted in compliance with the 
requirements of 30 CFR part 823 and other environmental protection 
performance and reclamation standards for mining and reclamation of 
prime farmland of the regulatory program.
    (5) The aggregate total prime farmland acreage shall not be 
decreased from that which existed prior to mining. Water bodies, if any, 
to be constructed during mining and reclamation operations must be 
located within the post-reclamation non-prime farmland portions of the 
permit area. The creation of any such water bodies must be approved by 
the regulatory authority and the consent of all affected property owners 
within the permit area must be obtained.

[44 FR 15370, Mar. 13, 1979, as amended at 46 FR 47722, Sept. 29, 1981; 
48 FR 21462, May 12, 1983; 53 FR 40839, Oct. 18, 1988]



Sec. 785.18  Variances for delay in contemporaneous reclamation requirement in 

combined surface and underground mining activities.

    (a) Scope. This section shall apply to any person or persons 
conducting or intending to conduct combined surface and underground 
mining activities where a variance is requested from the contemporaneous 
reclamation requirements of Sec. 816.100 of this chapter.
    (b) Application contents for variances. Any person desiring a 
variance under this section shall file with the regulatory authority 
complete applications for both the surface mining activities and 
underground mining activities which are to be combined. The reclamation 
and operation plans for these permits shall contain appropriate 
narratives, maps, and plans, which--
    (1) Show why the proposed underground mining activities are 
necessary or desirable to assure maximum practical recovery of the coal;
    (2) Show how multiple future disturbances of surface lands or waters 
will be avoided;
    (3) Identify the specific surface areas for which a variance is 
sought and the sections of the Act, this chapter, and the regulatory 
program from which a variance is being sought;
    (4) Show how the activities will comply with Sec. 816.79 of this 
chapter and other applicable requirements of the regulatory program;
    (5) Show why the variance sought is necessary for the implementation 
of the proposed underground mining activities;
    (6) Provide an assessment of the adverse environmental consequences 
and damages, if any, that will result if the reclamation of surface 
mining activities is delayed; and
    (7) Show how offsite storage of spoil will be conducted to comply 
with the requirements of the Act, Sec. Sec. 816.71 through 816.74 of 
this chapter, and the regulatory program.
    (c) Issuance of permit. A permit incorporating a variance under this 
section may be issued by the regulatory authority if it first finds, in 
writing, upon the basis of a complete application filed in accordance 
with this section, that--
    (1) The applicant has presented, as part of the permit application, 
specific, feasible plans for the proposed underground mining activities;
    (2) The proposed underground mining activities are necessary or 
desirable to assure maximum practical recovery of the mineral resource 
and will avoid multiple future disturbances of surface land or waters;
    (3) The applicant has satisfactorily demonstrated that the 
applications for the surface mining activities and underground mining 
activities conform to the requirements of the regulatory program and 
that all other permits necessary for the underground mining activities 
have been issued by the appropriate authority;

[[Page 274]]

    (4) The surface area of surface mining activities proposed for the 
variance has been shown by the applicant to be necessary for 
implementing the proposed underground mining activities;
    (5) No substantial adverse environmental damage, either onsite or 
offsite, will result from the delay in completion of reclamation 
otherwise required by section 515(b)(16) of the Act, part 816 of this 
chapter, and the regulatory program;
    (6) The operations will, insofar as a variance is authorized, be 
conducted in compliance with the requirements of Sec. 816.79 of this 
chapter and the regulatory program;
    (7) Provisions for offsite storage of spoil will comply with the 
requirements of section 515(b)(22) of the Act, Sec. Sec. 816.71 through 
816.74 of this chapter, and the regulatory program;
    (8) Liability under the performance bond required to be filed by the 
applicant with the regulatory authority pursuant to subchapter J of this 
chapter and the regulatory program will be for the duration of the 
underground mining activities and until all requirements of subchapter J 
and the regulatory program have been complied with; and
    (9) The permit for the surface mining activities contains specific 
conditions--
    (i) Delineating the particular surface areas for which a variance is 
authorized;
    (ii) Identifying the applicable provisions of section 515(b) of the 
Act, part 816 of this chapter, and the regulatory program; and
    (iii) Providing a detailed schedule for compliance with the 
provisions of this section.
    (d) Review of permits containing variances. Variances granted by 
permits issued under this section shall be reviewed by the regulatory 
authority no later than 3 years from the dates of issuance of the permit 
and any permit renewals.

[48 FR 24651, June 1, 1983]



Sec. 785.19  Surface coal mining and reclamation operations on areas or 

adjacent to areas including alluvial valley floors in the arid and semiarid 

areas west of the 100th meridian.

    (a) Alluvial valley floor determination. (1) Permit applicants who 
propose to conduct surface coal mining and reclamation operations within 
a valley holding a stream or in a location where the permit area or 
adjacent area includes any stream, in the arid and semiarid regions of 
the United States, as an initial step in the permit process, may request 
the regulatory authority to make an alluvial valley floor determination 
with respect to that valley floor. The applicant shall demonstrate and 
the regulatory authority shall determine, based on either available data 
or field studies submitted by the applicant, or a combination of 
available data and field studies, the presence or absence of an alluvial 
valley floor. Studies shall include sufficiently detailed geologic, 
hydrologic, land use, soils, and vegetation data and analysis to 
demonstrate the probable existence of an alluvial valley floor in the 
area. The regulatory authority may require additional data collection 
and analysis or other supporting documents, maps, and illustrations in 
order to make the determination.
    (2) The regulatory authority shall make a written determination as 
to the extent of any alluvial valley floors within the area. The 
regulatory authority shall determine that an alluvial valley floor 
exists if it finds that--
    (i) Unconsolidated streamlaid deposits holding streams are present; 
and
    (ii) There is sufficient water available to support agricultural 
activities as evidenced by--
    (A) The existence of current flood irrigation in the area in 
question;
    (B) The capability of an area to be flood irrigated, based on 
evaluations of typical regional agricultural practices, historical flood 
irrigation, streamflow, water quality, soils, and topography; or
    (C) Subirrigation of the lands in question derived from the ground-
water system of the valley floor.
    (3) If the regulatory authority determines in writing that an 
alluvial valley does not exist pursuant to paragraph

[[Page 275]]

(a)(2) of this section, no further consideration of this section is 
required.
    (b) Applicability of statutory exclusions. (1) If an alluvial valley 
floor is identified pursuant to paragraph (a)(2) of this section and the 
proposed surface coal mining operation may affect this alluvial valley 
floor or waters that supply the alluvial valley floor, the applicant may 
request the regulatory authority, as a preliminary step in the permit 
application process, to separately determine the applicability of the 
statutory exclusions set forth in paragraph (b)(2) of this section. The 
regulatory authority may make such a determination based on the 
available data, may require additional data collection and analysis in 
order to make the determination, or may require the applicant to submit 
a complete permit application and not make the determination until after 
the complete application is evaluated.
    (2) An applicant need not submit the information required in 
paragraphs (d)(2) (ii) and (iii) of this section and a regulatory 
authority is not required to make the findings of paragraphs (e)(2) (i) 
and (ii) of this section when the regulatory authority determines that 
one of the following circumstances, heretofore called statutory 
exclusions, exist:
    (i) The premining land use is undeveloped rangeland which is not 
significant to farming;
    (ii) Any farming on the alluvial valley floor that would be affected 
by the surface coal mining operation is of such small acreage as to be 
of negligible impact on the farm's agricultural production. Negligible 
impact of the proposed operation on farming will be based on the 
relative importance of the affected farmland areas of the alluvial 
valley floor area to the farm's total agricultural production over the 
life of the mine; or
    (iii) The circumstances set forth in Sec. 822.12(b) (3) or (4) of 
this chapter exist.
    (3) For the purpose of this section, a farm is one or more land 
units on which farming is conducted. A farm is generally considered to 
be the combination of land units with acreage and boundaries in 
existence prior to August 3, 1977, or if established after August 3, 
1977, with those boundaries based on enhancement of the farm's 
agricultural productivity and not related to surface coal operations.
    (c) Summary denial. If the regulatory authority determines that the 
statutory exclusions are not applicable and that any of the required 
findings of paragraph (e)(2) of this section cannot be made, the 
regulatory authority may, at the request of the applicant:
    (1) Determine that mining is precluded on the proposed permit area 
and deny the permit without the applicant filing any additional 
information required by this section; or
    (2) Prohibit surface coal mining and reclamation operations in all 
or parts of the area to be affected by mining.
    (d) Application contents for operations affecting designated 
alluvial valley floors. (1) If land within the permit area or adjacent 
area is identified as an alluvial valley floor and the proposed surface 
coal mining operation may affect an alluvial valley floor or waters 
supplied to an alluvial valley floor, the applicant shall submit a 
complete application for the proposed surface coal mining and 
reclamation operations to be used by the regulatory authority together 
with other relevant information as a basis for approval or denial of the 
permit. If an exclusion of paragraph (b)(2) of this section applies, 
then the applicant need not submit the information required in 
paragraphs (d)(2) (ii) and (iii) of this section.
    (2) The complete application shall include detailed surveys and 
baseline data required by the regulatory authority for a determination 
of--
    (i) The essential hydrologic functions of the alluvial valley floor 
which might be affected by the mining and reclamation process. The 
information required by this subparagraph shall evaluate those factors 
which contribute to the collecting, storing, regulating and making the 
natural flow of water available for agricultural activities on the 
alluvial valley floor and shall include, but are not limited to:
    (A) Factors contributing to the function of collecting water, such 
as amount, rate and frequency of rainfall and runoff, surface roughness, 
slope and vegetative cover, infiltration, and evapotranspiration, 
relief, slope and density of drainage channels;

[[Page 276]]

    (B) Factors contributing to the function of storing water, such as 
permeability, infiltration, porosity, depth and direction of ground 
water flow, and water holding capacity;
    (C) Factors contributing to the function of regulating the flow of 
surface and ground water, such as the longitudinal profile and slope of 
the valley and channels, the sinuosity and cross-sections of the 
channels, interchange of water between streams and associated alluvial 
and bedrock aquifers, and rates and amount of water supplied by these 
aquifers; and
    (D) Factors contributing to water availability, such as the presence 
of flood plains and terraces suitable for agricultural activities.
    (ii) Whether the operation will avoid during mining and reclamation 
the interruption, discontinuance, or preclusion of farming on the 
alluvial valley floor;
    (iii) Whether the operation will cause material damage to the 
quantity or quality of surface or ground waters supplied to the alluvial 
valley floor;
    (iv) Whether the reclamation plan is in compliance with requirements 
of the Act, this chapter, and regulatory program; and
    (v) Whether the proposed monitoring system will provide sufficient 
information to measure compliance with part 822 of this chapter during 
and after mining and reclamation operations.
    (e) Findings. (1) The findings of paragraphs (e)(2) (i) and (ii) of 
this section are not required with regard to alluvial valley floors to 
which are applicable any of the exclusions of paragraph (b)(2) of this 
section.
    (2) No permit or permit revision application for surface coal mining 
and reclamation operations on lands located west of the 100th meridian 
west longitude shall be approved by the regulatory authority unless the 
application demonstrates and the regulatory authority finds in writing, 
on the basis of information set forth in the application, that--
    (i) The proposed operations will not interrupt, discontinue, or 
preclude farming on an alluvial valley floor;
    (ii) The proposed operations will not materially damage the quantity 
or quality of water in surface and underground water systems that supply 
alluvial valley floors; and
    (iii) The proposed operations will comply with part 822 of this 
chapter and the other applicable requirements of the Act and the 
regulatory program.

[48 FR 29820, June 28, 1983, as amended at 54 FR 9735, Mar. 7, 1989]



Sec. 785.20  Augering.

    (a) This section applies to any person who conducts or intends to 
conduct surface coal mining and reclamation operations utilizing 
augering operations.
    (b) Any application for a permit for operations covered by this 
section shall contain, in the mining and reclamation plan, a description 
of the augering methods to be used and the measures to be used to comply 
with 30 CFR part 819.
    (c) No permit shall be issued for any operations covered by this 
section unless the regulatory authority finds, in writing, that in 
addition to meeting all other applicable requirements of this 
subchapter, the operation will be conducted in compliance with 30 CFR 
part 819.



Sec. 785.21  Coal preparation plants not located within the permit area of a 

mine.

    (a) This section applies to any person who operates or intends to 
operate a coal preparation plant in connection with a coal mine but 
outside the permit area for a specific mine. Any person who operates 
such a preparation plant shall obtain a permit from the regulatory 
authority in accordance with the requirements of this section
    (b) Any application for a permit for operations covered by this 
section shall contain an operation and reclamation plan which specifies 
plans, including descriptions, maps, and cross sections, of the 
construction, operation, maintenance, and removal of the preparation 
plant and support facilities operated incident thereto or resulting 
therefrom. The plan shall demonstrate that those operations will be 
conducted in compliance with part 827 of this chapter.
    (c) No permit shall be issued for any operation covered by this 
section, unless the regulatory authority finds in

[[Page 277]]

writing that, in addition to meeting all other applicable requirements 
of this subchapter, the operations will be conducted in compliance with 
the requirements of part 827 of this chapter.
    (d)(1) Except as provided in paragraph (d)(2) of this section, any 
person who operates a coal preparation plant beyond May 10, 1986, that 
was not subject to this chapter before July 6, 1984, shall have applied 
for a permit no later than November 11, 1985.
    (2)(i) State programs that have a statutory or regulatory bar 
precluding issuance of permits to facilities covered by paragraph (d)(1) 
of this section shall notify OSMRE not later than November 7, 1985, and 
shall establish a schedule for actions necessary to allow the permitting 
of such facilities as soon as practicable. Not later than December 9, 
1985, this schedule shall be submitted to OSMRE for approval.
    (ii) Any person who operates a coal preparation plant that was not 
subject to this chapter before July 6, 1984, in a state which submits a 
schedule in accordance with paragraph (d)(2)(i) of this section shall 
apply for a permit in accordance with the schedule approved by OSMRE.
    (e) Notwithstanding Sec. 773.4 of this chapter and except as 
prohibited by Sec. 761.11 of this chapter, any person operating a coal 
preparation plant that was not subject to this chapter before July 6, 
1984, may continue to operate without a permit until May 10, 1986, and 
may continue to operate beyond that date if:
    (1) A permit application has been timely filed under paragraph 
(d)(1) of this section or under a State imposed schedule specified in 
paragraph (d)(2) of this section,
    (2) The regulatory authority has yet to either issue or deny the 
permit, and
    (3) The person complies with the applicable performance standards of 
Sec. 827.13 of this chapter.

[48 FR 20401, May 5, 1983, as amended at 52 FR 17730, May 11, 1987; 53 
FR 47391, Nov. 22, 1988, as amended at 65 FR 79669, Dec. 19, 2000]



Sec. 785.22  In situ processing activities.

    (a) This section applies to any person who conducts or intends to 
conduct surface coal mining and reclamation operations utilizing in situ 
processing activities.
    (b) Any application for a permit for operations covered by this 
section shall be made according to all requirements of this subchapter 
applicable to underground mining activities. In addition, the mining and 
reclamation operations plan for operations involving in situ processing 
activities shall contain information establishing how those operations 
will be conducted in compliance with the requirements of 30 CFR part 
828, including--
    (1) Delineation of proposed holes and wells and production zone for 
approval of the regulatory authority;
    (2) Specifications of drill holes and casings proposed to be used;
    (3) A plan for treatment, confinement or disposal of all acid-
forming, toxic-forming or radioactive gases, solids, or liquids 
constituting a fire, health, safety or environmental hazard caused by 
the mining and recovery process; and
    (4) Plans for monitoring surface and ground water and air quality, 
as required by the regulatory authority.
    (c) No permit shall be issued for operations covered by this 
section, unless the regulatory authority first finds, in writing, upon 
the basis of a complete application made in accordance with paragraph 
(b) of this section, that the operation will be conducted in compliance 
with all requirements of this subchapter relating to underground mining 
activities, and 30 CFR parts 817 and 828.



Sec. 785.25  Lands eligible for remining.

    (a) This section contains permitting requirements to implement Sec. 
773.13. Any person who submits a permit application to conduct a surface 
coal mining operation on lands eligible for remining must comply with 
this section.
    (b) Any application for a permit under this section shall be made 
according to all requirements of this subchapter applicable to surface 
coal mining and reclamation operations. In addition, the application 
shall--

[[Page 278]]

    (1) To the extent not otherwise addressed in the permit application, 
identify potential environmental and safety problems related to prior 
mining activity at the site and that could be reasonably anticipated to 
occur. This identification shall be based on a due diligence 
investigation which shall include visual observations at the site, a 
record review of past mining at the site, and environmental sampling 
tailored to current site conditions.
    (2) With regard to potential environmental and safety problems 
referred to in paragraph (b)(1) of this section, describe the mitigative 
measures that will be taken to ensure that the applicable reclamation 
requirements of the regulatory program can be met.

[60 FR 58491, Nov. 27, 1995, as amended at 65 FR 79669, Dec. 19, 2000; 
73 FR 67630, Nov. 14, 2008]

[[Page 279]]



                 SUBCHAPTER H_SMALL OPERATOR ASSISTANCE



PART 795_PERMANENT REGULATORY PROGRAM_SMALL OPERATOR ASSISTANCE PROGRAM--Table 

of Contents



Sec.
795.1 Scope and purpose.
795.3 Definitions.
795.4 Information collection.
795.5 Grant application procedures.
795.6 Eligibility for assistance.
795.7 Filing for assistance.
795.8 Application approval and notice.
795.9 Program services and data requirements.
795.10 Qualified laboratories.
795.11 Assistance funding.
795.12 Applicant liability.

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

    Source: 48 FR 2272, Jan. 18, 1983, unless otherwise noted.



Sec. 795.1  Scope and purpose.

    This part comprises the Small Operator Assistance Program (SOAP) and 
establishes the procedures for providing assistance to eligible 
operators by the program administrator. It is an elective means for a 
regulatory authority to satisfy the requirements of section 507(c) of 
the Act. The purpose of the program is to provide for eligible operators 
a determination of probable hydrologic consequences and a statement of 
results of test borings or core samplings which are required components 
of the permit application under subchapter G of this chapter.



Sec. 795.3  Definitions.

    As used in this part--
    Program administrator means the State of Federal official within the 
regulatory authority who has the authority and responsibility for 
overall management of the Small Operator Assistance Program; and
    Qualified laboratory means a designated public agency, private firm, 
institution, or analytical laboratory that can provide the required 
determination of probable hydrologic consequences or statement of 
results of test borings or core samplings or other services as specified 
at Sec. 795.9 under the Small Operator Assistance Program and that 
meets the standards of Sec. 795.10.

[48 FR 2272, Jan. 18, 1983, as amended at 59 FR 28167, May 31, 1994]



Sec. 795.4  Information collection.

    The collections of information contained in part 795 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0061. The information will be 
used to determine if the applicants meet the requirements of the Small 
Operator Assistance Program. Response is required to obtain a benefit in 
accordance with Public Law 95-87. Public reporting burden for this 
information is estimated to average 24.2 hours per response, including 
the time for reviewing instructions, searching existing data sources, 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information. Send comments regarding this burden 
estimate or any other aspect of this collection of information, 
including suggestions for reducing the burden, to the Office of Surface 
Mining Reclamation and Enforcement, Information Collection Clearance 
Officer (MS-202), 1951 Constitution Avenue, NW., Washington, DC 20240.

[59 FR 28167, May 31, 1994, as amended at 75 FR 60275, Sept. 29, 2010]



Sec. 795.5  Grant application procedures.

    A State intending to administer a Small Operator Assistance Program 
under a grant from the Office of Surface Mining may submit a grant 
application to OSM for funding of the program under the procedures of 
part 735 of this chapter.



Sec. 795.6  Eligibility for assistance.

    (a) An applicant is eligible for assistance if he or she--
    (1) Intends to apply for a permit pursuant to the Act;
    (2) Establishes that his or her probable total attributed annual 
production from all locations on which the operator is issued the 
surface coal mining and reclamation permit will not exceed

[[Page 280]]

300,000 tons. Production from the following operations shall be 
attributed to the applicant:
    (i) The pro rata share, based upon percentage of ownership of 
applicant, of coal produced by operations in which the applicant owns 
more than a 10 percent interest;
    (ii) The pro rata share, based upon percentage of ownership of 
applicant, of coal produced in other operations by persons who own more 
than 10 percent of the applicant's operation;
    (iii) All coal produced by operations owned by persons who directly 
or indirectly control the applicant by reason of direction of the 
management;
    (iv) All coal produced by operations owned by members of the 
applicant's family and the applicants' relatives, unless it is 
established that there is no direct or indirect business relationship 
between or among them.
    (3) Is not restricted in any manner from receiving a permit under 
the permanent regulatory program; and
    (4) Does not organize or reorganize his or her company solely for 
the purpose of obtaining assistance under the SOAP.
    (b) A State may provide alternate criteria or procedures for 
determining the eligibility of an operator for assistance under the 
program, provided that such criteria may not be used as a basis for 
grant requests in excess of that which would be authorized under the 
criteria of paragraph (a) of this section.

[48 FR 2272, Jan. 18, 1983, as amended at 59 FR 28168, May 31, 1994]



Sec. 795.7  Filing for assistance.

    Each application for assistance shall include the following 
information:
    (a) A statement of the operator's intent to file a permit 
application.
    (b) The names and addresses of--
    (1) The permit applicant; and
    (2) The operator if different from the applicant.
    (c) A schedule of the estimated total production of coal from the 
proposed permit area and all other locations from which production is 
attributed to the applicant under Sec. 795.6 The schedule shall include 
for each location--
    (1) The operator or company name under which coal is or will be 
mined;
    (2) The permit number and Mine Safety and Health Administration 
(MSHA) number;
    (3) The actual coal production during the year preceding the year 
for which the applicant applies for assistance and production that may 
be attributed to the applicant under Sec. 795.6; and
    (4) The estimated coal production and any production which may be 
attributed to the applicant for each year of the proposed permit.
    (d) A description of--
    (1) The proposed method of coal mining;
    (2) The anticipated starting and termination dates of mining 
operations;
    (3) The number of acres of land to be affected by the proposed 
mining operation; and
    (4) A general statement on the probable depth and thickness of the 
coal resource including a statement of reserves in the permit area and 
the method by which they were calculated.
    (e) A U.S. Geological Survey topographic map at a scale of 1:24,000 
or larger or other topographic map of equivalent detail which clearly 
shows--
    (1) The area of land to be affected;
    (2) The location of any existing or proposed test borings; and
    (3) The location and extent of known workings of any underground 
mines.
    (f) Copies of documents which show that--
    (1) The applicant has a legal right to enter and commence mining 
within the permit area; and
    (2) A legal right of entry has been obtained for the program 
administrator and laboratory personnel to inspect the lands to be mined 
and adjacent areas to collect environmental data or to install necessary 
instruments.



Sec. 795.8  Application approval and notice.

    (a) If the program administrator finds the applicant eligible, he or 
she shall inform the applicant in writing that the application is 
approved.
    (b) If the program administrator finds the applicant ineligible, he 
or she shall inform the applicant in writing that the application is 
denied and shall state the reasons for denial.

[[Page 281]]



Sec. 795.9  Program services and data requirements.

    (a) To the extent possible with available funds, the program 
administrator shall select and pay a qualified laboratory to make the 
determination and statement and provide other services referenced in 
paragraph (b) of this section for eligible operators who request 
assistance.
    (b) The program administrator shall determine the data needed for 
each applicant or group of applicants. Data collected and the results 
provided to the program administrator shall be sufficient to satisfy the 
requirements for:
    (1) The determination of the probable hydrologic consequences of the 
surface mining and reclamation operation in the proposed permit area and 
adjacent areas, including the engineering analyses and designs necessary 
for the determination in accordance with Sec. Sec. 780.21(f), 
784.14(e), and any other applicable provisions of this chapter;
    (2) The drilling and statement of the results of test borings or 
core samplings for the proposed permit area in accordance with 
Sec. Sec. 780.22(b) and 784.22(b) and any other applicable provisions 
of this chapter;
    (3) The development of cross-section maps and plans required by 
Sec. Sec. 779.25 and 783.25;
    (4) The collection of archaeological and historic information and 
related plans required by Sec. Sec. 779.12(b) and 783.12(b) and 
Sec. Sec. 780.31 and 784.17 and any other archaeological and historic 
information required by the regulatory authority;
    (5) Pre-blast surveys required by Sec. 780.13; and
    (6) The collection of site-specific resources information, the 
production of protection and enhancement plans for fish and wildlife 
habitats required by Sec. Sec. 780.16 and 784.21, and information and 
plans for any other environmental values required by the regulatory 
authority under the act.
    (c) Data collection and analysis may proceed concurrently with the 
development of mining and reclamation plans by the operator.
    (d) Data collected under this program shall be made publicly 
available in accordance with Sec. 773.6(d) of this chapter. The program 
administrator shall develop procedures for interstate coordination and 
exchange of data.

[48 FR 2272, Jan. 18, 1983, as amended at 48 FR 44780, Sept. 30, 1983; 
59 FR 28168, May 31, 1994, as amwended at 65 FR 79670, Dec. 19, 2000]



Sec. 795.10  Qualified laboratories.

    (a) Basic qualifications. To be designated a qualified laboratory, a 
firm shall demonstrate that it--
    (1) Is staffed with experienced, professional or technical personnel 
in the fields applicable to the work to be performed;
    (2) Has adequate space for material preparation and cleaning and 
sterilizing equipment and has stationary equipment, storage, and space 
to accommodate workloads during peak periods;
    (3) Meets applicable Federal or State safety and health 
requirements;
    (4) Has analytical, monitoring and measuring equipment capable of 
meeting applicable standards; and
    (5) Has the capability of collecting necessary field samples and 
making hydrologic field measurements and analytical laboratory 
determinations by acceptable hydrologic, geologic, or analytical methods 
in accordance with the requirements of Sec. Sec. 780.21, 780.22, 784.14 
and 784.22 and any other applicable provisions of this chapter. Other 
appropriate methods or guidelines for data acquisition may be approved 
by the program administrator.
    (6) Has the capability of performing services for either the 
determination or statement referenced in Sec. 795.9(b).
    (b) Subcontractors. Subcontractors, may be used to provide some of 
the required services provided their use is identified at the time a 
determination is made that a firm is qualified and they meet 
requirements specified by the program administrator.



Sec. 795.11  Assistance funding.

    (a) Use of funds. Funds specifically authorized for this program 
shall be used to provide the services specified in Sec. 795.9 and shall 
not be used to cover administrative expenses.
    (b) Allocation of funds. The program administrator shall establish a 
formula for allocating funds to provide services for eligible small 
operators if available

[[Page 282]]

funds are less than those required to provide the services pursuant to 
this part.



Sec. 795.12  Applicant liability.

    (a) A coal operator who has received assistance pursuant to Sec. 
795.9 shall reimburse the regulatory authority for the cost of the 
services rendered if:
    (1) The applicant submits false information, fails to submit a 
permit application within 1 year from the date of receipt of the 
approved laboratory report, or fails to mine after obtaining a permit;
    (2) The program administrator finds that the operator's actual and 
attributed annual production of coal for all locations exceeds 300,000 
tons during the 12 months immediately following the date on which the 
operator is issued the surface coal mining and reclamation permit; or
    (3) The permit is sold, transferred, or assigned to another person 
and the transferee's total actual and attributed production exceeds the 
300,000 ton production limit during the 12 months immediately following 
the date on which the permit was originally issued. Under this paragraph 
the applicant and its successor are jointly and severally obligated to 
reimburse the regulatory authority.
    (b) The program administrator may waive the reimbursement obligation 
if he or she finds that the applicant at all times acted in good faith.

[48 FR 2272, Jan. 18, 1983, as amended at 59 FR 28168, May 31, 1994]



                         SUBCHAPTER I [RESERVED]

[[Page 283]]



SUBCHAPTER J_BONDING AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING 

                       AND RECLAMATION OPERATIONS



PART 800_BOND AND INSURANCE REQUIREMENTS FOR SURFACE COAL MINING AND 

RECLAMATION OPERATIONS UNDER REGULATORY PROGRAMS--Table of Contents



Sec.
800.1 Scope and purpose.
800.4 Regulatory authority responsibilities.
800.5 Definitions.
800.10 Information collection.
800.11 Requirement to file a bond.
800.12 Form of the performance bond.
800.13 Period of liability.
800.14 Determination of bond amount.
800.15 Adjustment of amount.
800.16 General terms and conditions of bond.
800.17 Bonding requirements for underground coal mines and long-term 
          coal-related surface facilities and structures.
800.20 Surety bonds.
800.21 Collateral bonds.
800.23 Self-bonding.
800.30 Replacement of bonds.
800.40 Requirement to release performance bonds.
800.50 Forfeiture of bonds.
800.60 Terms and conditions for liability insurance.
800.70 Bonding for anthracite operations in Pennsylvania.

    Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-34.

    Source: 48 FR 32959, July 19, 1983, unless otherwise noted.



Sec. 800.1  Scope and purpose.

    This part sets forth the minimum requirements for filing and 
maintaining bonds and insurance for surface coal mining and reclamation 
operations under regulatory programs in accordance with the Act.



Sec. 800.4  Regulatory authority responsibilities.

    (a) The regulatory authority shall prescribe and furnish forms for 
filing performance bonds.
    (b) The regulatory authority shall prescribe by regulation terms and 
conditions for performance bonds and insurance.
    (c) The regulatory authority shall determine the amount of the bond 
for each area to be bonded, in accordance with Sec. 800.14. The 
regulatory authority shall also adjust the amount as acreage in the 
permit area is revised, or when other relevant conditions change 
according to the requirements of Sec. 800.15.
    (d) The regulatory authority may accept a self-bond if the permittee 
meets the requirements of Sec. 800.23 and any additional requirements 
in the State or Federal program.
    (e) The regulatory authority shall release liability under a bond or 
bonds in accordance with Sec. 800.40.
    (f) If the conditions specified in Sec. 800.50 occur, the 
regulatory authority shall take appropriate action to cause all or part 
of a bond to be forfeited in accordance with procedures of that section.
    (g) The regulatory authority shall require in the permit that 
adequate bond coverage be in effect at all times. Except as provided in 
Sec. 800.16(e)(2), operating without a bond is a violation of a 
condition upon which the permit is issued.



Sec. 800.5  Definitions.

    (a) Surety bond means an indemnity agreement in a sum certain 
payable to the regulatory authority, executed by the permittee as 
principal and which is supported by the performance guarantee of a 
corporation licensed to do business as a surety in the State where the 
operation is located.
    (b) Collateral bond means an indemnity agreement in a sum certain 
executed by the permittee as principal which is supported by the deposit 
with the regulatory authority of one or more of the following:
    (1) A cash account, which shall be the deposit of cash in one or 
more federally-insured or equivalently protected accounts, payable only 
to the regulatory authority upon demand, or the deposit of cash directly 
with the regulatory authority;
    (2) Negotiable bonds of the United States, a State, or a 
municipality, endorsed to the order of, and placed in

[[Page 284]]

the possession of, the regulatory authority;
    (3) Negotiable certificates of deposit, made payable or assigned to 
the regulatory authority and placed in its possession or held by a 
federally-insured bank;
    (4) An irrevocable letter of credit of any bank organized or 
authorized to transact business in the United States, payable only to 
the regulatory authority upon presentation;
    (5) A perfected, first-lien security interest in real property in 
favor of the regulatory authority; or
    (6) Other investment-grade rated securities having a rating of AAA, 
AA, or A or an equivalent rating issued by a nationally recognized 
securities rating service, endorsed to the order of, and placed in the 
possession of, the regulatory authority.
    (c) Self-bond means an indemnity agreement in a sum certain executed 
by the applicant or by the applicant and any corporate guarantor and 
made payable to the regulatory authority, with or without separate 
surety.

[48 FR 32959, July 19, 1983, as amended at 53 FR 997, Jan. 14, 1988]



Sec. 800.10  Information collection.

    The collection of information contained in Sec. Sec. 800.11, 
800.21(c), 800.23(b)(2), 800.23(b)(3), 800.40(a), and 800.60(a) have 
been approved by the Office of Management and Budget under 44 U.S.C. 
3501 et seq. and assigned clearance number 1029-0043. The information 
will be used to determine if reclamation bonds are sufficient to comply 
with the Act. Response is required to obtain a benefit in accordance 
with the requirements of 30 U.S.C. 1201 et seq. Public reporting burden 
for this collection of information is estimated to average 28 hours per 
response, including the time for reviewing instructions, searching 
existing data sources, gathering and maintaining the data needed, and 
completing and reviewing the collection of information. Send comments 
regarding this burden estimate or any other aspects of this collection 
of information, including suggestions for reducing the burden, to the 
Office of Surface Mining Reclamation and Enforcement, Information 
Collection Clearance Officer, 1951 Constitution Avenue NW., rm 5415 L, 
Washington, DC 20240 and the Office of Management and Budget, Paperwork 
Reduction Project (1029-0043), Washington, DC 20503.

[56 FR 59994, Nov. 26, 1991]



Sec. 800.11  Requirement to file a bond.

    (a) After a permit application under subchapter G of this chapter 
has been approved, but before a permit is issued, the applicant shall 
file with the regulatory authority, on a form prescribed and furnished 
by the regulatory authority, a bond or bonds for performance made 
payable to the regulatory authority and conditioned upon the faithful 
performance of all the requirements of the Act, the regulatory program, 
the permit, and the reclamation plan.
    (b)(1) The bond or bonds shall cover the entire permit area, or an 
identified increment of land within the permit area upon which the 
operator will initiate and conduct surface coal mining and reclamation 
operations during the initial term of the permit.
    (2) As surface coal mining and reclamation operations on succeeding 
increments are initiated and conducted within the permit area, the 
permittee shall file with the regulatory authority an additional bond or 
bonds to cover such increments in accordance with this section.
    (3) The operator shall identify the initial and successive areas or 
increments for bonding on the permit application map submitted for 
approval as provided in the application (under parts 780 and 784 of this 
chapter), and shall specify the bond amount to be provided for each area 
or increment.
    (4) Independent increments shall be of sufficient size and 
configuration to provide for efficient reclamation operations should 
reclamation by the regulatory authority become necessary pursuant to 
Sec. 800.50.
    (c) An operator shall not disturb any surface areas, succeeding 
increments, or extend any underground shafts, tunnels or operations 
prior to acceptance by the regulatory authority of the required 
performance bond.
    (d) The applicant shall file, with the approval of the regulatory 
authority, a bond or bonds under one of the following schemes to cover 
the bond

[[Page 285]]

amounts for the permit area as determined in accordance with Sec. 
800.14:
    (1) A performance bond or bonds for the entire permit area;
    (2) A cumulative bond schedule and the performance bond required for 
full reclamation of the initial area to be disturbed; or
    (3) An incremental bond schedule and the performance bond required 
for the first increment in the schedule.
    (e) OSM may approve, as part of a State or Federal program, an 
alternative bonding system, if it will achieve the following objectives 
and purposes of the bonding program:
    (1) The alternative must assure that the regulatory authority will 
have available sufficient money to complete the reclamation plan for any 
areas which may be in default at any time; and
    (2) The alternative must provide a substantial economic incentive 
for the permittee to comply with all reclamation provisions.



Sec. 800.12  Form of the performance bond.

    The regulatory authority shall prescribe the form of the performance 
bond. The regulatory authority may allow for:
    (a) A surety bond;
    (b) A collateral bond;
    (c) A self-bond; or
    (d) A combination of any of these bonding methods.



Sec. 800.13  Period of liability.

    (a)(1) Performance bond liability shall be for the duration of the 
surface coal mining and reclamation operation and for a period which is 
coincident with the operator's period of extended responsibility for 
successful revegetation provided in Sec. 816.116 or Sec. 817.116 of 
this chapter or until achievement of the reclamation requirements of the 
Act, regulatory programs, and permit, whichever is later.
    (2) With the approval of regulatory authority, a bond may be posted 
and approved to guarantee specific phases of reclamation within the 
permit area provided the sum of phase bonds posted equals or exceeds the 
total amount required under Sec. Sec. 800.14 and 800.15. The scope of 
work to be guaranteed and the liability assumed under each phase bond 
shall be specified in detail.
    (b) Isolated and clearly defined portions of the permit area 
requiring extended liability may be separated from the original area and 
bonded separately with the approval of the regulatory authority. Such 
areas shall be limited in extent and not constitute a scattered, 
intermittent, or checkerboard pattern of failure. Access to the 
separated areas for remedial work may be included in the area under 
extended liability if deemed necessary by the regulatory authority.
    (c) If the regulatory authority approves a long-term, intensive 
agricultural postmining land use, in accordance with Sec. 816.133 or 
Sec. 817.133 of this chapter, the applicable 5 or 10 year period of 
liability shall commence at the date of initial planting for such long-
term agricultural use.
    (d)(1) The bond liability of the permittee shall include only those 
actions which he or she is obligated to take under the permit, including 
completion of the reclamation plan, so that the land will be capable of 
supporting the postmining land use approved under Sec. 816.133 or Sec. 
817.133 of this chapter.
    (2) Implementation of an alternative postmining land use approved 
under Sec. Sec. 816.133(c) and 817.133(c) which is beyond the control 
of the permittee, need not be covered by the bond. Bond liability for 
prime farmland shall be as specified in Sec. 800.40(c)(2).



Sec. 800.14  Determination of bond amount.

    (a) The amount of the bond required for each bonded area shall:
    (1) Be determined by the regulatory authority;
    (2) Depend upon the requirements of the approved permit and 
reclamation plan;
    (3) Reflect the probable difficulty of reclamation, giving 
consideration to such factors as topography, geology, hydrology, and 
revegetation potential; and
    (4) Be based on, but not limited to, the estimated cost submitted by 
the permit applicant.
    (b) The amount of the bond shall be sufficient to assure the 
completion of the reclamation plan if the work has to

[[Page 286]]

be performed by the regulatory authority in the event of forfeiture, and 
in no case shall the total bond initially posted for the entire area 
under one permit be less than $10,000.
    (c) An operator's financial responsibility under Sec. 817.121(c) of 
this chapter for repairing material damage resulting from subsidence may 
be satisfied by the liability insurance policy required under Sec. 
800.60.



Sec. 800.15  Adjustment of amount.

    (a) The amount of the bond or deposit required and the terms of the 
acceptance of the applicant's bond shall be adjusted by the regulatory 
authority from time to time as the area requiring bond coverage is 
increased or decreased or where the cost of future reclamation changes. 
The regulatory authority may specify periodic times or set a schedule 
for reevaluating and adjusting the bond amount to fulfill this 
requirement.
    (b) The regulatory authority shall--
    (1) Notify the permittee, the surety, and any person with a property 
interest in collateral who has requested notification under Sec. 
800.21(f) of any proposed adjustment to the bond amount; and
    (2) Provide the permittee an opportunity for an informal conference 
on the adjustment.
    (c) A permittee may request reduction of the amount of the 
performance bond upon submission of evidence to the regulatory authority 
proving that the permittee's method of operation or other circumstances 
reduces the estimated cost for the regulatory authority to reclaim the 
bonded area. Bond adjustments which involve undisturbed land or revision 
of the cost estimate of reclamation are not considered bond release 
subject to procedures of Sec. 800.40.
    (d) In the event that an approved permit is revised in accordance 
with subchapter G of this chapter, the regulatory authority shall review 
the bond for adequacy and, if necessary, shall require adjustment of the 
bond to conform to the permit as revised.



Sec. 800.16  General terms and conditions of bond.

    (a) The performance bond shall be in an amount determined by the 
regulatory authority as provided in Sec. 800.14.
    (b) The performance bond shall be payable to the regulatory 
authority.
    (c) The performance bond shall be conditioned upon faithful 
performance of all the requirements of the Act, this chapter, the 
regulatory program, and the approved permit, including completion of the 
reclamation plan.
    (d) The duration of the bond shall be for the time period provided 
in Sec. 800.13.
    (e)(1) The bond shall provide a mechanism for a bank or surety 
company to give prompt notice to the regulatory authority and the 
permittee of any action filed alleging the insolvency or bankruptcy of 
the surety company, the bank, or the permittee, or alleging any 
violations which would result in suspension or revocation of the surety 
or bank charter or license to do business.
    (2) Upon the incapacity of a bank or surety company by reason of 
bankruptcy, insolvency, or suspension or revocation of a charter or 
license, the permittee shall be deemed to be without bond coverage and 
shall promptly notify the regulatory authority. The regulatory 
authority, upon notification received through procedures of paragraph 
(e)(1) of this section or from the permittee, shall, in writing, notify 
the operator who is without bond coverage and specify a reasonable 
period, not to exceed 90 days, to replace bond coverage. If an adequate 
bond is not posted by the end of the period allowed, the operator shall 
cease coal extraction and shall comply with the provisions of Sec. 
816.132 or Sec. 817.132 of this chapter and shall immediately begin to 
conduct reclamation operations in accordance with the reclamation plan. 
Mining operations shall not resume until the regulatory authority has 
determined that an acceptable bond has been posted.



Sec. 800.17  Bonding requirements for underground coal mines and long-term 

coal-related surface facilities and structures.

    (a) Responsibilities. The regulatory authority shall require bond 
coverage, in an amount determined under Sec. 800.14, for long-term 
surface facilities and structures, and for areas disturbed by surface 
impacts incident to underground mines, for which a permit is required. 
Specific reclamation techniques required for underground mines

[[Page 287]]

and long-term facilities shall be considered in determining the amount 
of bond to complete the reclamation.
    (b) Long-term period of liability. (1) The period of liability for 
every bond covering long-term surface disturbances shall commence with 
the issuance of a permit, except that to the extent that such 
disturbances will occur on a succeeding increment to be bonded, such 
liability will commence upon the posting of the bond for that increment 
before the initial surface disturbance of that increment. The liability 
period shall extend until all reclamation, restoration, and abatement 
work under the permit has been completed and the bond is released under 
the provisions of Sec. 800.40, or until the bond has been replaced or 
extended in accordance with Sec. 800.17(b)(3).
    (2) Long-term surface disturbances shall include long-term coal-
related surface facilities and structures, and surface impacts incident 
to underground coal mining, which disturb an area for a period that 
exceeds 5 years. Long-term surface disturbances include, but are not 
limited to: surface features of shafts and slope facilities, coal refuse 
areas, powerlines, bore-holes, ventilation shafts, preparation plants, 
machine shops, roads, and loading and treatment facilities.
    (3) To achieve continuous bond coverage for long-term surface 
disturbances, the bond shall be conditioned upon extension, replacement, 
or payment in full, 30 days prior to the expiration of the bond term.
    (4) Continuous bond coverage shall apply throughout the period of 
extended responsibility for successful revegetation and until the 
provisions of Sec. 800.40 have been met.
    (c) Bond forfeiture. The regulatory authority shall take action to 
forfeit a bond pursuant to this section, if 30 days prior to bond 
expiration, the operator has not filed: (1) A performance bond for a new 
term as required for continuous coverage, or (2) a performance bond 
providing coverage for the period of liability, including the period of 
extended responsibility for successful revegetation.



Sec. 800.20  Surety bonds.

    (a) A surety bond shall be executed by the operator and a corporate 
surety licensed to do business in the State where the operation is 
located.
    (b) Surety bonds shall be noncancellable during their terms, except 
that surety bond coverage for lands not disturbed may be cancelled with 
the prior consent of the regulatory authority. The regulatory authority 
shall advise the surety, within 30 days after receipt of a notice to 
cancel bond, whether the bond may be cancelled on an undisturbed area.



Sec. 800.21  Collateral bonds.

    (a) Collateral bonds, except for letters of credit, cash accounts, 
and real property, shall be subject to the following conditions:
    (1) The regulatory authority shall keep custody of collateral 
deposited by the applicant until authorized for release or replacement 
as provided in this subchapter.
    (2) The regulatory authority shall value collateral at its current 
market value, not at face value.
    (3) The regulatory authority shall require that certificates of 
deposit be made payable to or assigned to the regulatory authority, both 
in writing and upon the records of the bank issuing the certificates. If 
assigned, the regulatory authority shall require the banks issuing these 
certificates to waive all rights of setoff or liens against those 
certificates.
    (4) The regulatory authority shall not accept an individual 
certificate of deposit in an amount in excess of $100,000 or the maximum 
insurable amount as determined by the Federal Deposit Insurance 
Corporation or the Federal Savings and Loan Insurance Corporation.
    (b) Letters of credit shall be subject to the following conditions:
    (1) The letter may be issued only by a bank organized or authorized 
to do business in the United States;
    (2) Letters of credit shall be irrevocable during their terms. A 
letter of credit used as security in areas requiring continuous bond 
coverage shall be forfeited and shall be collected by the regulatory 
authority if not replaced by other suitable bond or letter of credit

[[Page 288]]

at least 30 days before its expiration date.
    (3) The letter of credit shall be payable to the regulatory 
authority upon demand, in part or in full, upon receipt from the 
regulatory authority of a notice of forfeiture issued in accordance with 
Sec. 800.50.
    (c) Real property posted as a collateral bond shall meet the 
following conditions:
    (1) The applicant shall grant the regulatory authority a first 
mortgage, first deed of trust, or perfected first-lien security interest 
in real property with a right to sell or otherwise dispose of the 
property in the event of forfeiture under Sec. 800.50.
    (2) In order for the regulatory authority to evaluate the adequacy 
of the real property offered to satisfy collateral requirements, the 
applicant shall submit a schedule of the real property which shall be 
mortgaged or pledged to secure the obligations under the indemnity 
agreement. The list shall include--
    (i) A description of the property;
    (ii) The fair market value as determined by an independent appraisal 
conducted by a certified appraiser; and
    (iii) Proof of possession and title to the real property.
    (3) The property may include land which is part of the permit area; 
however, land pledged as collateral for a bond under this section shall 
not be disturbed under any permit while it is serving as security under 
this section.
    (d) Cash accounts shall be subject to the following conditions:
    (1) The regulatory authority may authorize the operator to 
supplement the bond through the establishment of a cash account in one 
or more federally-insured or equivalently protected accounts made 
payable upon demand to, or deposited directly with, the regulatory 
authority. The total bond including the cash account shall not be less 
than the amount required under terms of performance bonds including any 
adjustments, less amounts released in accordance with Sec. 800.40.
    (2) Any interest paid on a cash account shall be retained in the 
account and applied to the bond value of the account unless the 
regulatory authority has approved the payment of interest to the 
operator.
    (3) Certificates of deposit may be substituted for a cash account 
with the approval of the regulatory authority.
    (4) The regulatory authority shall not accept an individual cash 
account in an amount in excess of $100,000 or the maximum insurable 
amount as determined by the Federal Deposit Insurance Corporation or the 
Federal Savings and Loan Insurance Corporation.
    (e)(1) The estimated bond value of all collateral posted as 
assurance under this section shall be subject to a margin which is the 
ratio of bond value to market value, as determined by the regulatory 
authority. The margin shall reflect legal and liquidation fees, as well 
as value depreciation, marketability, and fluctuations which might 
affect the net cash available to the regulatory authority to complete 
reclamation.
    (2) The bond value of collateral may be evaluated at any time but it 
shall be evaluated as part of permit renewal and, if necessary, the 
performance bond amount increased or decreased. In no case shall the 
bond value of collateral exceed the market value.
    (f) Persons with an interest in collateral posted as a bond, and who 
desire notification of actions pursuant to the bond, shall request the 
notification in writing to the regulatory authority at the time 
collateral is offered.



Sec. 800.23  Self-bonding.

    (a) Definitions. For the purposes of this section only:
    Current assets means cash or other assets or resources which are 
reasonably expected to be converted to cash or sold or consumed within 
one year or within the normal operating cycle of the business.
    Current liabilities means obligations which are reasonably expected 
to be paid or liquidated within one year or within the normal operating 
cycle of the business.
    Fixed assets means plants and equipment, but does not include land 
or coal in place.
    Liabilities means obligations to transfer assets or provide services 
to other entities in the future as a result of past transactions.

[[Page 289]]

    Net worth means total assets minus total liabilities and is 
equivalent to owners' equity.
    Parent corporation means a corporation which owns or controls the 
applicant.
    Tangible net worth means net worth minus intangibles such as 
goodwill and rights to patents or royalties.
    (b) The regulatory authority may accept a self-bond from an 
applicant for a permit if all of the following conditions are met by the 
applicant or its parent corporation guarantor:
    (1) The applicant designates a suitable agent to receive service of 
process in the State where the proposed surface coal mining operation is 
to be conducted.
    (2) The applicant has been in continuous operation as a business 
entity for a period of not less than 5 years. Continuous operation shall 
mean that business was conducted over a period of 5 years immediately 
preceding the time of application.
    (i) The regulatory authority may allow a joint venture or syndicate 
with less than 5 years of continuous operation to qualify under this 
requirement, if each member of the joint venture or syndicate has been 
in continuous operation for at least 5 years immediately preceding the 
time of application.
    (ii) When calculating the period of continuous operation, the 
regulatory authority may exclude past periods of interruption to the 
operation of the business entity that were beyond the applicant's 
control and that do not affect the applicant's likelihood of remaining 
in business during the proposed surface coal mining and reclamation 
operations.
    (3) The applicant submits financial information in sufficient detail 
to show that the applicant meets one of the following criteria:
    (i) The applicant has a current rating for its most recent bond 
issuance of ``A'' or higher as issued by either Moody's Investor Service 
or Standard and Poor's Corporation;
    (ii) The applicant has a tangible net worth of at least $10 million, 
a ratio of total liabilities to net worth of 2.5 times or less, and a 
ratio of current assets to current liabilities of 1.2 times or greater; 
or
    (iii) The applicant's fixed assets in the United States total at 
least $20 million, and the applicant has a ratio of total liabilities to 
net worth of 2.5 times or less, and a ratio of current assets to current 
liabilities of 1.2 times or greater.
    (4) The applicant submits;
    (i) Financial statements for the most recently completed fiscal year 
accompanied by a report prepared by an independent certified public 
accountant in conformity with generally accepted accounting principles 
and containing the accountant's audit opinion or review opinion of the 
financial statements with no adverse opinion;
    (ii) Unaudited financial statements for completed quarters in the 
current fiscal year; and
    (iii) Additional unaudited information as requested by the 
regulatory authority.
    (c)(1) The regulatory authority may accept a written guarantee for 
an applicant's self-bond from a parent corporation guarantor, if the 
guarantor meets the conditions of paragraphs (b)(1) through (b)(4) of 
this section as if it were the applicant. Such a written guarantee shall 
be referred to as a ``corporate guarantee.'' The terms of the corporate 
guarantee shall provide for the following:
    (i) If the applicant fails to complete the reclamation plan, the 
guarantor shall do so or the guarantor shall be liable under the 
indemnity agreement to provide funds to the regulatory authority 
sufficient to complete the reclamation plan, but not to exceed the bond 
amount.
    (ii) The corporate guarantee shall remain in force unless the 
guarantor sends notice of cancellation by certified mail to the 
applicant and to the regulatory authority at least 90 days in advance of 
the cancellation date, and the regulatory authority accepts the 
cancellation.
    (iii) The cancellation may be accepted by the regulatory authority 
if the applicant obtains suitable replacement bond before the 
cancellation date or if the lands for which the self-bond, or portion 
thereof, was accepted have not been disturbed.

[[Page 290]]

    (2) The regulatory authority may accept a written guarantee for an 
applicant's self-bond from any corporate guarantor, whenever the 
applicant meets the conditions of paragraphs (b)(1), (b)(2) and (b)(4) 
of this section, and the guarantor meets the conditions of paragraphs 
(b)(1) through (b)(4) of this section. Such a written guarantee shall be 
referred to as a ``non-parent corporate guarantee.'' The terms of this 
guarantee shall provide for compliance with the conditions of paragraphs 
(c)(1)(i) through (c)(1)(iii) of this section. The regulatory authority 
may require the applicant to submit any information specified in 
paragraph (b)(3) of this section in order to determine the financial 
capabilities of the applicant.
    (d) For the regulatory authority to accept an applicant's self-bond, 
the total amount of the outstanding and proposed self-bonds of the 
applicant for surface coal mining and reclamation operations shall not 
exceed 25 percent of the applicant's tangible net worth in the United 
States. For the regulatory authority to accept a corporate guarantee, 
the total amount of the parent corporation guarantor's present and 
proposed self-bonds and guaranteed self-bonds for surface coal mining 
and reclamation operations shall not exceed 25 percent of the 
guarantor's tangible net worth in the United States. For the regulatory 
authority to accept a non-parent corporate guarantee, the total amount 
of the non-parent corporate guarantor's present and proposed self-bonds 
and guaranteed self-bonds shall not exceed 25 percent of the guarantor's 
tangible net worth in the United States.
    (e) If the regulatory authority accepts an applicant's self-bond, an 
indemnity agreement shall be submitted subject to the following 
requirements:
    (1) The indemnity agreement shall be executed by all persons and 
parties who are to be bound by it, including the parent corporation 
guarantor, and shall bind each jointly and severally.
    (2) Corporations applying for a self-bond, and parent and non-parent 
corporations guaranteeing an applicant's self-bond shall submit an 
indemnity agreement signed by two corporate officers who are authorized 
to bind their corporations. A copy of such authorization shall be 
provided to the regulatory authority along with an affidavit certifying 
that such an agreement is valid under all applicable Federal and State 
laws. In addition, the guarantor shall provide a copy of the corporate 
authorization demonstrating that the corporation may guarantee the self-
bond and execute the indemnity agreement.
    (3) If the applicant is a partnership, joint venture or syndicate, 
the agreement shall bind each partner or party who has a beneficial 
interest, directly or indirectly, in the applicant.
    (4) Pursuant to Sec. 800.50, the applicant, parent or non-parent 
corporate guarantor shall be required to complete the approved 
reclamation plan for the lands in default or to pay to the regulatory 
authority an amount necessary to complete the approved reclamation plan, 
not to exceed the bond amount. If permitted under State law, the 
indemnity agreement when under forfeiture shall operate as a judgment 
against those parties liable under the indemnity agreement.
    (f) A regulatory authority may require self-bonded applicants, 
parent and non-parent corporate guarantors to submit an update of the 
information required under paragraphs (b)(3) and (b)(4) of this section 
within 90 days after the close of each fiscal year following the 
issuance of the self-bond or corporate guarantee.
    (g) If at any time during the period when a self-bond is posted, the 
financial conditions of the applicant, parent or non-parent corporate 
guarantor change so that the criteria of paragraphs (b)(3) and (d) of 
this section are not satisfied, the permittee shall notify the 
regulatory authority immediately and shall within 90 days post an 
alternate form of bond in the same amount as the self-bond. Should the 
permittee fail to post an adequate substitute bond, the provisions of 
Sec. 800.16(e) shall apply.

[48 FR 36429, Aug. 10, 1983, as amended at 53 FR 997, Jan. 14, 1988]



Sec. 800.30  Replacement of bonds.

    (a) The regulatory authority may allow a permittee to replace 
existing bonds with other bonds that provide equivalent coverage.

[[Page 291]]

    (b) The regulatory authority shall not release existing performance 
bonds until the permittee has submitted, and the regulatory authority 
has approved, acceptable replacement performance bonds. Replacement of a 
performance bond pursuant to this section shall not constitute a release 
of bond under Sec. 800.40.



Sec. 800.40  Requirement to release performance bonds.

    (a) Bond release application. (1) The permittee may file an 
application with the regulatory authority for the release of all or part 
of a performance bond. Applications may be filed only at times or during 
seasons authorized by the regulatory authority in order to properly 
evaluate the completed reclamation operations. The times or seasons 
appropriate for the evaluation of certain types of reclamation shall be 
established in the regulatory program or identified in the mining and 
reclamation plan required in subchapter G of this chapter and approved 
by the regulatory authority.
    (2) Within 30 days after an application for bond release has been 
filed with the regulatory authority, the permittee shall submit a copy 
of an advertisement placed at least once a week for four successive 
weeks in a newspaper of general circulation in the locality of the 
surface coal mining operation. The advertisement shall be considered 
part of any bond release application and shall contain the permittee's 
name, permit number and approval date, notification of the precise 
location of the land affected, the number of acres, the type and amount 
of the bond filed and the portion sought to be released, the type and 
appropriate dates of reclamation work performed, a description of the 
results achieved as they relate to the permittee's approved reclamation 
plan, and the name and address of the regulatory authority to which 
written comments, objections, or requests for public hearings and 
informal conferences on the specific bond release may be submitted 
pursuant to Sec. 800.40 (f) and (h). In addition, as part of any bond 
release application, the permittee shall submit copies of letters which 
he or she has sent to adjoining property owners, local governmental 
bodies, planning agencies, sewage and water treatment authorities, and 
water companies in the locality in which the surface coal mining and 
reclamation operation took place, notifying them of the intention to 
seek release from the bond.
    (3) The permittee shall include in the application for bond release 
a notarized statement which certifies that all applicable reclamation 
activities have been accomplished in accordance with the requirements of 
the Act, the regulatory program, and the approved reclamation plan. Such 
certification shall be submitted for each application or phase of bond 
release.
    (b) Inspection by regulatory authority. (1) Upon receipt of the bond 
release application, the regulatory authority shall, within 30 days, or 
as soon thereafter as weather conditions permit, conduct an inspection 
and evaluation of the reclamation work involved. The evaluation shall 
consider, among other factors, the degree of difficulty to complete any 
remaining reclamation, whether pollution of surface and subsurface water 
is occurring, the probability of future occurrence of such pollution, 
and the estimated cost of abating such pollution. The surface owner, 
agent, or lessee shall be given notice of such inspection and may 
participate with the regulatory authority in making the bond release 
inspection. The regulatory authority may arrange with the permittee to 
allow access to the permit area, upon request by any person with an 
interest in bond release, for the purpose of gathering information 
relevant to the proceeding.
    (2) Within 60 days from the filing of the bond release application, 
if no public hearing is held pursuant to paragraph (f) of this section, 
or, within 30 days after a public hearing has been held pursuant to 
paragraph (f) of this section, the regulatory authority shall notify in 
writing the permittee, the surety or other persons with an interest in 
bond collateral who have requested notification under Sec. 800.21(f), 
and the persons who either filed objections in writing or objectors who 
were a party to the hearing proceedings, if any, of its decision to 
release or not to release all or part of the performance bond.

[[Page 292]]

    (c) The regulatory authority may release all or part of the bond for 
the entire permit area or incremental area if the regulatory authority 
is satisfied that all the reclamation or a phase of the reclamation 
covered by the bond or portion thereof has been accomplished in 
accordance with the following schedules for reclamation of Phases I, II, 
and III:
    (1) At the completion of Phase I, after the operator completes the 
backfilling, regrading (which may include the replacement of topsoil) 
and drainage control of a bonded area in accordance with the approved 
reclamation plan, 60 percent of the bond or collateral for the 
applicable area.
    (2) At the completion of Phase II, after revegetation has been 
established on the regraded mined lands in accordance with the approved 
reclamation plan, an additional amount of bond. When determining the 
amount of bond to be released after successful revegetation has been 
established, the regulatory authority shall retain that amount of bond 
for the revegetated area which would be sufficient to cover the cost of 
reestablishing revegetation if completed by a third party and for the 
period specified for operator responsibility in section 515 of the Act 
for reestablishing revegetation. No part of the bond or deposit shall be 
released under this paragraph so long as the lands to which the release 
would be applicable are contributing suspended solids to streamflow or 
runoff outside the permit area in excess of the requirements set by 
section 515(b)(10) of the Act and by subchapter K of this chapter or 
until soil productivity for prime farmlands has returned to the 
equivalent levels of yield as nonmined land of the same soil type in the 
surrounding area under equivalent management practices as determined 
from the soil survey performed pursuant to section 507(b)(16) of the Act 
and part 823 of this chapter. Where a silt dam is to be retained as a 
permanent impoundment pursuant to subchapter K of this chapter, the 
Phase II portion of the bond may be released under this paragraph so 
long as provisions for sound future maintenance by the operator or the 
landowner have been made with the regulatory authority.
    (3) At the completion of Phase III, after the operator has completed 
successfully all surface coal mining and reclamation activities, the 
release of the remaining portion of the bond, but not before the 
expiration of the period specified for operator responsibility in Sec. 
816.116 or Sec. 817.116 of this chapter. However, no bond shall be 
fully released under provisions of this section until reclamation 
requirements of the Act and the permit are fully met.
    (d) If the regulatory authority disapproves the application for 
release of the bond or portion thereof, the regulatory authority shall 
notify the permittee, the surety, and any person with an interest in 
collateral as provided for in Sec. 800.21(f), in writing, stating the 
reasons for disapproval and recommending corrective actions necessary to 
secure the release and allowing an opportunity for a public hearing.
    (e) When any application for total or partial bond release is filed 
with the regulatory authority, the regulatory authority shall notify the 
municipality in which the surface coal mining operation is located by 
certified mail at least 30 days prior to the release of all or a portion 
of the bond.
    (f) Any person with a valid legal interest which might be adversely 
affected by release of the bond, or the responsible officer or head of 
any Federal, State, or local governmental agency which has jurisdiction 
by law or special expertise with respect to any environmental, social, 
or economic impact involved in the operation or which is authorized to 
develop and enforce environmental standards with respect to such 
operations, shall have the right to file written objections to the 
proposed release from bond with the regulatory authority within 30 days 
after the last publication of the notice required by Sec. 800.40(a)(2). 
If written objections are filed and a hearing is requested, the 
regulatory authority shall inform all the interested parties of the time 
and place of the hearing, and shall hold a public hearing within 30 days 
after receipt of the request for the hearing. The date, time, and 
location of the public hearing shall be advertised by

[[Page 293]]

the regulatory authority in a newspaper of general circulation in the 
locality for two consecutive weeks. The public hearing shall be held in 
the locality of the surface coal mining operation from which bond 
release is sought, at the location of the regulatory authority office, 
or at the State capital, at the option of the objector.
    (g) For the purpose of the hearing under paragraph (f) of this 
section, the regulatory authority shall have the authority to administer 
oaths, subpoena witnesses or written or printed material, compel the 
attendance of witnesses or the production of materials, and take 
evidence including, but not limited to, inspection of the land affected 
and other surface coal mining operations carried on by the applicant in 
the general vicinity. A verbatim record of each public hearing shall be 
made, and a transcript shall be made available on the motion of any 
party or by order of the regulatory authority.
    (h) Without prejudice to the right of an objector or the applicant, 
the regulatory authority may hold an informal conference as provided in 
section 513(b) of the Act to resolve such written objections. The 
regulatory authority shall make a record of the informal conference 
unless waived by all parties, which shall be accessible to all parties. 
The regulatory authority shall also furnish all parties of the informal 
conference with a written finding of the regulatory authority based on 
the informal conference, and the reasons for said finding.

[48 FR 32959, July 19, 1983, as amended at 48 FR 44780, Sept. 30, 1983; 
53 FR 998, Jan. 14, 1988; 56 FR 59994, Nov. 26, 1991]



Sec. 800.50  Forfeiture of bonds.

    (a) If an operator refuses or is unable to conduct reclamation of an 
unabated violation, if the terms of the permit are not met, or if the 
operator defaults on the conditions under which the bond was accepted, 
the regulatory authority shall take the following action to forfeit all 
or part of a bond or bonds for any permit area or an increment of a 
permit area:
    (1) Send written notification by certified mail, return receipt 
requested, to the permittee and the surety on the bond, if any, 
informing them of the determination to forfeit all or part of the bond, 
including the reasons for the forfeiture and the amount to be forfeited. 
The amount shall be based on the estimated total cost of achieving the 
reclamation plan requirements.
    (2) Advise the permittee and surety, if applicable, of the 
conditions under which forfeiture may be avoided. Such conditions may 
include, but are not limited to--
    (i) Agreement by the permittee or another party to perform 
reclamation operations in accordance with a compliance schedule which 
meets the conditions of the permit, the reclamation plan, and the 
regulatory program and a demonstration that such party has the ability 
to satisfy the conditions; or
    (ii) The regulatory authority may allow a surety to complete the 
reclamation plan, or the portion of the reclamation plan applicable to 
the bonded phase or increment, if the surety can demonstrate an ability 
to complete the reclamation in accordance with the approved reclamation 
plan. Except where the regulatory authority may approve partial release 
authorized under Sec. 800.40, no surety liability shall be released 
until successful completion of all reclamation under the terms of the 
permit, including applicable liability periods of Sec. 800.13.
    (b) In the event forfeiture of the bond is required by this section, 
the regulatory authority shall--
    (1) Proceed to collect the forfeited amount as provided by 
applicable laws for the collection of defaulted bonds or other debts if 
actions to avoid forfeiture have not been taken, or if rights of appeal, 
if any, have not been exercised within a time established by the 
regulatory authority, or if such appeal, if taken, is unsuccessful.
    (2) Use funds collected from bond forfeiture to complete the 
reclamation plan, or portion thereof, on the permit area or increment, 
to which bond coverage applies.
    (c) Upon default, the regulatory authority may cause the forfeiture 
of any and all bonds deposited to complete reclamation for which the 
bonds were posted. Unless specifically limited, as provided in Sec. 
800.11(b), bond liability shall extend to the entire permit area under 
conditions of forfeiture.

[[Page 294]]

    (d)(1) In the event the estimated amount forfeited is insufficient 
to pay for the full cost of reclamation, the operator shall be liable 
for remaining costs. The regulatory authority may complete, or authorize 
completion of, reclamation of the bonded area and may recover from the 
operator all costs of reclamation in excess of the amount forfeited.
    (2) In the event the amount of performance bond forfeited was more 
than the amount necessary to complete reclamation, the unused funds 
shall be returned by the regulatory authority to the party from whom 
they were collected.

[48 FR 32959, July 19, 1983, as amended at 48 FR 44780, Sept. 30, 1983]



Sec. 800.60  Terms and conditions for liability insurance.

    (a) The regulatory authority shall require the applicant to submit 
as part of its permit application a certificate issued by an insurance 
company authorized to do business in the United States certifying that 
the applicant has a public liability insurance policy in force for the 
surface coal mining and reclamation operations for which the permit is 
sought. Such policy shall provide for personal injury and property 
damage protection in an amount adequate to compensate any persons 
injured or property damaged as a result of the surface coal mining and 
reclamation operations, including the use of explosives, and who are 
entitled to compensation under the applicable provisions of State law. 
Minimum insurance coverage for bodily injury and property damage shall 
be $300,000 for each occurrence and $500,000 aggregate.
    (b) The policy shall be maintained in full force during the life of 
the permit or any renewal thereof and the liability period necessary to 
complete all reclamation operations under this Chapter.
    (c) The policy shall include a rider requiring that the insurer 
notify the regulatory authority whenever substantive changes are made in 
the policy including any termination or failure to renew.
    (d) The regulatory authority may accept from the applicant, in lieu 
of a certificate for a public liability insurance policy, satisfactory 
evidence from the applicant that it satisfies applicable State self-
insurance requirements approved as part of the regulatory program and 
the requirements of this section.

[48 FR 32959, July 19, 1983, as amended at 54 FR 13823, Apr. 5, 1989]



Sec. 800.70  Bonding for anthracite operations in Pennsylvania.

    (a) All of the provisions of this subchapter shall apply to bonding 
and insuring anthracite surface coal mining and reclamation operations 
in Pennsylvania except that--
    (1) Specified bond limits shall be determined by the regulatory 
authority in accordance with applicable provisions of Pennsylvania 
statutes, rules and regulations promulgated thereunder, and implementing 
policies of the Pennsylvania Department of Environmental Resources.
    (2) The period of liability for responsibility under each bond shall 
be established for those operations in accordance with applicable laws 
of the State of Pennsylvania, rules and regulations promulgated 
thereunder, and implementing policies of the Pennsylvania Department of 
Environmental Resources.
    (b) Upon amendment of the Pennsylvania permanent regulatory program 
with respect to specified bond limits and period of revegetation 
responsibility for anthracite surface coal mining and reclamation 
operations, any person engaging in or seeking to engage in those 
operations shall comply with additional regulations the Secretary may 
issue as are necessary to meet the purposes of the Act.

[[Page 295]]



          SUBCHAPTER K_PERMANENT PROGRAM PERFORMANCE STANDARDS



PART 810_PERMANENT PROGRAM PERFORMANCE STANDARDS_GENERAL PROVISIONS--Table of 

Contents



Sec.
810.1 Scope.
810.2 Objective.
810.3 Authority.
810.4 Responsibility.
810.11 Applicability.

    Authority: Secs. 102, 201, 501(b), 503, 504, 505, 512, 515, 516 and 
517, Pub. L. 95-87, 91 Stat. 448, 449, 468, 470, 471, 473, 483, 486, 
495, and 498 (30 U.S.C. 1202, 1211, 1251, 1253, 1254, 1255, 1262, 1265, 
1266, and 1267).

    Source: 44 FR 15393, Mar. 13, 1979, unless otherwise noted.



Sec. 810.1  Scope.

    This subchapter sets forth the minimum performance standards and 
design requirements to be adopted and implemented under a regulatory 
program for coal exploration and surface coal mining and reclamation 
operations.



Sec. 810.2  Objective.

    The objective of this subchapter is to ensure that coal exploration 
and surface coal mining and reclamation operations are conducted in 
manners which are compatible with the environmental, social, and 
esthetic needs of the Nation. Accordingly, the performance standards and 
design requirements in this subchapter will provide for--
    (a) Protection of the health, safety, and general welfare of mine 
workers and the public;
    (b) Maximum use and conservation of the solid fuel resource being 
recovered so that reaffecting the land through future surface coal 
mining operations can be minimized;
    (c) Prompt reclamation of all affected areas to conditions that are 
capable of supporting the premining land uses or higher or better land 
uses;
    (d) Reclamation of land affected by surface coal mining operations 
as contemporaneously as practicable with mining operations;
    (e) Minimizing, to the extent possible using the best technology 
currently available, disturbances and adverse impacts on fish, wildlife, 
and other related environmental values, and enhancement of such 
resources where practicable;
    (f) Revegetation which achieves a prompt vegetative cover and 
recovery of productivity levels compatible with approved land uses;
    (g) Minimum disturbance to the prevailing hydrologic balance at the 
mine-site and in associated off-site areas, and to the quality and 
quantity of water in surface and ground water systems;
    (h) Protection of fragile and historic lands where surface coal 
mining operations could result in significant damage to important 
historic, cultural, scientific, or esthetic values and natural systems;
    (i) Confinement of surface coal mining and reclamation operations 
including, but not limited to, the location of spoil disposal areas to 
lands within the permit area; and
    (j) Striking a balance between protection of the environment and 
agricultural productivity and the Nation's need for coal as an essential 
source of energy.
    (k) Protection of endangered and threatened species and their 
critical habitats as determined by the Endangered Species Act of 1973 
(16 U.S.C. 1531 et seq.).



Sec. 810.3  Authority.

    The Secretary shall approve and promulgate minimum coal exploration 
and surface mining and reclamation operations performance standards and 
design requirements applicable under regulatory programs which are at 
least as stringent as subchapter K in accordance with subchapter C of 
this chapter.



Sec. 810.4  Responsibility.

    (a) The Director shall ensure that performance standards and design 
requirements at least as stringent as the

[[Page 296]]

standards of this subchapter are implemented and enforced under every 
regulatory program.
    (b) The State regulatory authority shall ensure that performance 
standards and design requirements at least as stringent as the standards 
in this subchapter are implemented and enforced under every State 
program.
    (c) Each person conducting coal exploration or surface coal mining 
and reclamation operations is responsible for complying with performance 
standards and design requirements which are at least as stringent as the 
standards in this subchapter and the applicable regulatory program.



Sec. 810.11  Applicability.

    Part 815 applies to all coal exploration conducted under regulatory 
programs. part 816 applies to all surface mining activities conducted 
under regulatory programs. Part 817 applies to all underground mining 
activities conducted under regulatory programs. Parts 818 through 828 
apply to certain special categories of surface coal mining and 
reclamation operations. Parts 816 and 817 apply to each of those special 
categories of operations, except to the extent that a provision of parts 
818 through 828 specifically exempts a particular category from a 
particular requirement of part 816 or part 817.



PART 815_PERMANENT PROGRAM PERFORMANCE STANDARDS_COAL EXPLORATION--Table of 

Contents



Sec.
815.1 Scope and purpose.
815.2 Permitting information.
815.13 Required documents.
815.15 Performance standards for coal exploration.

    Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-34.

    Source: 48 FR 40636, Sept. 8, 1983, unless otherwise noted.



Sec. 815.1  Scope and purpose.

    This part sets forth performance standards required for coal 
exploration which substantially disturbs the natural land surface. At 
the discretion of the regulatory authority, coal exploration operations 
may be further required to comply with the applicable standards of 30 
CFR parts 816 through 828.



Sec. 815.2  Permitting information.

    Notwithstanding cross-references in other parts which may be 
otherwise construed, part 772 establishes the notice and permit 
information requirements for coal exploration.

[53 FR 52950, Dec. 29, 1988]



Sec. 815.13  Required documents.

    Each person who conducts coal exploration which substantially 
disturbs the natural land surface shall, while in the exploration area, 
have available a copy of the filed notice of intention to explore or a 
copy of the exploration permit for review by the authorized 
representative of the regulatory authority upon request.



Sec. 815.15  Performance standards for coal exploration.

    (a) Habitats of unique or unusually high value for fish, wildlife, 
and other related environmental values and critical habitats of 
threatened or endangered species identified pursuant to the Endangered 
Species Act of 1973 (16 U.S.C. 1531 et seq.) shall not be disturbed 
during coal exploration.
    (b) All roads or other transportation facilities used for coal 
exploration shall comply with the applicable provisions of Sec. Sec. 
816.150 (b) through (f), 816.180, and 816.181 of this chapter.
    (c) If excavations, artificially flat areas, or embankments are 
created during exploration, these areas shall be returned to the 
approximate original contour promptly after such features are no longer 
needed for coal exploration.
    (d) Topsoil shall be separately removed, stored, and redistributed 
on areas disturbed by coal exploration activities as necessary to assure 
successful revegetation or as required by the regulatory authority.
    (e) All areas disturbed by coal exploration activities shall be 
revegetated in a manner that encourages prompt revegetation and recovery 
of a diverse, effective, and permanent vegetative cover. Revegetation 
shall be accomplished in accordance with the following:

[[Page 297]]

    (1) All areas disturbed by coal exploration activities shall be 
seeded or planted to the same seasonal variety native to the areas 
disturbed. If the land use of the exploration area is intensive 
agriculture, planting of the crops normally grown will meet the 
requirements of this paragraph.
    (2) The vegetative cover shall be capable of stabilizing the soil 
surface from erosion.
    (f) Diversions of overland flows and ephemeral, perennial, or 
intermittent streams shall be made in accordance with Sec. 816.43 of 
this chapter.
    (g) Each exploration hole, borehole, well, or other exposed 
underground opening created during exploration shall be reclaimed in 
accordance with Sec. Sec. 816.13 through 816.15 of this chapter.
    (h) All facilities and equipment shall be promptly removed from the 
exploration area when they are no longer needed for exploration, except 
for those facilities and equipment that the regulatory authority 
determines may remain to--
    (1) Provide additional environmental data,
    (2) Reduce or control the onsite and offsite effects of the 
exploration activities, or
    (3) Facilitate future surface mining and reclamation operations by 
the person conducting the exploration.
    (i) Coal exploration shall be conducted in a manner which minimizes 
disturbance of the prevailing hydrologic balance in accordance with 
Sec. Sec. 816.41 through 816.49 of this chapter. The regulatory 
authority may specify additional measures which shall be adopted by the 
person engaged in coal exploration.
    (j) Acid- or toxic-forming materials shall be handled and disposed 
of in accordance with Sec. Sec. 816.41(b), 816.41(f), and 816.102(e) of 
this chapter. The regulatory authority may specify additional measures 
which shall be adopted by the person engaged in coal exploration.

[48 FR 40636, Sept. 8, 1983, as amended at 53 FR 45211, Nov. 8, 1988]



PART 816_PERMANENT PROGRAM PERFORMANCE STANDARDS_SURFACE MINING ACTIVITIES--

Table of Contents



Sec.
816.1 Scope.
816.2 Objectives.
816.10 Information collection.
816.11 Signs and markers.
816.13 Casing and sealing of drilled holes: General requirements.
816.14 Casing and sealing of drilled holes: Temporary.
816.15 Casing and sealing of drilled holes: Permanent.
816.22 Topsoil and subsoil.
816.41 Hydrologic-balance protection.
816.42 Hydrologic balance: Water quality standards and effluent 
          limitations.
816.43 Diversions.
816.45 Hydrologic balance: Sediment control measures.
816.46 Hydrologic balance: Siltation structures.
816.47 Hydrologic balance: Discharge structures.
816.49 Impoundments.
816.56 Postmining rehabilitation of sedimentation ponds, diversions, 
          impoundments, and treatment facilities.
816.57 Hydrologic balance: Activities in or adjacent to perennial or 
          intermittent streams.
816.59 Coal recovery.
816.61 Use of explosives: General requirements.
816.62 Use of explosives: Preblasting survey.
816.64 Use of explosives: Blasting schedule.
816.66 Use of explosives: Blasting signs, warnings, and access control.
816.67 Use of explosives: Control of adverse effects.
816.68 Use of explosives: Records of blasting operations.
816.71 Disposal of excess spoil: General requirements.
816.72 Disposal of excess spoil: Valley fills/head-of-hollow fills.
816.73 Disposal of excess spoil: Durable rock fills.
816.74 Disposal of excess spoil: Preexisting benches.
816.79 Protection of underground mining.
816.81 Coal mine waste: General requirements.
816.83 Coal mine waste: Refuse piles.
816.84 Coal mine waste: Impounding structures.
816.87 Coal mine waste: Burning and burned waste utilization.
816.89 Disposal of noncoal mine wastes.
816.95 Stabilization of surface areas.
816.97 Protection of fish, wildlife, and related environmental values.
816.99 Slides and other damage.
816.100 Contemporaneous reclamation.

[[Page 298]]

816.101 Backfilling and grading: Time and distance requirements.
816.102 Backfilling and grading: General grading requirements.
816.104 Backfilling and grading: Thin overburden.
816.105 Backfilling and grading: Thick overburden.
816.106 Backfilling and grading: Previously mined areas.
816.107 Backfilling and grading: Steep slopes.
816.111 Revegetation: General requirements.
816.113 Revegetation: Timing.
816.114 Revegetation: Mulching and other soil stabilizing practices.
816.116 Revegetation: Standards for success.
816.131 Cessation of operations: Temporary.
816.132 Cessation of operations: Permanent.
816.133 Postmining land use.
816.150 Roads: General.
816.151 Primary roads.
816.180 Utility installations.
816.181 Support facilities.
816.200 Interpretative rules related to general performance standards.

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

    Source: 44 FR 15395, Mar. 13, 1979, unless otherwise noted.



Sec. 816.1  Scope.

    This part sets forth the minimum environmental protection 
performance standards to be adopted and implemented under regulatory 
programs for surface mining activities.



Sec. 816.2  Objectives.

    This part is intended to ensure that all surface mining activities 
are conducted in a manner which preserves and enhances environmental and 
other values in accordance with the Act.



Sec. 816.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
this part and assigned clearance number 1029-0047. Collection of this 
information is required under section 515 of SMCRA, which provides that 
permittees conducting surface coal mining and reclamation operations 
must meet all applicable performance standards of the regulatory program 
approved under the Act. The regulatory authority uses the information 
collected to ensure that surface mining activities are conducted in 
compliance with the requirements of the applicable regulatory program. 
Persons intending to conduct such operations must respond to obtain a 
benefit. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays a 
currently valid OMB control number.

[73 FR 75882, Dec. 12, 2008]



Sec. 816.11  Signs and markers.

    (a) Specifications. Signs and markers required under this part 
shall--
    (1) Be posted and maintained by the person who conducts the surface 
mining activities;
    (2) Be of a uniform design throughout the operation that can be 
easily seen and read;
    (3) Be made of durable material; and
    (4) Conform to local ordinances and codes.
    (b) Duration of maintenance. Signs and markers shall be maintained 
during the conduct of all activities to which they pertain.
    (c) Mine and permit identification signs. (1) Identification signs 
shall be displayed at each point of access to the permit area from 
public roads.
    (2) Signs shall show the name, business address, and telephone 
number of the person who conducts the surface mining activities and the 
identification number of the current permit authorizing surface mining 
activities.
    (3) Signs shall be retained and maintained until after the release 
of all bonds for the permit area.
    (d) Perimeter markers. The perimeter of a permit area shall be 
clearly marked before the beginning of surface mining activities.
    (e) Buffer markers. The boundaries of any buffer to be maintained 
between surface mining activities and a perennial or intermittent stream 
in accordance with Sec. Sec. 780.28 and 816.57 of this chapter must be 
clearly marked to avoid disturbance by surface mining activities.
    (f) Topsoil markers. Where topsoil or other vegetation-supporting 
material is segregated and stockpiled as required under Sec. 816.22, 
the stockpiled material shall be clearly marked.

[44 FR 15395, Mar. 13, 1979, as amended at 48 FR 9806, Mar. 8, 1983; 48 
FR 44780, Sept. 30, 1983; 73 FR 75882, Dec. 12, 2008]

[[Page 299]]



Sec. 816.13  Casing and sealing of drilled holes: General requirements.

    Each exploration hole, other drill or borehole, well, or other 
exposed underground opening shall be cased, sealed, or otherwise 
managed, as approved by the regulatory authority, to prevent acid or 
other toxic drainage from entering ground or surface waters, to minimize 
disturbance to the prevailing hydrologic balance, and to ensure the 
safety of people, livestock, fish and wildlife, and machinery in the 
permit area and adjacent area. If these openings are uncovered or 
exposed by surface mining activities within the permit area they shall 
be permanently closed, unless approved for water monitoring, or 
otherwise managed in a manner approved by the regulatory authority. Use 
of a drilled hole or borehole or monitoring well as a water well must 
meet the provisions of Sec. 816.41 of this part. This section does not 
apply to holes solely drilled and used for blasting.

[44 FR 15395, Mar. 13, 1979, as amended at 48 FR 14822, Apr. 5, 1983; 48 
FR 43990, Sept. 26, 1983]



Sec. 816.14  Casing and sealing of drilled holes: Temporary.

    Each exploration hole, other drill or boreholes, wells and other 
exposed underground openings which have been identified in the approved 
permit application for use to return coal processing waste or water to 
underground workings, or to be used to monitor ground water conditions, 
shall be temporarily sealed before use and protected during use by 
barricades, or fences, or other protective devices approved by the 
regulatory authority. These devices shall be periodically inspected and 
maintained in good operating condition by the person who conducts the 
surface mining activities.

[44 FR 15395, Mar. 13, 1979; 44 FR 49686, Aug. 24, 1979]



Sec. 816.15  Casing and sealing of drilled holes: Permanent.

    When no longer needed for monitoring or other use approved by the 
regulatory authority upon a finding of no adverse environmental or 
health and safety effect, or unless approved for transfer as a water 
well under Sec. 816.41, each exploration hole, other drilled hole or 
borehole, well, and other exposed underground opening shall be capped, 
sealed, backfilled, or otherwise properly managed, as required by the 
regulatory authority, under Sec. 816.13 and consistent with 30 CFR 
75.1711. Permanent closure measures shall be designed to prevent access 
to the mine workings by people, livestock, fish and wildlife, and 
machinery, and to keep acid or other toxic drainage from entering ground 
or surface waters.

[44 FR 15395, Mar. 13, 1979, as amended at 48 FR 43990, Sept. 26, 1983]



Sec. 816.22  Topsoil and subsoil.

    (a) Removal. (1)(i) All topsoil shall be removed as a separate layer 
from the area to be disturbed, and segregated.
    (ii) Where the topsoil is of insufficient quantity or poor quality 
for sustaining vegetation, the materials approved by the regulatory 
authority in accordance with paragraph (b) of this section shall be 
removed as a separate layer from the area to be disturbed, and 
segregated.
    (2) If topsoil is less than 6 inches thick, the operator may remove 
the topsoil and the unconsolidated materials immediately below the 
topsoil and treat the mixture as topsoil.
    (3) The regulatory authority may choose not to require the removal 
of topsoil for minor disturbances which--
    (i) Occur at the site of small structures, such as power poles, 
signs, or fence lines; or
    (ii) Will not destroy the existing vegetation and will not cause 
erosion.
    (4) Timing. All material to be removed under this section shall be 
removed after the vegetative cover that would interfere with its salvage 
is cleared from the area to be disturbed, but before any drilling, 
blasting, mining, or other surface disturbance takes place.
    (b) Substitutes and supplements. Selected overburden materials may 
be substituted for, or used as a supplement to topsoil if the operator 
demonstrates to the regulatory authority that the resulting soil medium 
is equal to, or more suitable for sustaining vegetation than, the 
existing topsoil, and the resulting soil medium is the

[[Page 300]]

best available in the permit area to support revegetation.
    (c) Storage. (1) Materials removed under paragraph (a) of this 
section shall be segregated and stockpiled when it is impractical to 
redistribute such materials promptly on regraded areas.
    (2) Stockpiled materials shall--
    (i) Be selectively placed on a stable site within the permit area;
    (ii) Be protected from contaminants and unnecessary compaction that 
would interfere with revegetation;
    (iii) Be protected from wind and water erosion through prompt 
establishment and maintenance of an effective, quick growing vegetative 
cover or through other measures approved by the regulatory authority; 
and
    (iv) Not be moved until required for redistribution unless approved 
by the regulatory authority.
    (3) Where long-term surface disturbances will result from facilities 
such as support facilities and preparation plants and where stockpiling 
of materials removed under paragraph (a)(1) of this section would be 
detrimental to the quality or quantity of those materials, the 
regulatory authority may approve the temporary distribution of the soil 
materials so removed to an approved site within the permit area to 
enhance the current use of that site until needed for later reclamation, 
provided that--
    (i) Such action will not permanently diminish the capability of the 
topsoil of the host site; and
    (ii) The material will be retained in a condition more suitable for 
redistribution than if stockpiled.
    (d) Redistribution. (1) Topsoil materials and topsoil substitutes 
and supplements removed under paragraphs (a) and (b) of this section 
shall be redistributed in a manner that--
    (i) Achieves an approximately uniform, stable thickness when 
consistent with the approved postmining land use, contours, and surface-
water drainage systems. Soil thickness may also be varied to the extent 
such variations help meet the specific revegetation goals identified in 
the permit;
    (ii) Prevents excess compaction of the materials; and
    (iii) Protects the materials from wind and water erosion before and 
after seeding and planting.
    (2) Before redistribution of the material removed under paragraph 
(a) of this section the regraded land shall be treated if necessary to 
reduce potential slippage of the redistributed material and to promote 
root penetration. If no harm will be caused to the redistributed 
material and reestablished vegetation, such treatment may be conducted 
after such material is replaced.
    (3) The regulatory authority may choose not to require the 
redistribution of topsoil or topsoil substitutes on the approved 
postmining embankments of permanent impoundments or of roads if it 
determines that--
    (i) Placement of topsoil or topsoil substitutes on such embankments 
is inconsistent with the requirement to use the best technology 
currently available to prevent sedimentation, and
    (ii) Such enbankments will be otherwise stabilized.
    (4) Nutrients and soil amendments. Nutrients and soil amendments 
shall be applied to the initially redistributed material when necessary 
to establish the vegetative cover.
    (e) Subsoil segregation. The regulatory authority may require that 
the B horizon, C horizon, or other underlying strata, or portions 
thereof, be removed and segrgated, stockpiled, and redistributed as 
subsoil in accordance with the requirements of paragraphs (c) and (d) of 
this section if it finds that such subsoil layers are necessary to 
comply with the revegetation requirements of Sec. Sec. 816.111, 
816.113, 816.114, and 816.116 of this chapter.

[48 FR 22100, May 16, 1983, as amended at 71 FR 51705, Aug. 30, 2006]



Sec. 816.41  Hydrologic-balance protection.

    (a) General. All surface mining and reclamation activities shall be 
conducted to minimize disturbance of the hydrologic balance within the 
permit and adjacent areas, to prevent material damage to the hydrologic 
balance outside the permit area, to assure the protection or replacement 
of water rights, and to support approved postmining land uses in 
accordance with the terms

[[Page 301]]

and conditions of the approved permit and the performance standards of 
this part. The regulatory authority may require additional preventative, 
remedial, or monitoring measures to assure that material damage to the 
hydrologic balance outside the permit area is prevented. Mining and 
reclamation practices that minimize water pollution and changes in flow 
shall be used in preference to water treatment.
    (b) Ground-water protection. In order to protect the hydrologic 
balance, surface mining activities shall be conducted according to the 
plan approved under Sec. 780.21(h) of this chapter and the following:
    (1) Ground-water quality shall be protected by handling earth 
materials and runoff in a manner that minimizes acidic, toxic, or other 
harmful infiltration to ground-water systems and by managing excavations 
and other disturbances to prevent or control the discharge of pollutants 
into the ground water.
    (2) Ground-water quantity shall be protected by handling earth 
materials and runoff in a manner that will restore the approximate 
premining recharge capacity of the reclaimed area as a whole, excluding 
coal mine waste disposal areas and fills, so as to allow the movement of 
water to the ground-water system.
    (c) Ground-water monitoring. (1) Ground-water monitoring shall be 
conducted according to the ground-water monitoring plan approved under 
Sec. 780.21(i) of this chapter. The regulatory authority may require 
additional monitoring when necessary.
    (2) Ground-water monitoring data shall be submitted every 3 months 
to the regulatory authority or more frequently as prescribed by the 
regulatory authority. Monitoring reports shall include analytical 
results from each sample taken during the reporting period. When the 
analysis of any ground-water sample indicates noncompliance with the 
permit conditions, then the operator shall promptly notify the 
regulatory authority and immediately take the actions provided for in 
Sec. Sec. 773.17(e) and 780.21(h) of this chapter.
    (3) Ground-water monitoring shall proceed through mining and 
continue during reclamation until bond release. Consistent with the 
procedures of Sec. 774.13 of this chapter, the regulatory authority may 
modify the monitoring requirements, including the parameters covered and 
the sampling frequency, if the operator demonstrates, using the 
monitoring data obtained under this paragraph, that--
    (i) The operation has minimized disturbance to the hydrologic 
balance in the permit and adjacent areas and prevented material damage 
to the hydrologic balance outside the permit area; water quantity and 
quality are suitable to support approved postmining land uses; and the 
water rights of other users have been protected or replaced; or
    (ii) Monitoring is no longer necessary to achieve the purposes set 
forth in the monitoring plan approved under Sec. 780.21(i) of this 
chapter.
    (4) Equipment, structures, and other devices used in conjuction with 
monitoring the quality and quantity of ground water onsite and offsite 
shall be properly installed, maintained, and operated and shall be 
removed by the operator when no longer needed.
    (d) Surface-water protection. In order to protect the hydrologic 
balance, surface mining activities shall be conducted according to the 
plan approved under Sec. 780.21(h) of this chapter, and the following:
    (1) Surface-water quality shall be protected by handling earth 
materials, ground-water discharges, and runoff in a manner that 
minimizes the formation of acidic or toxic drainage; prevents, to the 
extent possible using the best technology currently available, 
additional contribution of suspended solids to streamflow outside the 
permit area; and otherwise prevents water pollution. If drainage 
control, restabilization and revegetation of disturbed areas, diversion 
of runoff, mulching, or other reclamation and remedial practices are not 
adequate to meet the requirements of this section and Sec. 816.42, the 
operator shall use and maintain the necessary water-treatment facilities 
or water quality controls.
    (2) Surface-water quality and flow rates shall be protected by 
handling earth materials and runoff in accordance with the steps 
outlined in the

[[Page 302]]

plan approved under Sec. 780.21(h) of this chapter.
    (e) Surface-water monitoring. (1) Surface-water monitoring shall be 
conducted according to the surface-water monitoring plan approved under 
Sec. 780.21(j) of this chapter. The regulatory authority may require 
additional monitoring when necessary.
    (2) Surface-water monitoring data shcll be submitted every 3 months 
to the regulatory authority or more frequently as prescribed by the 
regulatory authority. Monitoring reports shall include analytical 
results from each sample taken during the reporting period. When the 
analysis of any surface-water sample indicates noncompliance with the 
permit conditions, the operator shall promptly notify the regulatory 
authority and immediately take the actions provided for in Sec. Sec. 
773.17(e) and 780.21(h) of this chapter. The reporting requirements of 
this paragraph do not exempt the operator from meeting any National 
Pollutant Discharge Elimination System (NPDES) reporting requirements.
    (3) Surface-water monitoring shall proceed through mining and 
continue during reclamation until bond release. Consistent with Sec. 
774.13 of this chapter, the regulatory authority may modify the 
monitoring requirements, except those required by the NPDES permitting 
authority, including the parameters covered and sampling frequency if 
the operator demonstrates, using the monitoring data obtained under this 
paragraph, that--
    (i) The operation has minimized disturbance to the hydrologic 
balance in the permit and adjacent areas and prevented material damage 
to the hydrologic balance outside the permit area; water quantity and 
quality are suitable to support approved postmining land uses; and the 
water rights of other users have been protected or replaced; or
    (ii) Monitoring is no longer necessary to achieve the purposes set 
forth in the monitoring plan approved under Sec. 780.21(j) of this 
chapter.
    (4) Equipment, structures, and other devices used in conjunction 
with monitoring the quality and quantity of surface water onsite and 
offsite shall be properly installed, maintained, and operated and shall 
be removed by the operator when no longer needed.
    (f) Acid- and toxic-forming materials. (1) Drainage from acid- and 
toxic-forming materials into surface water and ground water shall be 
avoided by--
    (i) Identifying and burying and/or treating, when necessary, 
materials which may adversely affect water quality, or be detrimental to 
vegetation or to public health and safety if not buried and/or treated, 
and
    (ii) Storing materials in a manner that will protect surface water 
and ground water by preventing erosion, the formation of polluted 
runoff, and the infiltration of polluted water. Storage shall be limited 
to the period until burial and/or treatment first become feasible, and 
so long as storage will not result in any risk of water pollution or 
other environmental damage.
    (2) Storage, burial or treatment practices shall be consistent with 
other material handling and disposal provisions of this chapter.
    (g) Transfer of wells. Before final release of bond, exploratory or 
monitoring wells shall be sealed in a safe and environmentally sound 
manner in accordance with Sec. Sec. 816.13 to 816.15. With the prior 
approval of the regulatory authority, wells may be transferred to 
another party for further use. At a minimum, the conditions of such 
transfer shall comply with State and local law and the permittee shall 
remain responsible for the proper management of the well until bond 
release in accordance with Sec. Sec. 816.13 to 816.15.
    (h) Water rights and replacement. Any person who conducts surface 
mining activities shall replace the water supply of an owner of interest 
in real property who obtains all or part of his or her supply of water 
for domestic, agricultural, industrial, or other legitimate use from an 
underground or surface source, where the water supply has been adversely 
impacted by contamination, diminution, or interruption proximately 
resulting from the surface mining activities. Baseline hydrologic 
information required in Sec. Sec. 780.21 and 780.22 of this chapter 
shall be used to determine the extent of the impact of mining upon 
ground water and surface water.

[[Page 303]]

    (i) Discharges into an underground mine. (1) Discharges into an 
underground mine are prohibited, unless specifically approved by the 
regulatory authority after a demonstration that the discharge will--
    (i) Minimize disturbance to the hydrologic balance on the permit 
area, prevent material damage outside the permit area and otherwise 
eliminate public hazards resulting from surface mining activities;
    (ii) Not result in a violation of applicable water quality standards 
or effluent limitations;
    (iii) Be at a known rate and quality which shall meet the effluent 
limitations of Sec. 816.42 for pH and total suspended solids, except 
that the pH and total suspended-solids limitations may be exceeded, if 
approved by the regulatory authority; and
    (iv) Meet with the approval of the Mine Safety and Health 
Administration.
    (2) Discharges shall be limited to the following:
    (i) Water;
    (ii) Coal processing waste;
    (iii) Fly ash from a coal-fired facility;
    (iv) Sludge from an acid-mine-drainage treatment facility;
    (v) Flue-gas desulfurization sludge;
    (vi) Inert materials used for stabilizing underground mines; and
    (vii) Underground mine development wastes.

[48 FR 43990, Sept. 26, 1983]



Sec. 816.42  Hydrologic balance: Water quality standards and effluent 

limitations.

    Discharges of water from areas disturbed by surface mining 
activities shall be made in compliance with all applicable State and 
Federal water quality laws and regulations and with the effluent 
limitations for coal mining promulgated by the U.S. Environmental 
Protection Agency set forth in 40 CFR part 434.

[47 FR 47222, Oct. 22, 1982, as amended at 48 FR 44051, Sept. 26, 1983]



Sec. 816.43  Diversions.

    (a) General requirements. (1) With the approval of the regulatory 
authority, any flow from mined areas abandoned before May 3, 1978, and 
any flow from undisturbed areas or reclaimed areas, after meeting the 
criteria of Sec. 816.46 for siltation structure removal, may be 
diverted from disturbed areas by means of temporary or permanent 
diversions. All diversions shall be designed to minimize adverse impacts 
to the hydrologic balance within the permit and adjacent areas, to 
prevent material damage outside the permit area and to assure the safety 
of the public. Diversions shall not be used to divert water into 
underground mines without approval of the regulatory authority under 
Sec. 816.41(i).
    (2) The diversion and its appurtenant structures shall be designed, 
located, constructed, maintained and used to--
    (i) Be stable;
    (ii) Provide protection against flooding and resultant damage to 
life and property;
    (iii) Prevent, to the extent possible using the best technology 
currently available, additional contributions of suspended solids to 
streamflow outside the permit area; and
    (iv) Comply with all applicable local, State, and Federal laws and 
regulations.
    (3) Temporary diversions shall be removed promptly when no longer 
needed to achieve the purpose for which they were authorized. The land 
disturbed by the removal process shall be restored in accordance with 
this part. Before diversions are removed, downstream water-treatment 
facilities previously protected by the diversion shall be modified or 
removed, as necessary, to prevent overtopping or failure of the 
facilities. This requirement shall not relieve the operator from 
maintaining water-treatment facilities as otherwise required.
    (4) A permanent diversion or a stream channel restored after the 
completion of mining must be designed and constructed so as to restore 
or approximate the premining characteristics of the original stream 
channel, including any natural riparian vegetation, to promote the 
recovery and enhancement of the aquatic habitat.
    (5) The regulatory authority may specify design criteria for 
diversions to meet the requirements of this section.

[[Page 304]]

    (b) Diversion of perennial and intermittent streams. (1) The 
regulatory authority may approve the diversion of perennial or 
intermittent streams within the permit area if the diversion is located 
and designed to minimize adverse impacts on fish, wildlife, and related 
environmental values to the extent possible, using the best technology 
currently available. The permittee must construct and maintain the 
diversion in accordance with the approved design.
    (2) The design capacity of channels for temporary and permanent 
stream channel diversions shall be at least equal to the capacity of the 
unmodified stream channel immediately upstream and downstream from the 
diversion.
    (3) The requirements of paragraph (a)(2)(ii) of this section shall 
be met when the temporary and permanent diversions for perennial and 
intermittent streams are designed so that the combination of channel, 
bank and flood-plain configuration is adequate to pass safely the peak 
runoff of a 10-year, 6-hour precipitation event for a temporary 
diversion and a 100-year, 6-hour precipitation event for a permanent 
diversion.
    (4) A permanent stream-channel diversion or a stream channel 
restored after the completion of mining must be designed and constructed 
using natural channel design techniques so as to restore or approximate 
the premining characteristics of the original stream channel, including 
the natural riparian vegetation and the natural hydrological 
characteristics of the original stream, to promote the recovery and 
enhancement of the aquatic habitat and to minimize adverse alteration of 
stream channels on and off the site, including channel deepening or 
enlargement, to the extent possible.
    (5) A qualified registered professional engineer must separately 
certify both the design and construction of all diversions of perennial 
and intermittent streams and all stream restorations. The design 
certification must certify that the design meets the design requirements 
of this section and any design criteria set by the regulatory authority. 
The construction certification must certify that the stream-channel 
diversion or stream restoration meets all construction requirements of 
this section and is in accordance with the approved design.
    (c) Diversion of miscellaneous flows. (1) Miscellaneous flows, which 
consist of all flows except for perennial and intermittent streams, may 
be diverted away from disturbed areas if required or approved by the 
regulatory authority. Miscellaneous flows shall include ground-water 
discharges and ephemeral streams.
    (2) The design, location, construction, maintenance, and removal of 
diversions of miscellaneous flows shall meet all of the performance 
standards set forth in paragraph (a) of this section:
    (3) The requirements of paragraph (a)(2)(ii) of this section shall 
be met when the temporary and permanent diversions for miscellaneous 
flows are designed so that the combination of channel, bank and flood-
plain configuration is adequate to pass safely the peak runoff of a 2-
year, 6-hour precipitation event for a temporary diversion and a 10-
year, 6-hour precipitation event for a permanent diversion.

[48 FR 43991, Sept. 26, 1983, as amended at 73 FR 75882, Dec. 12, 2008]



Sec. 816.45  Hydrologic balance: Sediment control measures.

    (a) Appropriate sediment control measures shall be designed, 
constructed, and maintained using the best technology currently 
available to:
    (1) Prevent, to the extent possible, additional contributions of 
sediment to streamflow or to runoff outside the permit area,
    (2) Meet the more stringent of applicable State or Federal effluent 
limitations,
    (3) Minimize erosion to the extent possible.
    (b) Sediment control measures include practices carried out within 
and adjacent to the disturbed area. The sedimentation storage capacity 
of practices in and downstream from the disturbed area shall reflect the 
degree to which successful mining and reclamation techniques are applied 
to reduce erosion and control sediment. Sediment control measures 
consist of the utilization of proper mining and reclamation methods and 
sediment

[[Page 305]]

control practices, singly or in combination. Sediment control methods 
include but are not limited to--
    (1) Disturbing the smallest practicable area at any one time during 
the mining operation through progressive backfilling, grading, and 
prompt revegetation as required in Sec. 816.111(b);
    (2) Stabilizing the backfill material to promote a reduction in the 
rate and volume of runoff, in accordance with the requirements of Sec. 
816.102;
    (3) Retaining sediment within disturbed areas;
    (4) Diverting runoff away from disturbed areas;
    (5) Diverting runoff using protected channels or pipes through 
disturbed areas so as not to cause additional erosion;
    (6) Using straw dikes, riprap, check dams, mulches, vegetative 
sediment filters, dugout ponds, and other measures that reduce overland 
flow velocity, reduce runoff volume, or trap sediment; and
    (7) Treating with chemicals.

[44 FR 15395, Mar. 13, 1979, as amended at 48 FR 44780, Sept. 30, 1983]



Sec. 816.46  Hydrologic balance: Siltation structures.

    (a) For the purpose of this section only, disturbed areas shall not 
include those areas--
    (1) In which the only surface mining activities include diversion 
ditches, siltation structures, or roads that are designed constructed 
and maintained in accordance with this part; and
    (2) For which the upstream area is not otherwise disturbed by the 
operator.
    (b) General requirements. (1) Additional contributions of suspended 
solids sediment to streamflow or runoff outside the permit area shall be 
prevented to the extent possible using the best technology currently 
available.
    (2) Siltation structures for an area shall be constructed before 
beginning any surface mining activities in that area, and upon 
construction shall be certified by a qualified registered professional 
engineer, or in any State which authorizes land surveyors to prepare and 
certify plans in accordance with Sec. 780.25(a) of this chapter a 
qualified registered professional land surveyor, to be constructed as 
designed and as approved in the reclamation plan.
    (3) Any siltation structure which impounds water shall be designed, 
constructed and maintained in accordance with Sec. 816.49 of this 
chapter.
    (4) Siltation structures shall be maintained until removal is 
authorized by the regulatory authority and the disturbed area has been 
stabilized and revegetated. In no case shall the structure be removed 
sooner than 2 years after the last augmented seeding.
    (5) When siltation structure is removed, the land on which the 
siltation structure was located shall be regraded and revegetated in 
accordance with the reclamation plan and Sec. Sec. 816.111 through 
816.116 of this chapter. Sedimentation ponds approved by the regulatory 
authority for retention as permanent impoundments may be exempted from 
this requirement.
    (c) Sedimentation ponds. (1) When used, sedimentation ponds shall--
    (i) Be used individually or in series;
    (ii) Be located as near as possible to the disturbed area and out of 
perennial streams unless approved by the regulatory authority, and
    (iii) Be designed, constructed, and maintained to--
    (A) Provide adequate sediment storage volume;
    (B) Provide adequate detention time to allow the effluent from the 
ponds to meet State and Federal effluent limitations;
    (C) Contain or treat the 10-year, 24-hour precipitation event 
(``design event'') unless a lesser design event is approved by the 
regulatory authority based on terrain, climate, other site-specific 
conditions and on a demonstration by the operator that the effluent 
limitations of Sec. 816.42 will be met;
    (D) Provide a nonclogging dewatering device adequate to maintain the 
detention time required under paragraph (c)(1)(iii)(B) of this section;
    (E) Minimize, to the extent possible, short circuiting;
    (F) Provide periodic sediment removal sufficient to maintain 
adequate volume for the design event;
    (G) Ensure against excessive settlement;

[[Page 306]]

    (H) Be free of sod, large roots, frozen soil, and acid- or toxic-
forming coal-processing waste; and
    (I) Be compacted properly.
    (2) Spillways. A sedimentation pond shall include either a 
combination of principal and emergency spillways or single spillway 
configured as specified in Sec. 816.49(a)(9).
    (d) Other treatment facilities. (1) Other treatment facilities shall 
be designed to treat the 10-year, 24-hour precipitation event unless a 
lesser design event is approved by the regulatory authority based on 
terrain, climate, other site-specific conditions and a demonstration by 
the operator that the effluent limitations of Sec. 816.42 will be met.
    (2) Other treatment facilities shall be designed in accordance with 
the applicable requirements of paragraph (c) of this section.
    (e) Exemptions. Exemptions to the requirements of this section may 
be granted if--
    (1) The disturbed drainage area within the total disturbed area is 
small; and
    (2) The operator demonstrates that siltation structures and 
alternate sediment control measures are not necessary for drainage from 
the disturbed area to meet the effluent limitations under Sec. 816.42 
and the applicable State and Federal water quality standards for the 
receiving waters.

[48 FR 44051, Sept. 26, 1983, as amended at 53 FR 43605, Oct. 27, 1988; 
59 FR 53029, Oct. 20, 1994; 75 FR 60275, Sept. 29, 2010]



Sec. 816.47  Hydrologic balance: Discharge structures.

    Discharge from sedimentation ponds, permanent and temporary 
impoundments, coal processing waste dams and embankments, and diversions 
shall be controlled, by energy dissipators, riprap channels, and other 
devices, where necessary, to reduce erosion, to prevent deepening or 
enlargement of stream channels, and to minimize disturbance of the 
hydrologic balance. Discharge structures shall be designed according to 
standard engineering-design procedures.



Sec. 816.49  Impoundments.

    (a) General requirements. The requirements of this paragraph apply 
to both temporary and permanent impoundments.
    (1) Impoundments meeting the Class B or C criteria for dams in the 
U.S. Department of Agriculture, Soil Conservation Service Technical 
Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 
1985 shall comply with ``Minimum Emergency Spillway Hydrologic 
Criteria'' table in TR-60 and the requirements of this section. The 
technical release is hereby incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
may be obtained from the National Technical Information Service (NTIS), 
5285 Port Royal Road, Springfield, Virginia 22161, order No. PB 87-
157509/AS. Copies can be inspected at the OSM Headquarters Office, 
Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, 1951 Constitution Avenue, NW, Washington, DC, or at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html.
    (2) An impoundment meeting the size or other criteria of Sec. 
77.216(a) of this title shall comply with the requirements of Sec. 
77.216 of this title and this section.
    (3) Design certification. The design of impoundments shall be 
certified in accordance with Sec. 780.25(a) of this chapter as designed 
to meet the requirements of this part using current, prudent, 
engineering practices and any design criteria established by the 
regulatory authority. The qualified, registered, professional engineer 
or qualified, registered, professional, land surveyor shall be 
experienced in the design and construction of impoundments.
    (4) Stability. (i) An impoundment meeting the Class B or C criteria 
for dams in TR-60, or the size or other criteria of Sec. 77.216(a) of 
this title shall have a minimum static safety factor of 1.5 for a normal 
pool with steady state

[[Page 307]]

seepage saturation conditions, and a seismic safety factor of at least 
1.2.
    (ii) Impoundments not included in paragraph (a)(4)(i) of this 
section, except for a coal mine waste impounding structure, shall have a 
minimum static safety factor of 1.3 for a normal pool with steady state 
seepage saturation conditions or meet the requirements of Sec. 
780.25(c)(3).
    (5) Freeboard. Impoundments shall have adequate freeboard to resist 
overtopping by waves and by sudden increases in storage volume. 
Impoundments meeting the Class B or C criteria for dams in TR-60 shall 
comply with the freeboard hydrograph criteria in the ``Minimum Emergency 
Spillway Hydrologic Criteria'' table in TR-60.
    (6) Foundation. (i) Foundations and abutments for an impounding 
structure shall be stable during all phases of construction and 
operation and shall be designed based on adequate and accurate 
information on the foundation conditions. For an impoundment meeting the 
Class B or C criteria for dams in TR-60, or the size or other criteria 
of Sec. 77.216(a) of this title, foundation investigation, as well as 
any necessary laboratory testing of foundation material, shall be 
performed to determine the design requirements for foundation stability.
    (ii) All vegetative and organic materials shall be removed and 
foundations excavated and prepared to resist failure. Cutoff trenches 
shall be installed if necessary to ensure stability.
    (7) Slope protection shall be provided to protect against surface 
erosion at the site and protect against sudden drawdown.
    (8) Faces of embankments and surrounding areas shall be vegetated, 
except that faces where water is impounded may be riprapped or otherwise 
stabilized in accordance with accepted design practices.
    (9) Spillways. An impoundment shall include either a combination of 
principal and emergency spillways or a single spillway configured as 
specified in paragraph (a)(9)(i) of this section, designed and 
constructed to safely pass the applicable design precipitation event 
specified in paragraph (a)(9)(ii) of this section, except as set forth 
in paragraph (c)(2) of this section.
    (i) The regulatory authority may approve a single open-channel 
spillway that is:
    (A) Of nonerodible construction and designed to carry sustained 
flows; or
    (B) Earth- or grass-lined and designed to carry short-term, 
infrequent flows at non-erosive velocities where sustained flows are not 
expected.
    (ii) Except as specified in paragraph (c)(2) of this section, the 
required design precipitation event for an impoundment meeting the 
spillway requirements of paragraph (a)(9) of this section is:
    (A) For an impoundment meeting the Class B or C criteria for dams in 
TR-60, the emergency spillway hydrograph criteria in the ``Minimum 
Emergency Spillway Hydrologic Criteria'' table in TR-60, or greater 
event as specified by the regulatory authority.
    (B) For an impoundment meeting or exceeding the size or other 
criteria of Sec. 77.216(a) of this title, a 100-year 6-hour event, or 
greater event as specified by the regulatory authority.
    (C) For an impoundment not included in paragraph (a)(9)(ii) (A) and 
(B) of this section, a 25-year 6-hour or greater event as specified by 
the regulatory authority.
    (10) The vertical portion of any remaining highwall shall be located 
far enough below the low-water line along the full extent of highwall to 
provide adequate safety and access for the proposed water users.
    (11) Inspections. Except as provided in paragraph (a)(11)(iv) of 
this section, a qualified registered professional engineer or other 
qualified professional specialist under the direction of a professional 
engineer, shall inspect each impoundment as provided in paragraph 
(a)(11)(i) of this section. The professional engineer or specialist 
shall be experienced in the construction of impoundments.
    (i) Inspections shall be made regularly during construction, upon 
completion of construction, and at least yearly until removal of the 
structure or release of the performance bond.
    (ii) The qualified registered professional engineer, or qualified 
registered professional land surveyor as specified in paragraph 
(a)(11)(iv) of this section, shall promptly after each inspection

[[Page 308]]

required in paragraph (a)(11)(i) of this section provide to the 
regulatory authority a certified report that the impoundment has been 
constructed and/or maintained as designed and in accordance with the 
approved plan and this chapter. The report shall include discussion of 
any appearance of instability, structural weakness or other hazardous 
condition, depth and elevation of any impounded waters, existing storage 
capacity, any existing or required monitoring procedures and 
instrumentation, and any other aspects of the structure affecting 
stability.
    (iii) A copy of the report shall be retained at or near the 
minesite.
    (iv) In any State which authorizes land surveyors to prepare and 
certify plans in accordance with Sec. 780.25(a) of this chapter, a 
qualified registered professional land surveyor may inspect any 
temporary or permanent impoundment that does not meet the SCS Class B or 
C criteria for dams in TR-60, or the size or other criteria of Sec. 
77.216(a) of this title and certify and submit the report required by 
paragraph (a)(11)(ii) of this section, except that all coal mine waste 
impounding structures covered by Sec. 816.84 of this chapter shall be 
certified by a qualified registered professional engineer. The 
professional land surveyor shall be experienced in the construction of 
impoundments.
    (12) Impoundments meeting the SCS Class B or C criteria for dams in 
TR-60, or the size or other criteria of Sec. 77.216 of this title must 
be examined in accordance with Sec. 77.216-3 of this title. 
Impoundments not meeting the SCS Class B or C criteria for dams in TR-
60, or subject to Sec. 77.216 of this title, shall be examined at least 
quarterly. A qualified person designated by the operator shall examine 
impoundments for the appearance of structural weakness and other 
hazardous conditions.
    (13) Emergency procedures. If any examination or inspection 
discloses that a potential hazard exists, the person who examined the 
impoundment shall promptly inform the regulatory authority of the 
finding and of the emergency procedures formulated for public protection 
and remedial action. If adequate procedures cannot be formulated or 
implemented, the regulatory authority shall be notified immediately. The 
regulatory authority shall then notify the appropriate agencies that 
other emergency procedures are required to protect the public.
    (b) Permanent impoundments. A permanent impoundment of water may be 
created, if authorized by the regulatory authority in the approved 
permit based upon the following demonstration:
    (1) The size and configuration of such impoundment will be adequate 
for its intended purposes.
    (2) The quality of impounded water will be suitable on a permanent 
basis for its intended use and, after reclamation, will meet applicable 
State and Federal water quality standards, and discharges from the 
impoundment will meet applicable effluent limitations and will not 
degrade the quality of receiving water below applicable State and 
Federal water quality standards.
    (3) The water level will be sufficiently stable and be capable of 
supporting the intended use.
    (4) Final grading will provide for adequate safety and access for 
proposed water users.
    (5) The impoundment will not result in the diminution of the quality 
and quantity of water utilized by adjacent or surrounding landowners for 
agricultural, industrial, recreational, or domestic uses.
    (6) The impoundment will be suitable for the approved postmining 
land use.
    (c) Temporary impoundments. (1) The regulatory authority may 
authorize the construction of temporary impoundments as part of a 
surface coal mining operation.
    (2) In lieu of meeting the requirements in paragraph (a)(9)(i) of 
this section, the regulatory authority may approve an impoundment that 
relies primarily on storage to control the runoff from the design 
precipitation event when it is demonstrated by the operator and 
certified by a qualified registered professional engineer or qualified 
registered professional land surveyor in accordance with Sec. 780.25(a) 
of this chapter that the impoundment will safely control the design 
precipitation event, the water from which shall be safely removed in 
accordance with current, prudent, engineering practices. Such an 
impoundment shall be

[[Page 309]]

located where failure would not be expected to cause loss of life or 
serious property damage, except where:
    (i) Impoundments meeting the SCS Class B or C criteria for dams in 
TR-60, or the size or other criteria of Sec. 77.216(a) of this title 
shall be designed to control the precipitation of the probable maximum 
precipitation of a 6-hour event, or greater event specified by the 
regulatory authority.
    (ii) Impoundments not included in paragraph (c)(2)(i) of this 
section shall be designed to control the precipitation of the 100-year 
6-hour event, or greater event specified by the regulatory authority.

[48 FR 44004, Sept. 26, 1983, as amended at 50 FR 16200, Apr. 24, 1985; 
53 FR 43605, Oct. 27, 1988; 59 FR 53029, 53030, Oct. 20, 1994; 66 FR 
14317, Mar. 12, 2001]



Sec. 816.56  Postmining rehabilitation of sedimentation ponds, diversions, 

impoundments, and treatment facilities.

    Before abandoning a permit area or seeking bond release, the 
operator shall ensure that all temporary structures are removed and 
reclaimed, and that all permanent sedimentation ponds, diversions, 
impoundments, and treatment facilities meet the requirements of this 
chapter for permanent structures, have been maintained properly, and 
meet the requirements of the approved reclamation plan for permanent 
structures and impoundments. The operator shall renovate such structures 
if necessary to meet the requirements of this chapter and to conform to 
the approved reclamation plan.

[48 FR 44005, Sept. 26, 1983]



Sec. 816.57  Hydrologic balance: Activities in or adjacent to perennial or 

intermittent streams.

    (a)(1) Buffer requirement. Except as provided in paragraph (b) of 
this section and consistent with paragraph (a)(2) of this section, you, 
the permittee or operator, may not conduct surface mining activities 
that would disturb the surface of land within 100 feet, measured 
horizontally, of a perennial or intermittent stream, unless the 
regulatory authority authorizes you to do so under Sec. 780.28(e) of 
this chapter.
    (2) Clean Water Act requirements. Surface mining activities, 
including those activities in paragraphs (b)(1) through (b)(4) of this 
section, may be authorized in perennial or intermittent streams only 
where those activities would not cause or contribute to the violation of 
applicable State or Federal water quality standards developed pursuant 
to the Clean Water Act, as determined through certification under 
section 401 of the Clean Water Act or a permit under section 402 or 404 
of the Clean Water Act.
    (b) Exception. The buffer requirement of paragraph (a) of this 
section does not apply to those segments of a perennial or intermittent 
stream for which the regulatory authority, in accordance with Sec. 
780.28(d) of this chapter or Sec. 816.43(b)(1) of this part, approves 
one or more of the activities listed in paragraphs (b)(1) through (b)(4) 
of this section.
    (1) Diversion of a perennial or intermittent stream. You must comply 
with all other applicable requirements of the regulatory program, 
including the requirements of Sec. 816.43(b) of this part for the 
permanent or temporary diversion of a perennial or intermittent stream.
    (2) Placement of bridge abutments, culverts, or other structures in 
or within 100 feet of a perennial or intermittent stream to facilitate 
crossing of the stream by roads, railroads, conveyors, pipelines, 
utilities, or similar facilities. You must comply with all other 
applicable requirements of the regulatory program, including the 
requirements of Sec. Sec. 816.150, 816.151, and 816.181 of this part, 
as appropriate.
    (3) Construction of sedimentation pond embankments in a perennial or 
intermittent stream. This provision extends to the pool or storage area 
created by the embankment. You must comply with all other applicable 
requirements of the regulatory program, including the requirements of 
Sec. 816.45(a) of this part. Under Sec. 816.56 of this part, you must 
remove and reclaim all sedimentation pond embankments before abandoning 
the permit area or seeking final bond release unless the regulatory 
authority approves retention of the pond as a permanent impoundment

[[Page 310]]

under Sec. 816.49(b) of this part and provisions have been made for 
sound future maintenance by the permittee or the landowner in accordance 
with Sec. 800.40(c)(2) of this chapter.
    (4) Construction of excess spoil fills and coal mine waste disposal 
facilities in a perennial or intermittent stream. You must comply with 
all other applicable requirements of the regulatory program, including 
the requirements of paragraphs (a) and (f) of Sec. 816.71 of this part 
for excess spoil fills and the requirements of Sec. Sec. 816.81(a), 
816.83(a), and 816.84 of this part for coal mine waste disposal 
facilities.
    (c) Additional clarifications. All surface mining activities 
conducted in or within 100 feet of a perennial or intermittent stream 
must comply with paragraphs (b)(10)(B)(i) and (b)(24) of section 515 of 
the Act and the regulations implementing those provisions of the Act, 
including--
    (1) The requirement in Sec. 816.41(d)(1) of this part that surface 
mining activities be conducted according to the plan approved under 
Sec. 780.21(h) of this chapter and that earth materials, ground-water 
discharges, and runoff be handled in a manner that prevents, to the 
extent possible using the best technology currently available, 
additional contribution of suspended solids to streamflow outside the 
permit area; and otherwise prevents water pollution.
    (2) The requirement in Sec. 816.45(a) that appropriate sediment 
control measures be designed, constructed, and maintained using the best 
technology currently available to prevent, to the extent possible, 
additional contributions of sediment to streamflow or to runoff outside 
the permit area.
    (3) The requirement in Sec. 816.97(a) of this part that the 
operator must, to the extent possible using the best technology 
currently available, minimize disturbances and adverse impacts on fish 
and wildlife and related environmental values and achieve enhancement of 
those resources where practicable.
    (4) The requirement in Sec. 816.97(f) of this part that the 
operator avoid disturbances to, enhance where practicable, restore, or 
replace wetlands, habitats of unusually high value for fish and 
wildlife, and riparian vegetation along rivers and streams and bordering 
ponds and lakes.

[73 FR 75883, Dec. 12, 2008]



Sec. 816.59  Coal recovery.

    Surface mining activities shall be conducted so as to maximize the 
utilization and conservation of the coal, while utilizing the best 
appropriate technology currently available to maintain environmental 
integrity, so that reaffecting the land in the future through surface 
coal mining operations is minimized.



Sec. 816.61  Use of explosives: General requirements.

    (a) Each operator shall comply with all applicable State and Federal 
laws and regulations in the use of explosives.
    (b) Blasts that use more than 5 pounds of explosive or blasting 
agent shall be conducted according to the schedule required under Sec. 
816.64.
    (c) Blasters. (1) No later than 12 months after the blaster 
certification program for a State required by part 850 of this chapter 
has been approved under the procedures of subchapter C of this chapter, 
all blasting operations in that State shall be conducted under the 
direction of a certified blaster. Before that time, all such blasting 
operations in that State shall be conducted by competent, experienced 
persons who understand the hazards involved.
    (2) Certificates of blaster certification shall be carried by 
blasters or shall be on file at the permit area during blasting 
operations.
    (3) A blaster and at least one other person shall be present at the 
firing of a blast.
    (4) Any blaster who is responsible for conducting blasting 
operations at a blasting site shall:
    (i) Be familiar with the blasting plan and site-specific performance 
standards; and
    (ii) Give direction and on-the-job training to persons who are not 
certified and who are assigned to the blasting crew or assist in the use 
of explosives.
    (d) Blast design. (1) An anticipated blast design shall be submitted 
if blasting operations will be conducted within--

[[Page 311]]

    (i) 1,000 feet of any building used as a dwelling, public building, 
school, church, or community or institutional building outside the 
permit area; or
    (ii) 500 feet of an active or abandoned underground mine.
    (2) The blast design may be presented as part of a permit 
application or at a time, before the blast, approved by the regulatory 
authority.
    (3) The blast design shall contain sketches of the drill patterns, 
delay periods, and decking and shall indicate the type and amount of 
explosives to be used, critical dimensions, and the location and general 
description of structures to be protected, as well as a discussion of 
design factors to be used, which protect the pubic and meet the 
applicable airblast, flyrock, and ground-vibration standards in Sec. 
816.67.
    (4) The blast design shall be prepared and signed by a certified 
blaster.
    (5) The regulatory authority may require changes to the design 
submitted.

[48 FR 9492, Mar. 4, 1983, and 48 FR 9806, Mar. 8, 1983, as amended at 
51 FR 19461, May 29, 1986]



Sec. 816.62  Use of explosives: Preblasting survey.

    (a) At least 30 days before initiation of blasting, the operator 
shall notify, in writing, all residents or owners of dwellings or other 
structures located within \1/2\ mile of the permit area how to request a 
preblasting survey.
    (b) A resident or owner of a dwelling or structure within \1/2\ mile 
of any part of the permit area may request a preblasting survey. This 
request shall be made, in writing, directly to the operator or to the 
regulatory authority, who shall promptly notify the operator. The 
operator shall promptly conduct a preblasting survey of the dwelling or 
structure and promptly prepare a written report of the survey. An 
updated survey of any additions, modifications, or renovations shall be 
performed by the operator if requested by the resident or owner.
    (c) The operator shall determine the condition of the dwelling or 
structure and shall document any preblasting damage and other physical 
factors that could reasonably be affected by the blasting. Structures 
such as pipelines, cables, transmission lines, and cisterns, wells, and 
other water systems warrant special attention; however, the assessment 
of these structures may be limited to surface conditions and other 
readily available data.
    (d) The written report of the survey shall be signed by the person 
who conducted the survey. Copies of the report shall be promptly 
provided to the regulatory authority and to the person requesting the 
survey. If the person requesting the survey disagrees with the contents 
and/or recommendations contained therein, he or she may submit to both 
the operator and the regulatory authority a detailed description of the 
specific areas of disagreement.
    (e) Any surveys requested more than 10 days before the planned 
initiation of blasting shall be completed by the operator before the 
initiation of blasting.

[48 FR 9807, Mar. 8, 1983]



Sec. 816.64  Use of explosives: Blasting schedule.

    (a) General requirements. (1) The operator shall conduct blasting 
operations at times approved by the regulatory authority and announced 
in the blasting schedule. The regulatory authority may limit the area 
covered, timing, and sequence of blasting as listed in the schedule, if 
such limitations are necessary and reasonable in order to protect the 
public health and safety or welfare.
    (2) All blasting shall be conducted between sunrise and sunset, 
unless nighttime blasting is approved by the regulatory authority based 
upon a showing by the operator that the public will be protected from 
adverse noise and other impacts. The regulatory authority may specify 
more restrictive time periods for blasting.
    (3) Unscheduled blasts may be conducted only where public or 
operator health and safety so require and for emergency blasting 
actions. When an operator conducts an unscheduled blast, the operator, 
using audible signals, shall notify residents within \1/2\ mile of the 
blasting site and document the reason for the unscheduled blast in 
accordance with Sec. 816.68(p).

[[Page 312]]

    (b) Blasting schedule publication and distribution. (1) The operator 
shall publish the blasting schedule in a newspaper of general 
circulation in the locality of the blasting site at least 10 days, but 
not more than 30 days, before beginning a blasting program.
    (2) The operator shall distribute copies of the schedule to local 
governments and public utilities and to each local residence within \1/
2\ mile of the proposed blasting site described in the schedule.
    (3) The operator shall republish and redistribute the schedule at 
least every 12 months and revise and republish the schedule at least 10 
days, but not more than 30 days, before blasting whenever the area 
covered by the schedule changes or actual time periods for blasting 
significantly differ from the prior announcement.
    (c) Blasting schedule contents. The blasting schedule shall contain, 
at a minimum--
    (1) Name, address, and telephone number of operator;
    (2) Identification of the specific areas in which blasting will take 
place;
    (3) Dates and time periods when explosives are to be detonated;
    (4) Methods to be used to control access to the blasting area; and
    (5) Type and patterns of audible warning and all-clear signals to be 
used before and after blasting.

[48 FR 9807, Mar. 8, 1983]



Sec. 816.66  Use of explosives: Blasting signs, warnings, and access control.

    (a) Blasting signs. Blasting signs shall meet the specifications of 
Sec. 816.11. The operator shall--
    (1) Conspicuously place signs reading ``Blasting Area'' along the 
edge of any blasting area that comes within 100 feet of any public road 
right-of-way, and at the point where any other road provides access to 
the blasting area; and
    (2) At all entrances to the permit area from public roads or 
highways, place conspicuous signs which state ``Warning! Explosives in 
Use,'' which clearly list and describe the meaning of the audible blast 
warning and all-clear signals that are in use, and which explain the 
marking of blasting areas and charged holes awaiting firing within the 
permit area.
    (b) Warnings. Warning and all-clear signals of different character 
or pattern that are audible within a range of \1/2\ mile from the point 
of the blast shall be given. Each person within the permit area and each 
person who resides or regularly works within \1/2\ mile of the permit 
area shall be notified of the meaning of the signals in the blasting 
schedule.
    (c) Access control. Access within the blasting area shall be 
controlled to prevent presence of livestock or unauthorized persons 
during blasting and until an authorized representative of the operator 
has reasonably determined that--
    (1) No unusual hazards, such as imminent slides or undetonated 
charges, exist; and
    (2) Access to and travel within the blasting area can be safely 
resumed.

[48 FR 9807, Mar. 8, 1983]



Sec. 816.67  Use of explosives: Control of adverse effects.

    (a) General requirements. Blasting shall be conducted to prevent 
injury to persons, damage to public or private property outside the 
permit area, adverse impacts on any underground mine, and change in the 
course, channel, or availability of surface or ground water outside the 
permit area.
    (b) Airblast--(1) Limits. (i) Airblast shall not exceed the maximum 
limits listed below at the location of any dwelling, public building, 
school, church, or community or institutional building outside the 
permit area, except as provided in paragraph (e) of this section.

------------------------------------------------------------------------
    Lower frequency limit of measuring
  system, in Hz (3        Maximum level, in dB
                   dB)
------------------------------------------------------------------------
0.1 Hz or lower--flat response \1\.......  134 peak.
2 Hz or lower--flat response.............  133 peak.
6 Hz or lower--flat response.............  129 peak.
C-weighted--slow response \1\............  105 peak dBC.
------------------------------------------------------------------------
\1\ Only when approved by the regulatory authority.

    (ii) If necessary to prevent damage, the regulatory authority shall 
specify lower maximum allowable airblast levels than those of paragraph 
(b)(1)(i) of this section for use in the vicinity of a specific blasting 
operation.

[[Page 313]]

    (2) Monitoring. (i) The operator shall conduct periodic monitoring 
to ensure compliance with the airblast standards. The regulatory 
authority may require airblast measurement of any or all blasts and may 
specify the locations at which such measurements are taken.
    (ii) The measuring systems shall have an upper-end flat-frequency 
response of at least 200 Hz.
    (c) Flyrock. Flyrock travelling in the air or along the ground shall 
not be cast from the blasting site--
    (1) More than one-half the distance to the nearest dwelling or other 
occupied structure;
    (2) Beyond the area of control required under Sec. 816.66(c); or
    (3) Beyond the permit boundary.
    (d) Ground vibration--(1) General. In all blasting operations, 
except as otherwise authorized in paragraph (e) of this section, the 
maximum ground vibration shall not exceed the values approved in the 
blasting plan required under Sec. 780.13 of this chapter. The maximum 
ground vibration for protected structures listed in paragraph (d)(2)(i) 
of this section shall be established in accordance with either the 
maximum peak-particle-velocity limits of paragraph (d)(2), the scaled-
distance equation of paragraph (d)(3), the blasting-level chart of 
paragraph (d)(4) of this section, or by the regulatory authority under 
paragraph (d)(5) of this section. All structures in the vicinity of the 
blasting area, not listed in paragraph (d)(2)(i) of this section, such 
as water towers, pipelines and other utilities, tunnels, dams, 
impoundments, and underground mines, shall be protected from damage by 
establishment of a maximum allowable limit on the ground vibration, 
submitted by the operator in the blasting plan and approved by the 
regulatory authority.
    (2) Maximum peak particle velocity. (i) The maximum ground vibration 
shall not exceed the following limits at the location of any dwelling, 
public building, school, church, or community or institutional building 
outside the permit area:

------------------------------------------------------------------------
                                                  Maximum
                                                 allowable     Scaled-
                                                    peak       distance
                                                  particle    factor to
                                                velocity (V   be applied
 Distance (D), from the blasting site, in feet    max) for     without
                                                   ground      seismic
                                                 vibration,   monitoring
                                                 in inches/    \2\ (Ds)
                                                 second \1\
------------------------------------------------------------------------
0 to 300......................................         1.25           50
301 to 5,000..................................         1.00           55
5,001 and beyond..............................         0.75           65
------------------------------------------------------------------------
\1\ Ground vibration shall be measured as the particle velocity.
  Particle velocity shall be recorded in three mutually perpendicular
  directions. The maximum allowable peak particle velocity shall apply
  to each of the three measurements.
\2\ Applicable to the scaled-distance equation of paragraph (d)(3)(i) of
  this section.

    (ii) A seismographic record shall be provided for each blast.
    (3) Scale-distance equation. (i) An operator may use the scaled-
distance equation, W=(D/Ds) \2\, to determine the allowable charge 
weight of explosives to be detonated in any 8-millisecond period, 
without seismic monitoring; where W=the maximum weight of explosives, in 
pounds; D=the distance, in feet, from the blasting site to the nearest 
protected structure; and Ds=the scaled-distance factor, which may 
initially be approved by the regulatory authority using the values for 
scaled-distance factor listed in paragraph (d)(2)(i) of this section.
    (ii) The development of a modified scaled-distance factor may be 
authorized by the regulatory authority on receipt of a written request 
by the operator, supported by seismographic records of blasting at the 
minesite. The modified scale-distance factor shall be determined such 
that the particle velocity of the predicted ground vibration will not 
exceed the prescribed maximum allowable peak particle velocity of 
paragraph (d)(2)(i) of this section, at a 95-percent confidence level.
    (4) Blasting-level chart. (i) An operator may use the ground-
vibration limits in Figure 1 to determine the maximum allowable ground 
vibration.

[[Page 314]]

[GRAPHIC] [TIFF OMITTED] TC21OC91.025

    (ii) If the Figure 1 limits are used, a seismographic record 
including both particle velocity and vibration-frequency levels shall be 
provided for each blast. The method for the analysis of the predominant 
frequency contained in the blasting records shall be approved by the 
regulatory authority before application of this alternative blasting 
criterion.
    (5) The maximum allowable ground vibration shall be reduced by the 
regulatory authority beyond the limits otherwise provided by this 
section, if determined necessary to provide damage protection.
    (6) The regulatory authority may require an operator to conduct 
seismic monitoring of any or all blasts or may specify the location at 
which the measurements are taken and the degree of detail necessary in 
the measurement.
    (e) The maximum airblast and ground-vibration standards of 
paragraphs (b) and (d) of this section shall not apply at the following 
locations:
    (1) At structures owned by the permittee and not leased to another 
person.
    (2) At structures owned by the permittee and leased to another 
person, if a written waiver by the lessee is submitted to the regulatory 
authority before blasting.

[48 FR 9807, Mar. 8, 1983, as amended at 48 FR 44780, Sept. 30, 1983]

[[Page 315]]



Sec. 816.68  Use of explosives: Records of blasting operations.

    The operator shall retain a record of all blasts for at least 3 
years. Upon request, copies of these records shall be made available to 
the regulatory authority and to the public for inspection. Such records 
shall contain the following data:
    (a) Name of the operator conducting the blast.
    (b) Location, date, and time of the blast.
    (c) Name, signature, and certification number of the blaster 
conducting the blast.
    (d) Identification, direction, and distance, in feet, from the 
nearest blast hole to the nearest dwelling, public building, school, 
church, community or institutional building outside the permit area, 
except those described in Sec. 816.67(e).
    (e) Weather conditions, including those which may cause possible 
adverse blasting effects.
    (f) Type of material blasted.
    (g) Sketches of the blast pattern including number of holes, burden, 
spacing, decks, and delay pattern.
    (h) Diameter and depth of holes.
    (i) Types of explosives used.
    (j) Total weight of explosives used per hole.
    (k) The maximum weight of explosives detonated in an 8-millisecond 
period.
    (l) Initiation system.
    (m) Type and length of stemming.
    (n) Mats or other protections used.
    (o) Seismographic and airblast records, if required, which shall 
include--
    (1) Type of instrument, sensitivity, and calibration signal or 
certification of annual calibration;
    (2) Exact location of instrument and the date, time, and distance 
from the blast;
    (3) Name of the person and firm taking the reading;
    (4) Name of the person and firm analyzing the seismographic record; 
and
    (5) The vibration and/or airblast level recorded.
    (p) Reasons and conditions for each unscheduled blast.

[48 FR 9809, Mar. 8, 1983, as amended at 52 FR 29181, Aug. 6, 1987]



Sec. 816.71  Disposal of excess spoil: General requirements.

    (a) General. You, the permittee or operator, must place excess spoil 
in designated disposal areas within the permit area in a controlled 
manner to--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (2) Ensure mass stability and prevent mass movement during and after 
construction;
    (3) Ensure that the final fill is suitable for reclamation and 
revegetation compatible with the natural surroundings and the approved 
postmining land use; and
    (4) Minimize disturbances to and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, using the best 
technology currently available.
    (b) Static safety factor. The fill must be designed and constructed 
to attain a minimum long-term static safety factor of 1.5. The 
foundation and abutments of the fill must be stable under all conditions 
of construction.
    (c) Compliance with permit. You, the permittee or operator, must 
construct the fill in accordance with the design and plans submitted 
under Sec. 780.35 of this chapter and approved as part of the permit.
    (d) Special requirement for steep-slope conditions. When the slope 
in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope 
designated by the regulatory authority based on local conditions, you, 
the permittee or operator, must construct keyway cuts (excavations to 
stable bedrock) or rock-toe buttresses to ensure fill stability.
    (e) Placement of excess spoil. (1) All vegetative and organic 
materials shall be removed from the disposal area prior to placement of 
the excess spoil. Topsoil shall be removed, segregated and stored or 
redistributed in accordance with Sec. 816.22. If approved by the 
regulatory authority, organic material may be used as mulch or may be 
included in the topsoil to control erosion, promote growth of vegetation 
or increase the moisture retention of the soil.
    (2) Excess spoil shall be transported and placed in a controlled 
manner in horizontal lifts not exceeding 4 feet in

[[Page 316]]

thickness; concurrently compacted as necessary to ensure mass stability 
and to prevent mass movement during and after construction; graded so 
that surface and subsurface drainage is compatible with the natural 
surroundings; and covered with topsoil or substitute material in 
accordance with Sec. 816.22 of this chapter. The regulatory authority 
may approve a design which incorporates placement of excess spoil in 
horizontal lifts other than 4 feet in thickness when it is demonstrated 
by the operator and certified by a qualified registered professional 
engineer that the design will ensure the stability of the fill and will 
meet all other applicable requirements.
    (3) The final configuration of the fill shall be suitable for the 
approved postmining land use. Terraces may be constructed on the 
outslope of the fill if required for stability, control of erosion, to 
conserve soil moisture, or to facilitate the approved postmining land 
use. The grade of the outslope between terrace benches shall not be 
steeper than 2h: 1v (50 percent).
    (4) No permanent impoundments are allowed on the completed fill. 
Small depressions may be allowed by the regulatory authority if they are 
needed to retain moisture, minimize erosion, create and enhance wildlife 
habitat, or assist revegetation; and if they are not incompatible with 
the stability of the fill.
    (5) Excess spoil that is acid- or toxic-forming or combustible shall 
be adequately covered with nonacid, nontoxic and noncombustible 
material, or treated, to control the impact on surface and ground water 
in accordance with Sec. 816.41, to prevent sustained combustion, and to 
minimize adverse effects on plant growth and the approved postmining 
land use.
    (f) Drainage control. (1) If the disposal area contains springs, 
natural or manmade water courses, or wet weather seeps, the fill design 
shall include diversions and underdrains as necessary to control 
erosion, prevent water infiltration into the fill, and ensure stability.
    (2) Diversions shall comply with the requirements of Sec. 816.43.
    (3) Underdrains shall consist of durable rock or pipe, be designed 
and constructed using current, prudent engineering practices and meet 
any design criteria established by the regulatory authority. The 
underdrain system shall be designed to carry the anticipated seepage of 
water due to rainfall away from the excess spoil fill and from seeps and 
springs in the foundation of the disposal area and shall be protected 
from piping and contamination by an adequate filter. Rock underdrains 
shall be constructed of durable, nonacid-,nontoxic-forming rock (e.g., 
natural sand and gravel, sandstone, limestone, or other durable rock) 
that does not slake in water or degrade to soil material, and which is 
free of coal, clay or other nondurable material. Perforated pipe 
underdrains shall be corrosion resistant and shall have characteristics 
consistent with the long-term life of the fill.
    (g) Surface area stabilization. Slope protection shall be provided 
to minimize surface erosion at the site. All disturbed areas, including 
diversion channels that are not riprapped or otherwise protected, shall 
be revegetated upon completion of construction.
    (h) Inspections. A qualified registered professional engineer, or 
other qualified professional specialist under the direction of the 
professional engineer, shall periodically inspect the fill during 
construction. The professional engineer or specialist shall be 
experienced in the construction of earth and rock fills.
    (1) Such inspections shall be made at least quarterly throughout 
construction and during critical construction periods. Critical 
construction periods shall include at a minimum:
    (i) Foundation preparation, including the removal of all organic 
material and topsoil; (ii) placement of underdrains and protective 
filter systems; (iii) installation of final surface drainage systems; 
and (iv) the final graded and revegetated fill. Regular inspections by 
the engineer or specialist shall also be conducted during placement and 
compaction of fill materials.
    (2) The qualified registered professional engineer shall provide a 
certified report to the regulatory authority promptly after each 
inspection that the fill has been constructed and maintained as designed 
and in accordance

[[Page 317]]

with the approved plan and this chapter. The report shall include 
appearances of instability, structural weakness, and other hazardous 
conditions.
    (3)(i) The certified report on the drainage system and protective 
filters shall include color photographs taken during and after 
construction, but before underdrains are covered with excess spoil. If 
the underdrain system is constructed in phases, each phase shall be 
certified separately.
    (ii) Where excess durable rock spoil is placed in single or multiple 
lifts such that the underdrain system is constructed simultaneously with 
excess spoil placement by the natural segregation of dumped materials, 
in accordance with Sec. 816.73, color photographs shall be taken of the 
underdrain as the underdrain system is being formed.
    (iii) The photographs accompanying each certified report shall be 
taken in adequate size and number with enough terrain or other physical 
features of the site shown to provide a relative scale to the 
photographs and to specifically and clearly identify the site.
    (4) A copy of each inspection report shall be retained at or near 
the mine site.
    (i) Coal mine waste. Coal mine waste may be disposed of in excess 
spoil fills if approved by the regulatory authority and, if such waste 
is--
    (1) Placed in accordance with Sec. 816.83;
    (2) Nontoxic and nonacid forming; and
    (3) Of the proper characteristics to be consistent with the design 
stability of the fill.
    (j) Underground disposal. Excess spoil may be disposed of in 
underground mine workings, but only in accordance with a plan approved 
by the regulatory authority and MSHA under Sec. 784.25 of this chapter.

[48 FR 32925, July 19, 1983, as amended at 48 FR 44780, Sept. 30, 1983; 
73 FR 75883, Dec. 12, 2008]



Sec. 816.72  Disposal of excess spoil: Valley fills/head-of-hollow fills.

    Valley fills and head-of-hollow fills shall meet the requirements of 
Sec. 816.71 and the additional requirements of this section.
    (a) Drainage control. (1) The top surface of the completed fill 
shall be graded such that the final slope after settlement will be 
toward properly designed drainage channels. Uncontrolled surface 
drainage may not be directed over the outslope of the fill.
    (2) Runoff from areas above the fill and runoff from the surface of 
the fill shall be diverted into stabilized diversion channels designed 
to meet the requirements of Sec. 816.43 and, in addition, to safely 
pass the runoff from a 100-year, 6-hour precipitation event.
    (b) Rock-core chimney drains. A rock-core chimney drain may be used 
in a head-of-hollow fill, instead of the underdrain and surface 
diversion system normally required, as long as the fill is not located 
in an area containing intermittent or perennial streams. A rock-core 
chimney drain may be used in a valley fill if the fill does not exceed 
250,000 cubic yards of material and upstream drainage is diverted around 
the fill. The alternative rock-core chimney drain system shall be 
incorporated into the design and construction of the fill as follows.
    (1) The fill shall have, along the vertical projection of the main 
buried stream channel or rill, a vertical core of durable rock at least 
16 feet thick which shall extend from the toe of the fill to the head of 
the fill, and from the base of the fill to the surface of the fill. A 
system of lateral rock underdrains shall connect this rock core to each 
area of potential drainage or seepage in the disposal area. The 
underdrain system and rock core shall be designed to carry the 
anticipated seepage of water due to rainfall away from the excess spoil 
fill and from seeps and springs in the foundation of the disposal area. 
Rocks used in the rock core and underdrains shall meet the requirements 
of Sec. 816.71(f).
    (2) A filter system to ensure the proper long-term functioning of 
the rock core shall be designed and constucted using current, prudent 
engineering practices.
    (3) Grading may drain surface water away from the outslope of the 
fill and toward the rock core. In no case, however, may intermittent or 
perennial streams be diverted into the rock core. The maximum slope of 
the top of the fill shall be 33h:1v (3 percent). A drainage pocket may 
be maintained at the

[[Page 318]]

head of the fill during and after construction, to intercept surface 
runoff and discharge the runoff through or over the rock drain, if 
stability of the fill is not impaired. In no case shall this pocket or 
sump have a potential capacity for impounding more than 10,000 cubic 
feet of water. Terraces on the fill shall be graded with a 3 to 5 
percent grade toward the fill and a 1 percent slope toward the rock 
core.

[48 FR 32926, July 19, 1983]



Sec. 816.73  Disposal of excess spoil: Durable rock fills.

    The regulatory authority may approve the alternative method of 
disposal of excess durable rock spoil by gravity placement in single or 
multiple lifts, provided the following conditions are met:
    (a) Except as provided in this section, the requirements of Sec. 
816.71 are met.
    (b) The excess spoil consists of at least 80 percent, by volume, 
durable, nonacid- and nontoxic-forming rock (e.g., sandstone or 
limestone) that does not slake in water and will not degrade to soil 
material. Where used, noncemented clay shale, clay spoil, soil or other 
nondurable excess spoil materials shall be mixed with excess durable 
rock spoil in a controlled manner such that no more than 20 percent of 
the fill volume, as determined by tests performed by a registered 
engineer and approved by the regulatory authority, is not durable rock.
    (c) A qualified registered professional engineer certifies that the 
design will ensure the stability of the fill and meet all other 
applicable requirements.
    (d) The fill is designed to attain a minimum long-term static safety 
factor of 1.5, and an earthquake safety factor of 1.1.
    (e) The underdrain system may be constructed simultaneously with 
excess spoil placement by the natural segregation of dumped materials, 
provided the resulting underdrain system is capable of carrying 
anticipated seepage of water due to rainfall away from the excess spoil 
fill and from seeps and springs in the foundation of the disposal area 
and the other requirements for drainage control are met.
    (f) Surface water runoff from areas adjacent to and above the fill 
is not allowed to flow onto the fill and is diverted into stabilized 
diversion channels designed to meet the requirements of Sec. 816.43 and 
to safely pass the runoff from a 100-year, 6-hour precipitation event.

[48 FR 32926, July 19, 1983, as amended at 48 FR 44780, Sept. 30, 1983]



Sec. 816.74  Disposal of excess spoil: Preexisting benches.

    (a) The regulatory authority may approve the disposal of excess 
spoil through placement on a preexisting bench if the affected portion 
of the preexisting bench is permitted and the standards set forth in 
Sec. Sec. 816.102(c), (e) through (h), and (j), and the requirements of 
this section are met.
    (b) All vegetation and organic materials shall be removed from the 
affected portion of the preexisting bench prior to placement of the 
excess spoil. Any available topsoil on the bench shall be removed, 
stored and redistributed in accordance with Sec. 816.22 of this part. 
Substitute or supplemental materials may be used in accordance with 
Sec. 816.22(b) of this part.
    (c) The fill shall be designed and constructed using current, 
prudent engineering practices. The design will be certified by a 
registered professional engineer. The spoil shall be placed on the solid 
portion of the bench in a controlled manner and concurrently compacted 
as necessary to attain a long term static safety factor of 1.3 for all 
portions of the fill. Any spoil deposited on any fill portion of the 
bench will be treated as excess spoil fill under Sec. 816.71.
    (d) The preexisting bench shall be backfilled and graded to--
    (1) Achieve the most moderate slope possible which does not exceed 
the angle of repose;
    (2) Eliminate the highwall to the maximum extent technically 
practical;
    (3) Minimize erosion and water pollution both on and off the site; 
and
    (4) If the disposal area contains springs, natural or manmade water 
courses, or wet weather seeps, the fill design shall include diversions 
and underdrains as necessary to control erosion, prevent water 
infiltration into the fill, and ensure stability.

[[Page 319]]

    (e) All disturbed areas, including diversion channels that are not 
riprapped or otherwise protected, shall be revegetated upon completion 
of construction.
    (f) Permanent impoundments may not be constructed on preexisting 
benches backfilled with excess spoil under this regulation.
    (g) Final configuration of the backfill must be compatible with the 
natural drainage patterns and the surrounding area, and support the 
approved postmining land use.
    (h) Disposal of excess spoil from an upper actively mined bench to a 
lower preexisting bench by means of gravity transport may be approved by 
the regulatory authority provided that--
    (1) The gravity transport courses are determined on a site-specific 
basis by the operator as part of the permit application and approved by 
the regulatory authority to minimize hazards to health and safety and to 
ensure that damage will be minimized between the benches, outside the 
set course, and downslope of the lower bench should excess spoil 
accidentally move;
    (2) All gravity transported excess spoil, including that excess 
spoil immediately below the gravity transport courses and any 
preexisting spoil that is disturbed, is rehandled and placed in 
horizontal lifts in a controlled manner, concurrently compacted as 
necessary to ensure mass stability and to prevent mass movement, and 
graded to allow surface and subsurface drainage to be compatible with 
the natural surroundings and to ensure a minimum long-term static safety 
factor of 1.3. Excess spoil on the bench prior to the current mining 
operation that is not disturbed need not be rehandled except where 
necessary to ensure stability of the fill;
    (3) A safety berm is constructed on the solid portion of the lower 
bench prior to gravity transport of the excess spoil. Where there is 
insufficient material on the lower bench to construct a safety berm, 
only that amount of excess spoil necessary for the construction of the 
berm may be gravity transported to the lower bench prior to construction 
of the berm.
    (4) Excess spoil shall not be allowed on the downslope below the 
upper bench except on designated gravity transport courses properly 
prepared according to Sec. 816.22. Upon completion of the fill, no 
excess spoil shall be allowed to remain on the designated gravity 
transport course between the two benches and each transport course shall 
be reclaimed in accordance with the requirements of this part.

[48 FR 32927, July 19, 1983, as amended at 56 FR 65635, Dec. 17, 1991]



Sec. 816.79  Protection of underground mining.

    No surface mining activities shall be conducted closer than 500 feet 
to any point of either an active or abandoned underground mine, except 
to the extent that--
    (a) The activities result in improved resource recovery, abatement 
of water pollution, or elimination of hazards to the health and safety 
of the public; and
    (b) The nature, timing, and sequence of the activities that propose 
to mine closer than 500 feet to an active underground mine are jointly 
approved by the regulatory authority, the Mine Safety and Health 
Administration, and the State agency, if any, responsible for the safety 
of underground mine workers.

[48 FR 24651, June 1, 1983]



Sec. 816.81  Coal mine waste: General requirements.

    (a) General. All coal mine waste disposed of in an area other than 
the mine workings or excavations shall be placed in new or existing 
disposal areas within a permit area, which are approved by the 
regulatory authority for this purpose. Coal mine waste shall be hauled 
or conveyed and placed for final placement in a controlled manner to--
    (1) Minimize adverse effects of leachate and surface-water runoff on 
surface and ground water quality and quantity;
    (2) Ensure mass stability and prevent mass movement during and after 
construction;
    (3) Ensure that the final disposal facility is suitable for 
reclamation and revegetation compatible with the natural surroundings 
and the approved postmining land use;
    (4) Not create a public hazard; and
    (5) Prevent combustion.
    (b) Coal mine waste material from activities located outside a 
permit area

[[Page 320]]

may be disposed of in the permit area only if approved by the regulatory 
authority. Approval shall be based upon a showing that such disposal 
will be in accordance with the standards of this section.
    (c) Design certification. (1) The disposal facility shall be 
designed using current, prudent engineering practices and shall meet any 
design criteria established by the regulatory authority. A qualified 
registered professional engineer, experienced in the design of similar 
earth and waste structures, shall certify the design of the disposal 
facility.
    (2) The disposal facility shall be designed to attain a minimum 
long-term static safety factor of 1.5. The foundation and abutments must 
be stable under all conditions of construction.
    (d) Foundation. Sufficient foundation investigations, as well as any 
necessary laboratory testing of foundation material, shall be performed 
in order to determine the design requirements for foundation stability. 
The analyses of the foundation conditions shall take into consideration 
the effect of underground mine workings, if any, upon the stability of 
the disposal facility.
    (e) Emergency procedures. If any examination or inspection discloses 
that a potential hazard exists, the regulatory authority shall be 
informed promptly of the finding and of the emergency procedures 
formulated for public protection and remedial action. If adequate 
procedures cannot be formulated or implemented, the regulatory authority 
shall be notified immediately. The regulatory authority shall then 
notify the appropriate agencies that other emergency procedures are 
required to protect the public.
    (f) Underground disposal. Coal mine waste may be disposed of in 
underground mine workings, but only in accordance with a plan approved 
by the regulatory authority and MSHA under Sec. 784.25 of this chapter.

[48 FR 44028, Sept. 26, 1983, as amended at 56 FR 65635, Dec. 17, 1991]



Sec. 816.83  Coal mine waste: Refuse piles.

    Refuse piles shall meet the requirements of Sec. 816.81, the 
additional requirements of this section, and the requirements of 
Sec. Sec. 77.214 and 77.215 of this title.
    (a) Drainage control. (1) If the disposal area contains springs, 
natural or manmade water courses, or wet weather seeps, the design shall 
include diversions and underdrains as necessary to control erosion, 
prevent water infiltration into the disposal facility and ensure 
stability.
    (2) Uncontrolled surface drainage may not be diverted over the 
outslope of the refuse piles. Runoff from the areas above the refuse 
pile and runoff from the surface of the refuse pile shall be diverted 
into stabilized diversion channels designed to meet the requirements of 
Sec. 816.43 to safely pass the runoff from a 100-year, 6-hour 
precipitation event. Runoff diverted from undisturbed areas need not be 
commingled with runoff from the surface of the refuse pile.
    (3) Underdrains shall comply with the requirements of Sec. 
816.71(f)(3).
    (b) Surface area stabilization. Slope protection shall be provided 
to minimize surface erosion at the site. All disturbed areas, including 
diversion channels that are not riprapped or otherwise protected, shall 
be revegetated upon completion of construction.
    (c) Placement. (1) All vegetative and organic materials shall be 
removed from the disposal area prior to placement of coal mine waste. 
Topsoil shall be removed, segregated and stored or redistributed in 
accordance with Sec. 816.22. If approved by the regulatory authority, 
organic material may be used as mulch, or may be included in the topsoil 
to control erosion, promote growth of vegetation or increase the 
moisture retention of the soil.
    (2) The final configuration of the refuse pile shall be suitable for 
the approved postmining land use. Terraces may be constructed on the 
outslope of the refuse pile if required for stability, control or 
erosion, conservation of soil moisture, or facilitation of the approved 
postmining land use. The grade of the outslope between terrace benches 
shall not be steeper than 2h:1v (50 percent).
    (3) No permanent impoundments shall be allowed on the completed 
refuse pile. Small depressions may be allowed by the regulatory 
authority if

[[Page 321]]

they are needed to retain moisture, minimize erosion, create and enhance 
wildlife habitat, or assist revegetation, and if they are not 
incompatible with stability of the refuse pile.
    (4) Following final grading of the refuse pile, the coal mine waste 
shall be covered with a minimum of 4 feet of the best available, 
nontoxic and noncombustible material, in a manner that does not impede 
drainage from the underdrains. The regulatory authority may allow less 
than 4 feet of cover material based on physical and chemical analyses 
which show that the requirements of Sec. Sec. 816.111 through 816.116 
will be met.
    (d) Inspections. A qualified registered professional engineer, or 
other qualified professional specialist under the direction of the 
professional engineer, shall inspect the refuse pile during 
construction. The professional engineer or specialist shall be 
experienced in the construction of similar earth and waste structures.
    (1) Such inspections shall be made at least quarterly throughout 
construction and during critical construction periods. Critical 
construction periods shall include at a minimum:
    (i) Foundation preparation including the removal of all organic 
material and topsoil; (ii) placement of underdrains and protective 
filter systems; (iii) installation of final surface drainage systems; 
and (iv) the final graded and revegetated facility. Regular inspections 
by the engineer or specialist shall also be conducted during placement 
and compaction of coal mine waste materials. More frequent inspections 
shall be conducted if a danger of harm exists to the public health and 
safety or the environment. Inspections shall continue until the refuse 
pile has been finally graded and revegetated or until a later time as 
required by the regulatory authority.
    (2) The qualified registered professional engineer shall provide a 
certified report to the regulatory authority promptly after each 
inspection that the refuse pile has been constructed and maintained as 
designed and in accordance with the approved plan and this chapter. The 
report shall include appearances of instability, structural weakness, 
and other hazardous conditions.
    (3) The certified report on the drainage system and protective 
filters shall include color photographs taken during and after 
construction, but before underdrains are covered with coal mine waste. 
If the underdrain system is constructed in phases, each phase shall be 
certified separately. The photographs accompanying each certified report 
shall be taken in adequate size and number with enough terrain or other 
physical features of the site shown to provide a relative scale to the 
photographs and to specifically and clearly identify the site.
    (4) A copy of each inspection report shall be retained at or near 
the minesite.

[48 FR 44028, Sept. 26, 1983]



Sec. 816.84  Coal mine waste: Impounding structures.

    New and existing impounding structures constructed of coal mine 
waste or intended to impound coal mine waste shall meet the requirements 
of Sec. 816.81.
    (a) Coal mine waste shall not be used for construction of impounding 
structures unless it has been demonstrated to the regulatory authority 
that the stability of such a structure conforms to the requirements of 
this part and the use of coal mine waste will not have a detrimental 
effect on downstream water quality or the environment due to acid 
seepage through the impounding structure. The stability of the structure 
and the potential impact of acid mine seepage through the impounding 
structure shall be discussed in detail in the design plan submitted to 
the regulatory authority in accordance with Sec. 780.25 of this 
chapter.
    (b)(1) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste shall be designed, constructed and 
maintained in accordance with Sec. 816.49 (a) and (c). Such structures 
may not be retained permanently as part of the approved postmining land 
use.
    (2) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste that meets the criteria of Sec. 
77.216(a) of this title shall have sufficient spillway capacity

[[Page 322]]

to safely pass, adequate storage capacity to safely contain, or a 
combination of storage capacity and spillway capacity to safely control, 
the probable maximum precipitation of a 6-hour precipitation event, or 
greater event as specified by the regulatory authority.
    (c) Spillways and outlet works shall be designed to provide adequate 
protection against erosion and corrosion. Inlets shall be protected 
against blockage.
    (d) Drainage control. Runoff from areas above the disposal facility 
or runoff from surface of the facility that may cause instability or 
erosion of the impounding structure shall be diverted into stabilized 
diversion channels designed to meet the requirements of Sec. 816.43 and 
designed to safely pass the round off from a 100-year, 6-hour design 
precipitation event.
    (e) Impounding structures constructed of or impounding coal mine 
waste shall be designed so that at least 90 percent of the water stored 
during the design precipitation event can be removed within a 10-day 
period.
    (f) For an impounding structure constructed of or impounding coal 
mine waste, at least 90 percent of the water stored during the design 
precipitation event shall be removed within the 10-day period following 
the design precipitation event.

[48 FR 44029, Sept. 26, 1983, as amended at 53 FR 43606, Oct. 27, 1988]



Sec. 816.87  Coal mine waste: Burning and burned waste utilization.

    (a) Coal mine waste fires shall be extinguished by the person who 
conducts the surface mining activities, in accordance with a plan 
approved by the regulatory authority and the Mine Safety and Health 
Administration. The plan shall contain, at a minimum, provisions to 
ensure that only those persons authorized by the operator, and who have 
an understanding of the procedures to be used, shall be involved in the 
extinguishing operations.
    (b) No burning or burned coal mine waste shall be removed from a 
permitted disposal area without a removal plan approved by the 
regulatory authority. Consideration shall be given to potential hazards 
to persons working or living in the vicinity of the structure.

[48 FR 44029, Sept. 26, 1983]



Sec. 816.89  Disposal of noncoal mine wastes.

    (a) Noncoal mine wastes including, but not limited to grease, 
lubricants, paints, flammable liquids, garbage, abandoned mining 
machinery, lumber and other combustible materials generated during 
mining activities shall be placed and stored in a controlled manner in a 
designated portion of the permit area. Placement and storage shall 
ensure that leachate and surface runoff do not degrade surface or ground 
water, that fires are prevented, and that the area remains stable and 
suitable for reclamation and revegetation compatible with the natural 
surroundings.
    (b) Final disposal of noncoal mine wastes shall be in a designated 
disposal site in the permit area or a State-approved solid waste 
disposal area. Disposal sites in the permit area shall be designed and 
constructed to ensure that leachate and drainage from the noncoal mine 
waste area does not degrade surface or underground water. Wastes shall 
be routinely compacted and covered to prevent combustion and wind-borne 
waste. When the disposal is completed, a minimum of 2 feet of soil cover 
shall be placed over the site, slopes stabilized, and revegetation 
accomplished in accordance with Sec. Sec. 816.111 through 816.116. 
Operation of the disposal site shall be conducted in accordance with all 
local, State and Federal requirements.
    (c) At no time shall any noncoal mine waste be deposited in a refuse 
pile or impounding structure, nor shall an excavation for a noncoal mine 
waste disposal site be located within 8 feet of any coal outcrop or coal 
storage area.

[48 FR 44030, Sept. 26, 1983, as amended at 56 FR 65635, Dec. 17, 1991]



Sec. 816.95  Stabilization of surface areas.

    (a) All exposed surface areas shall be protected and stabilized to 
effectively control erosion and air pollution attendant to erosion.
    (b) Rills and gullies, which form in areas that have been regraded 
and

[[Page 323]]

topsoiled and which either (1) disrupt the approved postmining land use 
or the reestablishment of the vegetative cover, or (2) cause or 
contribute to a violation of water quality standards for receiving 
streams shall be filled, regraded, or otherwise stabilized; topsoil 
shall be replaced; and the areas shall be reseeded or replanted.

[48 FR 1163, Jan. 10, 1983]



Sec. 816.97  Protection of fish, wildlife, and related environmental values.

    (a) The operator shall, to the extent possible using the best 
technology currently available, minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values and shall 
achieve enhancement of such resources where practicable.
    (b) Endangered and threatened species. No surface mining activity 
shall be conducted which is likely to jeopardize the continued existence 
of endangered or threatened species listed by the Secretary or which is 
likely to result in the destruction or adverse modification of 
designated critical habitats of such species in violation of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). The 
operator shall promptly report to the regulatory authority any State- or 
federally-listed endangered or threatened species within the permit area 
of which the operator becomes aware. Upon notification, the regulatory 
authority shall consult with appropriate State and Federal fish and 
wildlife agencies and, after consultation, shall identify whether, and 
under what conditions, the operater may proceed.
    (c) Bald and golden eagles. No surface mining activity shall be 
conducted in a manner which would result in the unlawful taking of a 
bald or golden eagle, its nest, or any of its eggs. The operator shall 
promptly report to the regulatory authority any golden or bald eagle 
nest within the permit area of which the operator becomes aware. Upon 
notification, the regulatory authority shall consult with the U.S. Fish 
and Wildlife Service and also, where appropriate, the State fish and 
wildlife agency and, after consultation, shall identify whether, and 
under what conditions, the operator may proceed.
    (d) Nothing in this chapter shall authorize the taking of an 
endangered or threatened species or a bald or golden eagle, its nest, or 
any of its eggs in violation of the Endangered Species Act of 1973, as 
amended, 16 U.S.C. 1531 et seq., or the Bald Eagle Protection Act, as 
amended, 16 U.S.C. 668 et seq.
    (e) Each operator shall, to the extent possible using the best 
technology currently available--
    (1) Ensure that electric powerlines and other transmission 
facilities used for, or incidental to, surface mining activities on the 
permit area are designed and constructed to minimize electrocution 
hazards to raptors, except where the regulatory authority determines 
that such requirements are unnecessary;
    (2) Locate and operate haul and access roads so as to avoid or 
minimize impacts on important fish and wildlife species or other species 
protected by State or Federal law;
    (3) Design fences, overland conveyors, and other potential barriers 
to permit passage for large mammals, except where the regulatory 
authority determines that such requirements are unnecessary; and
    (4) Fence, cover, or use other appropriate methods to exclude 
wildlife from ponds which contain hazardous concentrations of toxic-
forming materials.
    (f) Wetlands and habitats of unusually high value for fish and 
wildlife. The operator conducting surface mining activities shall avoid 
disturbances to, enhance where practicable, restore, or replace, 
wetlands, and riparian vegetation along rivers and streams and bordering 
ponds and lakes. Surface mining activities shall avoid disturbances to, 
enhance where practicable, or restore, habitats of unusually high value 
for fish and wildlife.
    (g) Where fish and wildlife habitat is to be a postmining land use, 
the plant species to be used on reclaimed areas shall be selected on the 
basis of the following criteria:
    (1) Their proven nutritional value for fish or wildlife.
    (2) Their use as cover for fish or wildlife.
    (3) Their ability to support and enhance fish or wildlife habitat 
after the

[[Page 324]]

release of performance bonds. The selected plants shall be grouped and 
distributed in a manner which optimizes edge effect, cover, and other 
benefits to fish and wildlife.
    (h) Where cropland is to be the postmining land use, and where 
appropriate for wildlife- and crop-management practices, the operator 
shall intersperse the fields with trees, hedges, or fence rows 
throughout the harvested area to break up large blocks of monoculture 
and to diversify habitat types for birds and other animals.
    (i) Where residential, public service, or industrial uses are to be 
the postmining land use, and where consistent with the approved 
postmining land use, the operator shall intersperse reclaimed lands with 
greenbelts utilizing species of grass, shrubs, and trees useful as food 
and cover for wildlife.

[48 FR 30327, June 30, 1983, as amended at 52 FR 47360, Dec. 11, 1987]



Sec. 816.99  Slides and other damage.

    (a) An undisturbed natural barrier shall be provided beginning at 
the elevation of the lowest coal seam to be mined and extending from the 
outslope for such distance as may be determined by the regulatory 
authority as is needed to assure stability. The barrier shall be 
retained in place to prevent slides and erosion.
    (b) At any time a slide occurs which may have a potential adverse 
affect on public property, health, safety, or the environment, the 
person who conducts the surface mining activities shall notify the 
regulatory authority by the fastest available means and comply with any 
remedial measures required by the regulatory authority.



Sec. 816.100  Contemporaneous reclamation.

    Reclamation efforts, including but not limited to backfilling, 
grading, topsoil replacement, and revegetation, on all land that is 
disturbed by surface mining activities shall occur as contemporaneously 
as practicable with mining operations, except when such mining 
operations are conducted in accordance with a variance for concurrent 
surface and underground mining activities issued under Sec. 785.18 of 
this chapter.

[48 FR 24652, June 1, 1983, as amended at 56 FR 65635, Dec. 17, 1991]



Sec. 816.101  Backfilling and grading: Time and distance requirements.

    (a) Except as provided in paragraph (b) of this section, rough 
backfilling and grading for surface mining activities shall be completed 
according to one of the following schedules:
    (1) Contour mining. Within 60 days or 1,500 linear feet following 
coal removal;
    (2) Area mining. Within 180 days following coal removal, and not 
more than four spoil ridges behind the pit being worked, the spoil from 
the active pit constituting the first ridge; or
    (3) Other surface mining methods. In accordance with the schedule 
established by the regulatory authority. For States with approved State 
programs, schedules are subject to the State program approval process.
    (b) The regulatory authority may extend the time allowed for rough 
backfilling and grading for the entire permit area or for a specified 
portion of the permit area if the permittee demonstrates in accordance 
with Sec. 780.18(b)(3) of this chapter that additional time is 
necessary.

[56 FR 65635, Dec. 17, 1991]

    Effective Date Note: At 57 FR 33875, July 31, 1992, Sec. 816.101 
was suspended indefinitely, effective Aug. 31, 1992.



Sec. 816.102  Backfilling and grading: General requirements.

    (a) Disturbed areas shall be backfilled and graded to--
    (1) Achieve the approximate original contour, except as provided in 
paragraph (k) of this section;
    (2) Eliminate all highwalls, spoil piles, and depressions, except as 
provided in paragraph (h) (small depressions) and in paragraph 
(k)(3)(iii) (previously mined highwalls) of this section;
    (3) Achieve a postmining slope that does not exceed either the angle 
of repose or such lesser slope as is necessary to achieve a minimum 
long-term static safety factor of 1.3 and to prevent slides;

[[Page 325]]

    (4) Minimize erosion and water pollution both on and off the site; 
and
    (5) Support the approved postmining land use.
    (b) Spoil, except excess spoil disposed of in accordance with 
Sec. Sec. 816.71 through 816.74, shall be returned to the mined-out 
area.
    (c) Spoil and waste materials shall be compacted where advisable to 
ensure stability or to prevent leaching of toxic materials.
    (d) Spoil may be placed on the area outside the mined-out area in 
nonsteep slope areas to restore the approximate original contour by 
blending the spoil into the surrounding terrain if the following 
requirements are met:
    (1) All vegetative and organic material shall be removed from the 
area.
    (2) The topsoil on the area shall be removed, segregated, stored, 
and redistributed in accordance with Sec. 816.22.
    (3) The spoil shall be backfilled and graded on the area in 
accordance with the requirements of this section.
    (e) Disposal of coal processing waste and underground development 
waste in the mined-out area shall be in accordance with Sec. Sec. 
816.81 and 816.83, except that a long-term static safety factor of 1.3 
shall be achieved.
    (f) Exposed coal seams, acid- and toxic-forming materials, and 
combustible materials exposed, used, or produced during mining shall be 
adequately covered with nontoxic and noncombustible material, or 
treated, to control the impact on surface and ground water in accordance 
with Sec. 816.41, to prevent sustained combustion, and to minimize 
adverse effects on plant growth and the approved postmining land use.
    (g) Cut-and-fill terraces may be allowed by the regulatory authority 
where--
    (1) Needed to conserve soil moisture, ensure stability, and control 
erosion on final-graded slopes, if the terraces are compatible with the 
approved postmining land use; or
    (2) Specialized grading, foundation conditions, or roads are 
required for the approved postmining land use, in which case the final 
grading may include a terrace of adequate width to ensure the safety, 
stability, and erosion control necessary to implement the postmining 
land-use plan.
    (h) Small depressions may be constructed if they are needed to 
retain moisture, minimize erosion, create and enhance wildlife habitat, 
or assist revegetation.
    (i) Permanent impoundments may be approved if they meet the 
requirements of Sec. Sec. 816.49 and 816.56 and if they are suitable 
for the approved postmining land use.
    (j) Preparation of final-graded surfaces shall be conducted in a 
manner that minimizes erosion and provides a surface for replacement of 
topsoil that will minimize slippage.
    (k) The postmining slope may vary from the approximate original 
contour when--
    (1) The standards for thin overburden in Sec. 816.104 are met;
    (2) The standards for thick overburden in Sec. 816.105 are met; or
    (3) Approval is obtained from the regulatory authority for--
    (i) Mountaintop removal operations in accordance with Sec. 785.14 
of this chapter;
    (ii) A variance from approximate original contour requirements in 
accordance with Sec. 785.16 of this chapter; or
    (iii) Incomplete elimination of highwalls in previously mined areas 
in accordance with Sec. 816.106.

[48 FR 23368, May 24, 1983, as amended at 48 FR 41734, Sept. 16, 1983]



Sec. 816.104  Backfilling and grading: Thin overburden.

    (a) Definition. Thin overburden means insufficient spoil and other 
waste materials available from the entire permit area to restore the 
disturbed area to its approximate original contour. Insufficient spoil 
and other waste materials occur where the overburden thickness times the 
swell factor, plus the thickness of other available waste materials, is 
less than the combined thickness of the overburden and coal bed prior to 
removing the coal, so that after backfilling and grading the surface 
configuration of the reclaimed area would not:
    (1) Closely resemble the surface configuration of the land prior to 
mining; or

[[Page 326]]

    (2) Blend into and complement the drainage pattern of the 
surrounding terrain.
    (b) Performance standards. Where thin overburden occurs within the 
permit area, the permittee at a minimum shall:
    (1) Use all spoil and other waste materials available from the 
entire permit area to attain the lowest practicable grade, but not more 
than the angle of repose; and
    (2) Meet the requirements of Sec. Sec. 816.102(a)(2) through (j) of 
this part.

[56 FR 65635, Dec. 17, 1991]



Sec. 816.105  Backfilling and grading: Thick overburden.

    (a) Definition. Thick overburden means more than sufficient spoil 
and other waste materials available from the entire permit area to 
restore the disturbed area to its approximate original contour. More 
than sufficient spoil and other waste materials occur where the 
overburden thickness times the swell factor exceeds the combined 
thickness of the overburden and coal bed prior to removing the coal, so 
that after backfilling and grading the surface configuration of the 
reclaimed area would not:
    (1) Closely resemble the surface configuration of the land prior to 
mining; or
    (2) Blend into and complement the drainage pattern of the 
surrounding terrain.
    (b) Performance standards. Where thick overburden occurs within the 
permit area, the permittee at a minimum shall:
    (1) Restore the approximate original contour and then use the 
remaining spoil and other waste materials to attain the lowest 
practicable grade, but not more than the angle of repose;
    (2) Meet the requirements of Sec. Sec. 816. 102(a)(2) through (j) 
of this part; and
    (3) Dispose of any excess spoil in accordance with Sec. Sec. 816.71 
through 816.74 of this part.

[56 FR 65635, Dec. 17, 1991]



Sec. 816.106  Backfilling and grading: Previously mined areas.

    (a) Remining operations on previously mined areas that contain a 
preexisting highwall shall comply with the requirements of Sec. Sec. 
816.102 through 816.107 of this chapter, except as provided in this 
section.
    (b) The requirements of Sec. 816.102(a) (1) and (2) requiring the 
elimination of highwalls shall not apply to remining opertions where the 
volume of all reasonably available spoil is demonstrated in writing to 
the regulatory authority to be insufficient to completely backfill the 
reaffected or enlarged highwall. The highwall shall be eliminated to the 
maximum extent technically practical in accordance with the following 
criteria:
    (1) All spoil generated by the remining operation and any other 
reasonably available spoil shall be used to backfill the area. 
Reasonably available spoil in the immediate vicinity of the remining 
operation shall be included within the permit area.
    (2) The backfill shall be graded to a slope which is compatible with 
the approved postmining land use and which provides adequate drainage 
and long-term stability.
    (3) Any highwall remnant shall be stable and not pose a hazard to 
the public health and safety or to the environment. The operator shall 
demonstrate, to the satisfaction of the regulatory authority, that the 
highwall remnant is stable.
    (4) Spoil placed on the outslope during previous mining operations 
shall not be disturbed if such disturbances will cause instability of 
the remaining spoil or otherwise increase the hazard to the public 
health and safety or to the environment.

[48 FR 41734, Sept. 16, 1983, as amended at 51 FR 41737, Nov. 18, 1986]



Sec. 816.107  Backfilling and grading: Steep slopes.

    (a) Surface mining activities on steep slopes shall be conducted so 
as to meet the requirements of Sec. Sec. 816.102-816.106, and the 
requirements of this section except where mining is conducted on flat or 
gently rolling terrain with an occasional steep slope through which the 
mining proceeds and leaves a plain or predominantly flat area or where 
operations are conducted in accordance with part 824 of this chapter.

[[Page 327]]

    (b) The following materials shall not be placed on the downslope:
    (1) Spoil.
    (2) Waste materials of any type.
    (3) Debris, including that from clearing and grubbing.
    (4) Abandoned or disabled equipment.
    (c) Land above the highwall shall not be disturbed unless the 
regulatory authority finds that this disturbance will facilitate 
compliance with the environmental protection standards of this 
subchapter and the disturbance is limited to that necessary to 
facilitate compliance.
    (d) Woody materials shall not be buried in the backfilled area 
unless the regulatory authority determines that the proposed method for 
placing woody material within the backfill will not deteriorate the 
stable condition of the backfilled area.

[48 FR 23369, May 24, 1983, as amended at 48 FR 41734, Sept. 16, 1983]



Sec. 816.111  Revegetation: General requirements.

    (a) The permittee shall establish on regraded areas and on all other 
disturbed areas except water areas and surface areas of roads that are 
approved as part of the postmining land use, a vegetative cover that is 
in accordance with the approved permit and reclamation plan and that 
is--
    (1) Diverse, effective, and permanent;
    (2) Comprised of species native to the area, or of introduced 
species where desirable and necessary to achieve the approved postmining 
land use and approved by the regulatory authority;
    (3) At least equal in extent of cover to the natural vegetation of 
the area; and
    (4) Capable of stabilizing the soil surface from erosion.
    (b) The reestablished plant species shall--
    (1) Be compatible with the approved postmining land use;
    (2) Have the same seasonal characteristics of growth as the original 
vegetation;
    (3) Be capable of self-regeneration and plant succession;
    (4) Be compatible with the plant and animal species of the area; and
    (5) Meet the requirements of applicable State and Federal seed, 
poisonous and noxious plant, and introduced species laws or regulations.
    (c) The regulatory authority may grant exception to the requirements 
of paragraphs (b) (2) and (3) of this section when the species are 
necessary to achieve a quick-growing, temporary, stabilizing cover, and 
measures to establish permanent vegetation are included in the approved 
permit and reclamation plan.
    (d) When the regulatory authority approves a cropland postmining 
land use, the regulatory authority may grant exception to the 
requirements of paragraphs (a) (1), (3), (b) (2), and (3) of this 
section. The requirements of part 823 of this chapter apply to areas 
identified as prime farmland.

[48 FR 40160, Sept. 2, 1983]



Sec. 816.113  Revegetation: Timing

    Disturbed areas shall be planted during the first normal period for 
favorable planting conditions after replacement of the plant-growth 
medium. The normal period for favorable planting is that planting time 
generally accepted locally for the type of plant materials selected.

[48 FR 40160, Sept. 2, 1983]



Sec. 816.114  Revegetation: Mulching and other soil stabilizing practices.

    Suitable mulch and other soil stabilizing practices shall be used on 
all areas that have been regraded and covered by topsoil or topsoil 
substitutes. The regulatory authority may waive this requirement if 
seasonal, soil, or slope factors result in a condition where mulch and 
other soil stabilizing practices are not necessary to control erosion 
and to promptly establish an effective vegetative cover.

[48 FR 40160, Sept. 2, 1983]



Sec. 816.116  Revegetation: Standards for success.

    (a) Success of revegetation shall be judged on the effectiveness of 
the vegetation for the approved postmining land use, the extent of cover 
compared to the cover occurring in natural vegetation of the area, and 
the general requirements of Sec. 816.111.
    (1) Standards for success and statistically valid sampling 
techniques for

[[Page 328]]

measuring success shall be selected by the regulatory authority, 
described in writing, and made available to the public.
    (2) Standards for success shall include criteria representative of 
unmined lands in the area being reclaimed to evaluate the appropriate 
vegetation parameters of ground cover, production, or stocking. Ground 
cover, production, or stocking shall be considered equal to the approved 
success standard when they are not less than 90 percent of the success 
standard. The sampling techniques for measuring success shall use a 90-
percent statistical confidence interval (i.e., one-sided test with a 
0.10 alpha error).
    (b) Standards for success shall be applied in accordance with the 
approved postmining land use and, at a minimum, the following 
conditions:
    (1) For areas developed for use as grazing land or pasture land, the 
ground cover and production of living plants on the revegetated area 
shall be at least equal to that of a reference area or such other 
success standards approved by the regulatory authority.
    (2) For areas developed for use as cropland, crop production on the 
revegetated area shall be at least equal to that of a reference area or 
such other success standards approved by the regulatory authority.
    (3) For areas to be developed for fish and wildlife habitat, 
recreation, undeveloped land, or forest products, success of vegetation 
shall be determined on the basis of tree and shrub stocking and 
vegetative ground cover. Such parameters are described as follows:
    (i) Minimum stocking and planting arrangements shall be specified by 
the regulatory authority on the basis of local and regional conditions 
and after consultation with and approval by the State agencies 
responsible for the administration of forestry and wildlife programs. 
Consultation and approval may occur on either a programwide or a permit-
specific basis.
    (ii) Trees and shrubs that will be used in determining the success 
of stocking and the adequacy of the plant arrangement shall have utility 
for the approved postmining land use. Trees and shrubs counted in 
determining such success shall be healthy and have been in place for not 
less than two growing seasons. At the time of bond release, at least 80 
percent of the trees and shrubs used to determine such success shall 
have been in place for 60 percent of the applicable minimum period of 
responsibility. The requirements of this section apply to trees and 
shrubs that have been seeded or transplanted and can be met when records 
of woody vegetation planted show that no woody plants were planted 
during the last two growing seasons of the responsibility period and, if 
any replanting of woody plants took place during the responsibility 
period, the total number planted during the last 60 percent of that 
period is less than 20 percent of the total number of woody plants 
required. Any replanting must be by means of transplants to allow for 
adequate accounting of plant stocking. This final accounting may include 
volunteer trees and shrubs of approved species. Volunteer trees and 
shrubs of approved species shall be deemed equivalent to planted 
specimens two years of age or older and can be counted towards success. 
Suckers on shrubby vegetation can be counted as volunteer plants when it 
is evident the shrub community is vigorous and expanding.
    (iii) Vegetative ground cover shall not be less than that required 
to achieve the approved postmining land use.
    (4) For areas to be developed for industrial, commercial, or 
residential use less than 2 years after regrading is completed, the 
vegetative ground cover shall not be less than that required to control 
erosion.
    (5) For areas previously disturbed by mining that were not reclaimed 
to the requirements of this subchapter and that are remined or otherwise 
redisturbed by surface coal mining operations, as a minimum, the 
vegetative ground cover shall be not less than the ground cover existing 
before redisturbance and shall be adequate to control erosion.
    (c)(1) The period of extended responsibility for successful 
revegetation shall begin after the last year of augmented seeding, 
fertilizing, irrigation, or other work, excluding husbandry

[[Page 329]]

practices that are approved by the regulatory authority in accordance 
with paragraph (c)(4) of this section.
    (2) In areas of more than 26.0 inches of annual average 
precipitation, the period of responsibility shall continue for a period 
of not less than:
    (i) Five full years, except as provided in paragraph (c)(2)(ii) of 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 2 
years of the responsibility period, except the first year. Areas 
approved for the other uses identified in paragraph (b) of this section 
shall equal or exceed the applicable success standard during the growing 
season of the last year of the responsibility period.
    (ii) Two full years for lands eligible for remining included in a 
permit for which a finding has been made under Sec. 773.15(m) of this 
chapter. To the extent that the success standards are established by 
paragraph (b)(5) of this section, the lands must equal or exceed the 
standards during the growing season of the last year of the 
responsibility period.
    (3) In areas of 26.0 inches or less average annual precipitation, 
the period of responsibility shall continue for a period of not less 
than:
    (i) Ten full years, except as provided in paragraph (c)(3)(ii) in 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 
two years after year six of the responsibility period. Areas approved 
for the other uses identified in paragraph (b) of this section shall 
equal or exceed the applicable success standard during the growing 
season of the last year of the responsibility period.
    (ii) Five full years for lands eligible for remining included in a 
permit for which a finding has been made under Sec. 773.15(m) of this 
chapter. To the extent that the success standards are established by 
paragraph (b)(5) of this section, the lands must equal or exceed the 
standards during the growing seasons of the last two consecutive years 
of the responsibility period.
    (4) The regulatory authority may approve selective husbandry 
practices, excluding augmented seeding, fertilization, or irrigation, 
provided it obtains prior approval from the Director in accordance with 
Sec. 732.17 of this chapter that the practices are normal husbandry 
practices, without extending the period of responsibility for 
revegetation success and bond liability, if such practices can be 
expected to continue as part of the postmining land use or if 
discontinuance of the practices after the liability period expires will 
not reduce the probability of permanent revegetation success. Approved 
practices shall be normal husbandry practices within the region for 
unmined lands having land uses similar to the approved postmining land 
use of the disturbed area, including such practices as disease, pest, 
and vermin control; and any pruning, reseeding, and transplanting 
specifically necessitated by such actions.

[48 FR 40160, Sept. 2, 1983, as amended at 53 FR 34642, Sept. 7, 1988; 
60 FR 58492, Nov. 27, 1995; 71 FR 51705, Aug. 30, 2006; 73 FR 67630, 
Nov. 14, 2008]



Sec. 816.131  Cessation of operations: Temporary.

    (a) Each person who conducts surface mining activities shall 
effectively secure surface facilities in areas in which there are no 
current operations, but in which operations are to be resumed under an 
approved permit. Temporary abandonment shall not relieve a person of 
their obligation to comply with any provisions of the approved permit.
    (b) Before temporary cessation of mining and reclamation operations 
for a period of thirty days or more, or as soon as it is known that a 
temporary cessation will extend beyond 30 days, persons who conduct 
surface mining activities shall submit to the regulatory authority a 
notice of intention to cease or abandon mining and reclamation 
operations. This notice shall include a statement of the exact number of 
acres which will have been affected in the permit area, prior to such 
temporary cessation, the extent and kind of reclamation of those areas 
which will have been accomplished,

[[Page 330]]

and identification of the backfilling, regrading, revegetation, 
environmental monitoring, and water treatment activities that will 
continue during the temporary cessation.



Sec. 816.132  Cessation of operations: Permanent.

    (a) Persons who cease surface mining activities permanently shall 
close or backfill or otherwise permanently reclaim all affected areas, 
in accordance with this chapter and the permit approved by the 
regulatory authority.
    (b) All underground openings, equipment, structures, or other 
facilities not required for monitoring, unless approved by the 
regulatory authority as suitable for the postmining land use or 
environmental monitoring, shall be removed and the affected land 
reclaimed.



Sec. 816.133  Postmining land use.

    (a) General. All disturbed areas shall be restored in a timely 
manner to conditions that are capable of supporting--
    (1) The uses they were capable of supporting before any mining; or
    (2) Higher or better uses.
    (b) Determining premining uses of land. The premining uses of land 
to which the postmining land use is compared shall be those uses which 
the land previously supported, if the land has not been previously mined 
and has been properly managed. The postmining land use for land that has 
been previously mined and not reclaimed shall be judged on the basis of 
the land use that existed prior to any mining: Provided that, if the 
land cannot be reclaimed to the land use that existed prior to any 
mining because of the previously mined condition, the postmining land 
use shall be judged on the basis of the highest and best use that can be 
achieved which is compatible with surrounding areas and does not require 
the disturbance of areas previously unaffected by mining.
    (c) Criteria for alternative postmining land uses. Higher or better 
uses may be approved by the regulatory authority as alternative 
postmining land uses after consultation with the landowner or the land 
management agency having jurisdiction over the lands, if the proposed 
uses meet the following criteria:
    (1) There is a reasonable likelihood for achievement of the use.
    (2) The use does not present any actual or probable hazard to public 
health or safety, or threat of water diminution or pollution.
    (3) The use will not--
    (i) Be impractical or unreasonable;
    (ii) Be inconsistent with applicable land use policies or plans;
    (iii) Involve unreasonable delay in implementation; or
    (iv) Cause or contribute to violation of Federal, State, or local 
law.
    (d) Approximate original contour: Criteria for variance. Surface 
coal mining operations that meet the requirements of this paragraph may 
be conducted under a variance from the requirement to restore disturbed 
areas to their approximate original contour, if the following 
requirements are satisfied:
    (1) The regulatory authority grants the variance under a permit 
issued in accordance with Sec. 785.16 of this chapter.
    (2) The alternative postmining land use requirements of paragraph 
(c) of this section are met.
    (3) All applicable requirements of the Act and the regulatory 
program, other than the requirement to restore disturbed areas to their 
approximate original contour, are met.
    (4) After consultation with the appropriate land use planning 
agencies, if any, the potential use is shown to constitute an equal or 
better economic or public use.
    (5) The proposed use is designed and certified by a qualified 
registered professional engineer in conformance with professional 
standards established to assure the stability, drainage, and 
configuration necessary for the intended use of the site.
    (6) After approval, where required, of the appropriate State 
environmental agencies, the watershed of the permit and adjacent areas 
is shown to be improved.
    (7) The highwall is completely backfilled with spoil material, in a 
manner which results in a static factor of safety of at least 1.3, using 
standard geotechnical analysis.
    (8) Only the amount of spoil as is necessary to achieve the 
postmining land use, ensure the stability of spoil retained on the 
bench, and meet all other

[[Page 331]]

requirements of the Act and this chapter is placed off the mine bench. 
All spoil not retained on the bench shall be placed in accordance with 
Sec. Sec. 816.71-816.74 of this chapter.
    (9) The surface landowner of the permit area has knowingly 
requested, in writing, that a variance be granted, so as to render the 
land, after reclamation, suitable for an industrial, commercial, 
residential, or public use (including recreational facilities).
    (10) Federal, State, and local government agencies with an interest 
in the proposed land use have an adequate period in which to review and 
comment on the proposed use.

[48 FR 39904, Sept. 1, 1983]



Sec. 816.150  Roads: general.

    (a) Road classification system. (1) Each road, as defined in Sec. 
701.5 of this chapter, shall be classified as either a primary road or 
an ancillary road.
    (2) A primary road is any road which is--
    (i) Used for transporting coal or spoil;
    (ii) Frequently used for access or other purposes for a period in 
excess of six months; or
    (iii) To be retained for an approved postmining land use.
    (3) An ancillary road is any road not classified as a primary road.
    (b) Performance standards. Each road shall be located, designed, 
constructed, reconstructed, used, maintained, and reclaimed so as to:
    (1) Control or prevent erosion, siltation, and the air pollution 
attendant to erosion, including road dust as well as dust occurring on 
other exposed surfaces, by measures such as vegetating, watering, using 
chemical or other dust suppressants, or otherwise stabilizing all 
exposed surfaces in accordance with current, prudent engineering 
practices;
    (2) Control or prevent damage to fish, wildlife, or their habitat 
and related environmental values;
    (3) Control or prevent additional contributions of suspended solids 
to stream flow or runoff outside the permit area;
    (4) Neither cause nor contribute to, directly or indirectly, the 
violation of State or Federal water quality standards applicable to 
receiving waters;
    (5) Refrain from seriously altering the normal flow of water in 
streambeds or drainage channels;
    (6) Prevent or control damage to public or private property, 
including the prevention or mitigation of adverse effects on lands 
within the boundaries of units of the National Park System, the National 
Wildlife Refuge System, the National System of Trails, the National 
Wilderness Preservation System, the Wild and Scenic Rivers System, 
including designated study rivers, and National Recreation Areas 
designated by Act of Congress;
    (7) Use nonacid- and nontoxic-forming substances in road surfacing.
    (c) Design and construction limits and establishment of design 
criteria. To ensure environmental protection appropriate for their 
planned duration and use, including consideration of the type and size 
of equipment used, the design and construction or reconstruction of 
roads shall incorporate appropriate limits for grade, width, surface 
materials, surface drainage control, culvert placement, and culvert 
size, in accordance with current, prudent engineering practices, and any 
necessary design criteria established by the regulatory authority.
    (d) Location. (1) No part of any road shall be located in the 
channel of an intermittent or perennial stream unless specifically 
approved by the regulatory authority in accordance with applicable 
Sec. Sec. 816.41 through 816.43 and 816.57 of this chapter.
    (2) Roads shall be located to minimize downstream sedimentation and 
flooding.
    (e) Maintenance. (1) A road shall be maintained to meet the 
performance standards of this part and any additional criteria specified 
by the regulatory authority.
    (2) A road damaged by a catastrophic event, such as a flood or 
earthquake, shall be repaired as soon as is practicable after the damage 
has occurred.
    (f) Reclamation. A road not to be retained under an approved 
postmining land use shall be reclaimed in accordance with the approved 
reclamation plan as soon as practicable after it is no longer needed for 
mining and reclamation operations. This reclamation shall include:

[[Page 332]]

    (1) Closing the road to traffic;
    (2) Removing all bridges and culverts unless approved as part of the 
postmining land use;
    (3) Removing or otherwise disposing of road-surfacing materials that 
are incompatible with the postmining land use and revegetation 
requirements;
    (4) Reshaping cut and fill slopes as necessary to be compatible with 
the postmining land use and to complement the natural drainage pattern 
of the surrounding terrain;
    (5) Protecting the natural drainage patterns by installing dikes or 
cross drains as necessary to control surface runoff and erosion; and
    (6) Scarifying or ripping the roadbed; replacing topsoil or 
substitute material, and revegetating disturbed surfaces in accordance 
with Sec. Sec. 816.22 and 816.111 through 816.116 of this chapter.

[53 FR 45212, Nov. 8, 1988]



Sec. 816.151  Primary roads.

    Primary roads shall meet the requirements of section 816.150 and the 
additional requirements of this section.
    (a) Certification. The construction or reconstruction of primary 
roads shall be certified in a report to the regulatory authority by a 
qualified registered professional engineer, or in any State which 
authorizes land surveyors to certify the construction or reconstruction 
of primary roads, a qualified registered professional land surveyor with 
experience in the design and construction of roads. The report shall 
indicate that the primary road has been constructed or reconstructed as 
designed and in accordance with the approved plan.
    (b) Safety Factor. Each primary road embankment shall have a minimum 
static factor of 1.3 or meet the requirements established under Sec. 
780.37(c) of this chapter.
    (c) Location. (1) To minimize erosion, a primary road shall be 
located, insofar as is practicable, on the most stable available 
surface.
    (2) Fords or perennial or intermittent streams by primary roads are 
prohibited unless they are specifically approved by the regulatory 
authority as temporary routes during periods of road construction.
    (d) Drainage control. In accordance with the approved plan--
    (1) Each primary road shall be constructed or reconstructed, and 
maintained to have adequate drainage control, using structures such as, 
but not limited to bridges, ditches, cross drains, and ditch relief 
drains. The drainage control system shall be designed to safely pass the 
peak runoff from a 10-year, 6-hour precipitation event, or greater event 
as specified by the regulatory authority;
    (2) Drainage pipes and culverts shall be installed as designed, and 
maintained in a free and operating condition and to prevent or control 
erosion at inlets and outlets;
    (3) Drainage ditches shall be constructed and maintained to prevent 
uncontrolled drainage over the road surface and embankment;
    (4) Culverts shall be installed and maintained to sustain the 
vertical soil pressure, the passive resistance of the foundation, and 
the weight of vehicles using the road;
    (5) Natural stream channels shall not be altered or relocated 
without the prior approval of the regulatory authority in accordance 
with applicable Sec. 816.41 through 816.43 and 816.57 of this chapter; 
and
    (6) Except as provided in paragraph (c)(2) of this section, 
structures for perennial or intermittent stream channel crossings shall 
be made using bridges, culverts, low-water crossings, or other 
structures designed, constructed, and maintained using current, prudent 
engineering practices. The regulatory authority shall ensure that low-
water crossings are designed, constructed, and maintained to prevent 
erosion of the structure or streambed and additional contributions of 
suspended solids to steamflow.
    (e) Surfacing. Primary roads shall be surfaced with material 
approved by the regulatory authority as being sufficiently durable for 
the anticipated volume of traffic and the weight and speed of vehicles 
using the road.

[53 FR 45212, Nov. 8, 1988]



Sec. 816.180  Utility installations.

    All surface coal mining operations shall be conducted in a manner 
which

[[Page 333]]

minimizes damage, destruction, or disruption of services provided by 
oil, gas, and water wells; oil, gas, and coal-slurry pipelines; 
railroads; electric and telephone lines; and water and sewage lines 
which pass over, under, or through the permit area, unless otherwise 
approved by the owner of those facilities and the regulatory authority.

[48 FR 20401, May 5, 1983]



Sec. 816.181  Support facilities.

    (a) Support facilities shall be operated in accordance with a permit 
issued for the mine or coal preparation operation to which it is 
incident or from which its operation results.
    (b) In addition to the other provisions of this part, support 
facilities shall be located, maintained, and used in a manner that--
    (1) Prevents or controls erosion and siltation, water pollution, and 
damage to public or private property; and
    (2) To the extent possible using the best technology currently 
available--
    (i) Minimizes damage to fish, wildlife, and related environmental 
values; and
    (ii) Minimizes additional contributions of suspended solids to 
streamflow or runoff outside the permit area. Any such contributions 
shall not be in excess of limitations of State or Federal law.

[48 FR 20401, May 5, 1983]



Sec. 816.200  Interpretative rules related to general performance standards.

    The following interpretations of rules promulgated in part 816 of 
this chapter have been adopted by the Office of Surface Mining 
Reclamation and Enforcement.
    (a)-(b) [Reserved]
    (c) Interpretation of Sec. 816.22(e)--Topsoil Removal. (1) Results 
of physical and chemical analyses of overburden and topsoil to 
demonstrate that the resulting soil medium is equal to or more suitable 
for sustaining revegetation than the available topsoil, provided that 
trials, and tests are certified by an approved laboratory in accordance 
with 30 CFR 816.22(e)(1)(ii), may be obtained from any one or a 
combination of the following sources:
    (i) U.S. Department of Agriculture Soil Conservation Service 
published data based on established soil series;
    (ii) U.S. Department of Agriculture Soil Conservation Service 
Technical Guides;
    (iii) State agricultural agency, university, Tennessee Valley 
Authority, Bureau of Land Management or U.S. Department of Agriculture 
Forest Service published data based on soil series properties and 
behavior, or
    (iv) Results of physical and chemical analyses, field site trials, 
or greenhouse tests of the topsoil and overburden materials (soil 
series) from the permit area.
    (2) If the operator demonstrates through soil survey or other data 
that the topsoil and unconsolidated material are insufficient and 
substitute materials will be used, only the substitute materials must be 
analyzed in accordance with 30 CFR 816.22(e)(1)(i).

(Secs. 501, 502, 504, 508, 515, 516, Pub. L. 95-87, 91 Stat. 467, 468, 
471, 478, 492, 496 (30 U.S.C. 1251, 1252, 1254, 1258, 1265, 1266))

[45 FR 26000, Apr. 16, 1980 and 45 FR 39447, June 10, 1980, as amended 
at 45 FR 73946, Nov. 7, 1980]



PART 817_PERMANENT PROGRAM PERFORMANCE STANDARDS_UNDERGROUND MINING 

ACTIVITIES--Table of Contents



Sec.
817.1 Scope.
817.2 Objectives.
817.10 Information collection.
817.11 Signs and markers.
817.13 Casing and sealing of exposed underground openings: General 
          requirements.
817.14 Casing and sealing of underground openings: Temporary.
817.15 Casing and sealing of underground openings: Permanent.
817.22 Topsoil and subsoil.
817.41 Hydrologic-balance protection.
817.42 Hydrologic balance: Water quality standards and effluent 
          limitations.
817.43 Diversions.
817.45 Hydrologic balance: Sediment control measures.
817.46 Hydrologic balance: Siltation structures.
817.47 Hydrologic balance: Discharge structures.
817.49 Impoundments.

[[Page 334]]

817.56 Postmining rehabilitation of sedimentation ponds, diversions, 
          impoundments, and treatment facilities.
817.57 Hydrologic balance: Surface activities in or adjacent to 
          perennial or intermittent streams.
817.59 Coal recovery.
817.61 Use of explosives: General requirements.
817.62 Use of explosives: Preblasting survey.
817.64 Use of explosives: General performance standards.
817.66 Use of explosives: Blasting signs, warnings, and access controls.
817.67 Use of explosives: Control of adverse effects.
817.68 Use of explosives: Records of blasting operations.
817.71 Disposal of excess spoil: General requirements.
817.72 Disposal of excess spoil: Valley fill/head-of-hollow fills.
817.73 Disposal of excess spoil: Durable rock fills.
817.74 Disposal of excess spoil: Preexisting benches.
817.81 Coal mine waste: General requirements.
817.83 Coal mine waste: Refuse piles.
817.84 Coal mine waste: Impounding structures.
817.87 Coal mine waste: Burning and burned waste utilization.
817.89 Disposal of noncoal mine wastes.
817.95 Stabilization of surface areas.
817.97 Protection of fish, wildlife and related environmental values.
817.99 Slides and other damage.
817.100 Contemporaneous reclamation.
817.102 Backfilling and grading: General requirements.
817.106 Backfilling and grading: Previously mined areas.
817.107 Backfilling and grading: Steep slopes.
817.111 Revegetation: General requirements.
817.113 Revegetation: Timing.
817.114 Revegetation: Mulching and other soil stabilizing practices.
817.116 Revegetation: Standards for success.
817.121 Subsidence control.
817.122 Subsidence control: Public notice.
817.131 Cessation of operations: Temporary.
817.132 Cessation of operations: Permanent.
817.133 Postmining land use.
817.150 Roads: General.
817.151 Primary roads.
817.180 Utility installations.
817.181 Support facilities.
817.200 Interpretative rules related to general performance standards.

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

    Source: 44 FR 15422, Mar. 13, 1979, unless otherwise noted.



Sec. 817.1  Scope.

    This part sets forth the minimum environmental protection 
performance standards to be adopted and implemented under regulatory 
programs for underground mining activities.



Sec. 817.2  Objectives.

    This part is intended to ensure that all underground mining 
activities are conducted in a manner which preserves and enhances 
environmental and other values in accordance with the Act.



Sec. 817.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
this part and assigned clearance number 1029-0047. Collection of this 
information is required under section 516 of SMCRA, which provides that 
permittees conducting underground coal mining operations must meet all 
applicable performance standards of the regulatory program approved 
under the Act. The regulatory authority uses the information collected 
to ensure that surface mining activities are conducted in compliance 
with the requirements of the applicable regulatory program. Persons 
intending to conduct such operations must respond to obtain a benefit. A 
Federal agency may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

[73 FR 75884, Dec. 12, 2008]



Sec. 817.11  Signs and markers.

    (a) Specifications. Signs and markers required under this part 
shall--
    (1) Be posted, maintained, and removed by the person who conducts 
the underground mining activities;
    (2) Be of a uniform design throughout the activities that can be 
easily seen and read;
    (3) Be made of durable material; and
    (4) Conform to local laws and regulations.
    (b) Duration of maintenance. Signs and markers shall be maintained 
during all activities to which they pertain.

[[Page 335]]

    (c) Mine and permit identification signs. (1) Identification signs 
shall be displayed at each point of access from public roads to areas of 
surface operations and facilities on permit areas for underground mining 
activities.
    (2) Signs will show the name, business address, and telephone number 
of the person who conducts underground mining activities and the 
identification number of the current regulatory program permit 
authorizing underground mining activities.
    (3) Signs shall be retained and maintained until after the release 
of all bonds for the permit area.
    (d) Perimeter markers. Each person who conducts underground mining 
activities shall clearly mark the perimeter of all areas affected by 
surface operations or facilities before beginning mining activities.
    (e) Buffer markers. The boundaries of any buffer to be maintained 
between surface activities and a perennial or intermittent stream in 
accordance with Sec. Sec. 784.28 and 817.57 of this chapter must be 
clearly marked to avoid disturbance by surface operations and 
facilities.
    (f) Topsoil markers. Where topsoil or other vegetation-supporting 
material is segregated and stockpiled as required under Sec. 817.22, 
the stockpiled material shall be clearly marked.

[44 FR 15422, Mar. 13, 1979, as amended at 48 FR 9809, Mar. 8, 1983; 48 
FR 44781, Sept. 30, 1983; 73 FR 75884, Dec. 12, 2008]



Sec. 817.13  Casing and sealing of exposed underground openings: General 

requirements.

    Each exploration hole, other drillhole or borehole, shaft, well, or 
other exposed underground opening shall be cased, lined, or otherwise 
managed as approved by the regulatory authority to prevent acid or other 
toxic drainage from entering ground and surface waters, to minimize 
disturbance to the prevailing hydrologic balance and to ensure the 
safety of people, livestock, fish and wildlife, and machinery in the 
permit area and adjacent area. Each exploration hole, drill hole or 
borehole or well that is uncovered or exposed by mining activities 
within the permit area shall be permanently closed, unless approved for 
water monitoring or otherwise managed in a manner approved by the 
regulatory authority. Use of a drilled hole or monitoring well as a 
water well must meet the provisions of Sec. 817.41 of this part. This 
section does not apply to holes drilled and used for blasting, in the 
area affected by surface operations.

[44 FR 15422, Mar. 13, 1979, as amended at 48 FR 14822, Apr. 5, 1983; 48 
FR 43992, Sept. 26, 1983]



Sec. 817.14  Casing and sealing of underground openings: Temporary.

    (a) Each mine entry which is temporarily inactive, but has a further 
projected useful service under the approved permit application, shall be 
protected by barricades or other covering devices, fenced, and posted 
with signs, to prevent access into the entry and to identify the 
hazardous nature of the opening. These devices shall be periodically 
inspected and maintained in good operating condition by the person who 
conducts the underground mining activities.
    (b) Each exploration hole, other drill hole or borehole, shaft, 
well, and other exposed underground opening which has been identified in 
the approved permit application for use to return underground 
development waste, coal processing waste or water to underground 
workings, or to be used to monitor ground water conditions, shall be 
temporarily sealed until actual use.



Sec. 817.15  Casing and sealing of underground openings: Permanent.

    When no longer needed for monitoring or other use approved by the 
regulatory authority upon a finding of no adverse environmental or 
health and safety effects, or unless approved for transfer as a water 
well under Sec. 817.41, each shaft, drift, adit, tunnel, exploratory 
hole, entryway or other opening to the surface from underground shall be 
capped, sealed, backfilled, or otherwise properly managed, as required 
by the regulatory authority in accordance with Sec. 817.13 and 
consistent with 30 CFR 75.1711. Permanent closure measures shall be 
designed to prevent access to the mine workings by people, livestock, 
fish and wildlife, machinery and to keep acid or

[[Page 336]]

other toxic drainage from entering ground or surface waters.

[44 FR 15422, Mar. 13, 1979, as amended at 48 FR 43992, Sept. 26, 1983; 
75 FR 60275, Sept. 29, 2010]



Sec. 817.22  Topsoil and subsoil.

    (a) Removal. (1)(i) All topsoil shall be removed as a separate layer 
from the area to be disturbed, and segregated.
    (ii) Where the topsoil is of insufficient quantity or of poor 
quality for sustaining vegetation, the materials approved by the 
regulatory authority in accordance with paragraph (b) of this section 
shall be removed as a separate layer from the area to be disturbed, and 
segregated.
    (2) If topsoil is less than 6 inches thick, the operator may remove 
the topsoil and the unconsolidated materials immediately below the 
topsoil and treat the mixture as topsoil.
    (3) The regulatory authority may choose not to require the removal 
of topsoil for minor disturbances which--
    (i) Occur at the site of small structures, such as power poles, 
signs, or fence lines; or
    (ii) Will not destroy the existing vegetation and will not cause 
erosion.
    (4) Timing. All materials to be removed under this section shall be 
removed after the vegetative cover that would interfere with its salvage 
is cleared from the area to be disturbed, but before any drilling, 
blasting, mining, or other surface disturbance takes place.
    (b) Substitutes and supplements. Selected overburden materials may 
be substituted for, or used as a supplement to, topsoil if the operator 
demonstrates to the regulatory authority that the resulting soil medium 
is equal to, or more suitable for sustaining vegetation than, the 
existing topsoil, and the resulting soil medium is the best available in 
the permit area to support revegetation.
    (c) Storage. (1) Materials removed under Paragraph (a) of this 
section shall be segregated and stockpiled when it is impractical to 
redistribute such materials promptly on regraded areas.
    (2) Stockpiled materials shall--
    (i) Be selectively placed on a stable site within the permit area;
    (ii) Be protected from contaminants and unnecessary compaction that 
would interfere with revegetation;
    (iii) Be protected from wind and water erosion through prompt 
establishment and maintenance of an effective, quick growing vegetative 
cover or through other measures approved by the regulatory authority; 
and
    (iv) Not be moved until required for redistribution unless approved 
by the regulatory authority.
    (3) Where long-term surface disturbances will result from facilities 
such as support facilities and preparation plants and where stockpiling 
of materials removed under paragraph (a)(1) of this section would be 
detrimental to the quality or quantity of those materials, the 
regulatory authority may approve the temporary distribution of the soil 
materials so removed to an approved site within the permit area to 
enhance the current use of that site until needed for later reclamation, 
provided that--
    (i) Such action will not permanently diminish the capability of the 
topsoil of the host site; and
    (ii) The material will be retained in a condition more suitable for 
redistribution than if stockpiled.
    (d) Redistribution. (1) Topsoil materials and topsoil substitutes 
and supplements removed under paragraphs (a) and (b) of this section 
shall be redistributed in a manner that--
    (i) Achieves an approximately uniform, stable thickness when 
consistent with the approved postmining land use, contours, and surface-
water drainage systems. Soil thickness may also be varied to the extent 
such variations help meet the specific revegetation goals identified in 
the permit;
    (ii) Prevents excess compaction of the materials; and
    (iii) Protects the materials from wind and water erosion before and 
after seeding and planting.
    (2) Before redistribution of the material removed under paragraph 
(a) of this section, the regraded land shall be treated if necessary to 
reduce potential slippage of the redistributed material and to promote 
root penetration. If no

[[Page 337]]

harm will be caused to the redistributed material and reestablished 
vegetation, such treatment may be conducted after such material is 
replaced.
    (3) The regulatory authority may choose not to require the 
redistribution of topsoil or topsoil substitutes on the approved 
postmining embankments of permanent impoundments or of roads if it 
determines that--
    (i) Placement of topsoil or topsoil substitutes on such embankments 
is inconsistent with the requirement to use the best technology 
currently available to prevent sedimentation, and
    (ii) Such embankments will be otherwise stabilized.
    (4) Nutrients and soil amendments. Nutrients and soil amendments 
shall be applied to the initially redistributed material when necessary 
to establish the vegetative cover.
    (e) Subsoil segregation. The regulatory authority may require that 
the B horizon, C horizon, or other underlying strata, or portions 
thereof, be removed and segregated, stockpiled, and redistributed as 
subsoil in accordance with the requirements of paragraphs (c) and (d) of 
this section if it finds that such subsoil layers are necessary to 
comply with the revegetation requirements of Sec. Sec. 817.111, 
817.113, 817.114, and 817.116 of this chapter.

[48 FR 22101, May 16, 1983, as amended at 71 FR 51706, Aug. 30, 2006]



Sec. 817.41  Hydrologic-balance protection.

    (a) General. All underground mining and reclamation activities shall 
be conducted to minimize disturbance of the hydrologic balance within 
the permit and adjacent areas, to prevent material damage to the 
hydrologic balance outside the permit area, and to support approved 
postmining land uses in accordance with the terms and conditions of the 
approved permit and the performance standards of this part. The 
regulatory authority may require additional preventative, remedial, or 
monitoring measures to assure that material damage to the hydrologic 
balance outside the permit area is prevented. Mining and reclamation 
practices that minimize water pollution and changes in flow shall be 
used in preference to water treatment.
    (b) Ground-water protection. In order to protect the hydrologic 
balance underground mining activities shall be conducted according to 
the plan approved under Sec. 784.14(g) of this chapter and the 
following.
    (1) Ground-water quality shall be protected by handling earth 
materials and runoff in a manner that minimizes acidic, toxic, or other 
harmful infiltration to ground-water systems and by managing excavations 
and other disturbances to prevent or control the discharge of pollutants 
into the ground water.
    (c) Ground-water monitoring. (1) Ground-water monitoring shall be 
conducted according to the ground-water monitoring plan approved under 
Sec. 784.14(h) of this chapter. The regulatory authority may require 
additional monitoring when necessary.
    (2) Ground-water monitoring data shall be submitted every 3 months 
to the regulatory authority or more frequently as prescribed by the 
regulatory authority. Monitoring reports shall include analytical 
results from each sample taken during the reporting period. When the 
analysis of any ground-water sample indicates noncompliance with the 
permit conditions, then the operator shall promptly notify the 
regulatory authority and immediately take the actions provided for in 
Sec. Sec. 773.17(e) and 784.14(g) of this chapter.
    (3) Ground-water monitoring shall proceed through mining and 
continue during reclamation until bond release. Consistent with the 
procedures of Sec. 774.13 of this chapter, the regulatory authority may 
modify the monitoring requirements including the parameters covered and 
the sampling frequency if the operator demonstrates, using the 
monitoring data obtained under this paragraph, that--
    (i) The operation has minimized disturbance to the prevailing 
hydrologic balance in the permit and adjacent areas and prevented 
material damage to the hydrologic balance outside the permit area; water 
quantity and quality are suitable to support approved postmining land 
uses; or
    (ii) Monitoring is no longer necessary to achieve the purposes set 
forth in the

[[Page 338]]

monitoring plan approved under Sec. 784.14(h) of this chapter.
    (4) Equipment, structures, and other devices used in conjunction 
with monitoring the quality and quantity of ground water onsite and 
offsite shall be properly installed, maintained, and operated and shall 
be removed by the operator when no longer needed.
    (d) Surface-water protection. In order to protect the hydrologic 
balance, underground mining activities shall be conducted according to 
the plan approved under Sec. 784.14(g) of this chapter, and the 
following:
    (1) Surface-water quality shall be protected by handling earth 
materials, ground-water discharges, and runoff in a manner that 
minimizes the formation of acidic or toxic drainage; prevents, to the 
extent possible using the best technology currently available, 
additional contribution of suspended solids to streamflow outside the 
permit area; and otherwise prevent water pollution. If drainage control, 
restabilization and revegetation of disturbed areas, diversion of 
runoff, mulching, or other reclamation and remedial practices are not 
adequate to meet the requirements of this section and Sec. 817.42, the 
operator shall use and maintain the necessary water-treatment facilities 
or water quality controls.
    (2) Surface-water quantity and flow rates shall be protected by 
handling earth materials and runoff in accordance with the steps 
outlined in the plan approved under Sec. 784.14(g) of this chapter.
    (e) Surface-water monitoring. (1) Surface-water monitoring shall be 
conducted according to the surface-water monitoring plan approved under 
Sec. 784.14(i) of this chapter. The regulatory authority may require 
additional monitoring when necessary.
    (2) Surface-water monitoring data shall be submitted every 3 months 
to the regulatory authority or more frequently as prescribed by the 
regulatory authority. Monitoring reports shall include analytical 
results from each sample taken during the reporting period. When the 
analysis of any surface-water sample indicates noncompliance with the 
permit conditions, the operator shall promptly notify the regulatory 
authority and immediately take the actions provided for in Sec. Sec. 
773.17(e) and 784.14(g) of this chapter. The reporting requirements of 
this paragraph do not exempt the operator from meeting any National 
Pollutant Discharge Elimination System (NPDES) reporting requirements.
    (3) Surface-water monitoring shall proceed through mining and 
continue during reclamation until bond release. Consistent with Sec. 
774.13 of this chapter, the regulatory authority may modify the 
monitoring requirements, except those required by the NPDES permitting 
authority, including the parameters covered and sampling frequency if 
the operator demonstrates, using the monitoring data obtained under this 
paragraph, that--
    (i) The operation has minimized disturbance to the hydrologic 
balance in the permit and adjacent areas and prevented material damage 
to the hydrologic balance outside the permit area; water quantity and 
quality are suitable to support approved postmining land uses; and
    (ii) Monitoring is no longer necessary to achieve the purposes set 
forth in the monitoring plan approved under Sec. 784.14(i) of this 
chapter.
    (4) Equipment, structures, and other devices used in conjunction 
with monitoring the quality and quantity of surface water onsite and 
offsite shall be properly installed, maintained, and operated and shall 
be removed by the operator when no longer needed.
    (f) Acid- and toxic-forming materials. (1) Drainage from acid- and 
toxic-forming materials and underground development waste into surface 
water and ground water shall be avoided by--
    (i) Identifying and burying and/or treating, when necessary, 
materials which may adversely affect water quality, or be detrimental to 
vegetation or to public health and safety if not buried and/or treated, 
and
    (ii) Storing materials in a manner that will protect surface water 
and ground water by preventing erosion, the formation of polluted 
runoff, and the infiltration of polluted water. Storage shall be limited 
to the period until burial and/or treatment first become feasible, and 
so long as storage will not result in any risk of water pollution or 
other environmental damage.

[[Page 339]]

    (2) Storage, burial or treatment practices shall be consistent with 
other material handling and disposal provisions of this chapter.
    (g) Transfer of wells. Before final release of bond, exploratory or 
monitoring wells shall be sealed in a safe and environmentally sound 
manner in accordance with Sec. Sec. 817.13 and 817.15. With the prior 
approval of the regulatory authority, wells may be transferred to 
another party for further use. However, at a minimum, the conditions of 
such transfer shall comply with State and local laws and the permittee 
shall remain responsible for the proper management of the well until 
bond release in accordance with Sec. Sec. 817.13 to 817.15.
    (h) Discharges into an underground mine. (1) Discharges into an 
underground mine are prohibited, unless specifically approved by the 
regulatory authority after a demonstration that the discharge will--
    (i) Minimize disturbance to the hydrologic balance on the permit 
area, prevent material damage outside the permit area and otherwise 
eliminate public hazards resulting from underground mining activities;
    (ii) Not result in a violation of applicable water quality standards 
or effluent limitations;
    (iii) Be at a known rate and quality which shall meet the effluent 
limitations of Sec. 817.42 for pH and total suspended solids, except 
that the pH and total suspended solids limitations may be exceeded, if 
approved by the regulatory authority; and
    (iv) Meet with the approval of the Mine Safety and Health 
Administration.
    (2) Discharges shall be limited to the following:
    (i) water;
    (ii) Coal-processing waste;
    (iii) Fly ash from a coal-fired facility;
    (iv) Sludge from an acid-mine-drainage treatment facility;
    (v) Flue-gas desulfurization sludge;
    (vi) Inert materials used for stabilizing underground mines; and
    (vii) Underground mine development wastes.
    (3) Water from one underground mine may be diverted into other 
underground workings according to the requirements of this section.
    (i) Gravity discharges from underground mines. (1) Surface entries 
and accesses to underground workings shall be located and managed to 
prevent or control gravity discharge of water from the mine. Gravity 
discharges of water from an underground mine, other than a drift mine 
subject to paragraph (i)(2) of this section, may be allowed by the 
regulatory authority if it is demonstrated that the untreated or treated 
discharge complies with the performance standards of this part and any 
additional NPDES permit requirements.
    (2) Notwithstanding anything to the contrary in paragraph (i)(1) of 
this section, the surface entries and accesses of drift mines first used 
after the implementation of a State, Federal, or Federal Lands Program 
and located in acid-producing or iron-producing coal seams shall be 
located in such a manner as to prevent any gravity discharge from the 
mine.
    (j) Drinking, domestic or residential water supply. The permittee 
must promptly replace any drinking, domestic or residential water supply 
that is contaminated, diminished or interrupted by underground mining 
activities conducted after October 24, 1992, if the affected well or 
spring was in existence before the date the regulatory authority 
received the permit application for the activities causing the loss, 
contamination or interruption. The baseline hydrologic information 
required in Sec. Sec. 780.21 and 784.14 of this chapter and the 
geologic information concerning baseline hydrologic conditions required 
in Sec. Sec. 780.21 and 784.22 of this chapter will be used to 
determine the impact of mining activities upon the water supply.

[48 FR 43992, Sept. 26, 1983, as amended at 52 FR 45924, Dec. 2, 1987; 
60 FR 16749, Mar. 31, 1995]



Sec. 817.42  Hydrologic balance: Water quality standards and effluent 

limitations.

    Discharges of water from areas disturbed by underground mining 
activities shall be made in compliance with all applicable State and 
Federal water quality laws and regulations and with the effluent 
limitations for coal mining

[[Page 340]]

promulgated by the U.S. Environmental Protection Agency set forth in 40 
CFR part 434.

[47 FR 47222, Oct. 22, 1982, as amended at 48 FR 44051, Sept. 26, 1983]



Sec. 817.43  Diversions.

    (a) General requirements. (1) With the approval of the regulatory 
authority, any flow from mined areas abandoned before May 3, 1978, and 
any flow from undisturbed areas or reclaimed areas, after meeting the 
criteria of Sec. 817.46 for siltation structure removal, may be 
diverted from disturbed areas by means of temporary or permanent 
diversions. All diversions shall be designed to minimize adverse impacts 
to the hydrologic balance within the permit and adjacent areas, to 
prevent material damage outside the permit area and to assure the safety 
of the public. Diversions shall not be used to divert water into 
underground mines without approval of the regulatory authority in 
accordance with Sec. 817.41(h).
    (2) The diversion and its appurtenant structures shall be designed, 
located, constructed, and maintained to--
    (i) Be stable;
    (ii) Provide protection against flooding and resultant damage to 
life and property;
    (iii) Prevent, to the extent possible using the best technology 
currently available, additional contributions of suspended solids to 
streamflow outside the permit area; and
    (iv) Comply with all applicable local, State, and Federal laws and 
regulations.
    (3) Temporary diversions shall be removed when no longer needed to 
achieve the purpose for which they were authorized. The land disturbed 
by the removal process shall be restored in accordance with this part. 
Before diversions are removed, downstream water-treatment facilities 
previously protected by the diversion shall be modified or removed, as 
necessary, to prevent overtopping or failure of the facilities. This 
requirement shall not relieve the operator from maintaining water-
treatment facilities as otherwise required.
    (4) A permanent diversion or a stream channel restored after the 
completion of mining must be designed and constructed so as to restore 
or approximate the premining characteristics of the original stream 
channel, including any natural riparian vegetation, to promote the 
recovery and enhancement of the aquatic habitat.
    (5) The regulatory authority may specify additional design criteria 
for diversions to meet the requirements of this section.
    (b) Diversion of perennial and intermittent streams. (1) The 
regulatory authority may approve the diversion of perennial or 
intermittent streams within the permit area if the diversion is located 
and designed to minimize adverse impacts on fish, wildlife, and related 
environmental values to the extent possible, using the best technology 
currently available. The permittee must construct and maintain the 
diversion in accordance with the approved design.
    (2) The design capacity of channels for temporary and permanent 
stream channel diversions shall be at least equal to the capacity of the 
unmodified stream channel immediately upstream and downstream from the 
diversion.
    (3) The requirements of paragraph (a)(2)(ii) of this section shall 
be met when the temporary and permanent diversions for perennial and 
intermittent streams are designed so that the combination of channel, 
bank and flood-plain configuration is adequate to pass safely the peak 
runoff of a 10-year, 6-hour precipitation event for a temporary 
diversion and a 100-year, 6-hour precipitation event for a permanent 
diversion.
    (4) A permanent stream-channel diversion or a stream channel 
restored after the completion of mining must be designed and constructed 
using natural channel design techniques so as to restore or approximate 
the premining characteristics of the original stream channel, including 
the natural riparian vegetation and the natural hydrological 
characteristics of the original stream, to promote the recovery and 
enhancement of the aquatic habitat and to minimize adverse alteration of 
stream channels on and off the site, including channel deepening or 
enlargement, to the extent possible.
    (5) A qualified registered professional engineer must separately 
certify both

[[Page 341]]

the design and construction of all diversions of perennial and 
intermittent streams and all stream restorations. The design 
certification must certify that the design meets the design requirements 
of this section and any design criteria set by the regulatory authority. 
The construction certification must certify that the stream-channel 
diversion or stream restoration meets all construction requirements of 
this section and is in accordance with the approved design.
    (c) Diversion of miscellaneous flows. (1) Miscellaneous flows, which 
consist of all flows except for perennial and intermittent streams, may 
be diverted away from disturbed areas if required or approved by the 
regulatory authority. Miscellaneous flows shall include ground-water 
discharges and ephemeral streams.
    (2) The design, location, construction, maintenance, and removal of 
diversions of miscellaneous flows shall meet all of the performance 
standards set forth in paragraph (a) of this section.
    (3) The requirements of paragraph (a)(2)(ii) of this section shall 
be met when the temporary and permanent diversions for miscellaneous 
flows are designed so that the combination of channel, bank and flood-
plain configuration is adequate to pass safely the peak runoff of a 2-
year, 6-hour precipitation event for a temporary diversion and a 10-
year, 6-hour precipitation event for a permanent diversion.

[48 FR 43993, Sept. 26, 1983, as amended at 73 FR 75884, Dec. 12, 2008]



Sec. 817.45  Hydrologic balance: Sediment control measures.

    (a) Appropriate sediment control measures shall be designed, 
constructed, and maintained using the best technology currently 
available to:
    (1) Prevent, to the extent possible, additional contributions of 
sediment to stream flow or to runoff outside the permit area,
    (2) Meet the more stringent of applicable State or Federal effluent 
limitations,
    (3) Minimize erosion to the extent possible.
    (b) Sediment control measures include practices carried out within 
and adjacent to the disturbed area. The sedimentation storage capacity 
of practices in and downstream from the disturbed areas shall reflect 
the degree to which successful mining and reclamation techniques are 
applied to reduce erosion and control sediment. Sediment control 
measures consist of the utilization of proper mining and reclamation 
methods and sediment control practices, singly or in combination. 
Sediment control methods include but are not limited to--
    (1) Disturbing the smallest practicable area at any one time during 
the mining operation through progressive backfilling, grading, and 
prompt revegetation as required in Sec. 817.111(b);
    (2) Stabilizing the backfilled material to promote a reduction of 
the rate and volume of runoff in accordance with the requirements of 
Sec. 817.102;
    (3) Retaining sediment within disturbed areas;
    (4) Diverting runoff away from disturbed areas;
    (5) Diverting runoff using protected channels or pipes through 
disturbed areas so as not to cause additional erosion;
    (6) Using straw dikes, riprap, check dams, mulches, vegetative 
sediment filters, dugout ponds, and other measures that reduce overland 
flow velocity, reduce runoff volume, or trap sediment;
    (7) Treating with chemicals; and
    (8) Treating mine drainage in underground sumps.

[44 FR 15422, Mar. 13, 1979, as amended at 48 FR 44781, Sept. 30, 1983]



Sec. 817.46  Hydrologic balance: Siltation structures.

    (a) For the purposes of this section only, disturbed areas shall not 
include those areas--
    (1) In which the only surface mining activities include diversion 
ditches, siltation structures, or roads that are designed, constructed 
and maintained in accordance with this part; and
    (2) For which the upstream area is not otherwise distributed by the 
operator.

[[Page 342]]

    (b) General requirements. (1) Additional contributions of suspended 
solids and sediment to streamflow or runoff outside the permit area 
shall be prevented to the extent possible using the best technology 
currently available.
    (2) Any siltation structure which impounds water shall be designed, 
constructed and maintained in accordance with Sec. 817.49 of this 
chapter.
    (3) Siltation structures shall be maintained until removal is 
authorized by the regulatory authority and the disturbed area has been 
stabilized and revegetated. In no case shall the structure be removed 
sooner than 2 years after the last augmented seeding.
    (4) When the siltation structure is removed, the land on which the 
siltation structure was located shall be regraded and revegetated in 
accordance with the reclamation plan and Sec. Sec. 817.111 through 
817.116 of this chapter. Sedimentation ponds approved by the regulatory 
authority for retention as permanent impoundments may be exempted from 
this requirement.
    (5) Any point-source discharge of water from underground workings to 
surface waters which does not meet the effluent limitations of Sec. 
817.42 shall be passed through a siltation structure before leaving the 
permit area.
    (c) Sedimentation ponds. (1) Sedimentation ponds, when used, shall--
    (i) Be used individually or in series;
    (ii) Be located as near as possible to the distrubed area and out of 
perennial streams unless approved by the regulatory authority; and
    (iii) Be designed, constructed, and maintained to--
    (A) Provide adequate sediment storage volume;
    (B) Provide adequate detention time to allow the effluent from the 
ponds to meet State and Federal effluent limitations;
    (C) Contain or treat the 10-year, 24-hour precipitation event 
(``design event'') unless a lesser design event is approved by the 
regulatory authority based on terrain, climate, other site-specific 
conditions and on a demonstration by the operator that the effluent 
limitations of Sec. 817.42 will be met;
    (D) Provide a nonclogging dewatering device adequate to maintain the 
detention time required under paragraph (c)(1)(iii)(B) of this section;
    (E) Minimize, to the extent possible, short circuiting;
    (F) Provide periodic sediment removal sufficient to maintain 
adequate volume for the design event;
    (G) Ensure against excessive settlement;
    (H) Be free of sod, large roots, frozen soil, and acid- or toxic-
forming coal-processing waste; and
    (I) Be compacted properly.
    (2) Spillways. A sedimentation pond shall include either a 
combination of principal and emergency spillways or single spillway 
configured as specified in Sec. 817.49(a)(9).
    (d) Other treatment facilities. (1) Other treatment facilities shall 
be designed to treat the 10-year, 24-hour precipitation even unless a 
lesser design event is approved by the regulatory authority based on 
terrain, climate, other site-specific conditions and a demonstration by 
the operator that the effluent limitations of Sec. 817.42 will met.
    (2) Other treatment facilities shall be designed in accordance with 
the applicable requirements of paragraph (c) of this section.
    (e) Exemptions. Exemptions to the requirements of this section may 
be granted if--
    (1) The disturbed drainage area within the total disturbed area is 
small; and
    (2) The operator demonstrates that siltation structures and 
alternate sediment control measures are not necessary for drainage from 
the disturbed drainage areas to meet the effluent limitations under 
Sec. 817.42 and the applicable State and Federal water quality 
standards for the receiving waters.

[48 FR 44051, Sept. 26, 1983, as amended at 53 FR 43607, Oct. 27, 1988; 
59 FR 53030, Oct. 20, 1994; 73 FR 75884, Dec. 12, 2008; 75 FR 60275, 
Sept. 29, 2010]



Sec. 817.47  Hydrologic balance: Discharge structures.

    Discharge from sedimentation ponds, permanent and temporary 
impoundments, coal processing waste dams and embankments, and diversions 
shall be controlled, by energy dissipators, riprap channels, and other 
devices, where necessary, to reduce erosion, to

[[Page 343]]

prevent deepening or enlargement of stream channels, and to minimize 
disturbance of the hydrologic balance. Discharge structures shall be 
designed according to standard engineering design procedures.



Sec. 817.49  Impoundments.

    (a) General requirements. The requirements of this paragraph apply 
to both temporary and permanent impoundments.
    (1) Impoundments meeting the Class B or C criteria for dams in the 
U.S. Department of Agriculture, Soil Conservation Service Technical 
Release No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 
shall comply with the, ``Minimum Emergency Spillway Hydrologic 
Criteria,'' table in TR-60 and the requirements of this section. The 
technical release is hereby incorporated by reference. This 
incorporation by reference was approved by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
may be obtained from the National Technical Information Service (NTIS), 
5285 Port Royal Road, Springfield, Virginia 22161, order No. PB 87-
157509-AS. Copies can be inspected at the OSM Headquarters Office, 
Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, 1951 Constitution Avenue, NW, Washington, DC or at the National 
Archives and Records Administration (NARA). For information on the 
availability of this material at NARA, call 202-741-6030, or go to: 
http://www.archives.gov/federal--register/code--of--federal--
regulations/ibr--locations.html.
    (2) An impoundment meeting the size or other criteria of Sec. 
77.216(a) of this title shall comply with the requirements of Sec. 
77.216 of this title and this section.
    (3) Design certification. The design of impoundments shall be 
certified in accordance with Sec. 784.16(a) of this chapter as designed 
to meet the requirements of this part using current, prudent, 
engineering practices and any design criteria established by the 
regulatory authority. The qualified, registered, professional engineer 
or qualified, registered, professional, land surveyor shall be 
experienced in the design and construction or impoundments.
    (4) Stability. (i) An Impoundment meeting the SCS Class B or C 
criteria for dams in TR-60, or the size or other criteria of Sec. 
77.216(a) of this title shall have a minimum static safety factor of 1.5 
for a normal pool with steady state seepage saturation conditions, and a 
seismic safety factor of at least 1.2.
    (ii) Impoundments not included in paragraph (a)(4)(i) of this 
section, except for a coal mine waste impounding structure, shall have a 
minimum static safety factor of 1.3 for a normal pool with steady state 
seepage saturation conditions or meet the requirements of Sec. 
784.16(c)(3).
    (5) Freeboard. Impoundments shall have adequate freeboard to resist 
overtopping by waves and by sudden increases in storage volume. 
Impoundments meeting the SCS Class B or C criteria for dams in TR-60 
shall comply with the freeboard hydrograph criteria in the ``Minimum 
Emergency Spillway Hydrologic Criteria'' table in TR-60.
    (6) Foundation. (i) Foundations and abutments for an impounding 
structure shall be stable during all phases of construction and 
operation and shall be designed based on adequate and accurate 
information on the foundation conditions. For an impoundment meeting the 
SCS Class B or C criteria for dams in TR-60, or the size or other 
criteria of Sec. 77.216(a) of this title, foundation investigation, as 
well as any necessary laboratory testing of foundation material, shall 
be performed to determine the design requirements for foundation 
stability.
    (ii) All vegetative and organic materials shall be removed and 
foundations excavated and prepared to resist failure. Cutoff trenches 
shall be installed if necessary to ensure stability.
    (7) Slope protection shall be provided to protect against surface 
erosion at the site and protect against sudden drawdown.
    (8) Faces of embankments and surrounding areas shall be vegetated, 
except that faces where water is impounded may be riprapped or otherwise 
stabilized in accordance with accepted design practices.

[[Page 344]]

    (9) Spillways. An impoundment shall include either a combination of 
principal and emergency spillways or a single spillway configured as 
specified in paragraph (a)(9)(i) of this section, designed and 
constructed to safely pass the applicable design precipitation event 
specified in paragraph (a)(9)(ii) of this section, except as set forth 
in paragraph (c)(2) of this section.
    (i) The regulatory authority may approve a single open-channel 
spillway that is:
    (A) Of nonerodible construction and designed to carry sustained 
flows; or
    (B) Earth- or grass-lined and designed to carry short-term, 
infrequent flows at non-erosive velocities where sustained flows are not 
expected.
    (ii) Except as specified in paragraph (c)(2) of this section, the 
required design precipitation event for an impoundment meeting the 
spillway requirements of paragraph (a)(9) of this section is:
    (A) For an impoundment meeting the SCS Class B or C criteria for 
dams in TR-60, the emergency spillway hydrograph criteria in the 
``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60, or 
greater event as specified by the regulatory authority.
    (B) For an impoundment meeting or exceeding the size or other 
criteria of Sec. 77.216(a) of this title, a 100-year 6-hour event, or 
greater event as specified by the regulatory authority.
    (C) For an impoundment not included in paragraph (a)(9)(ii) (A) and 
(B) of this section, a 25-year 6-hour event, or greater event as 
specified by the regulatory authority.
    (10) The vertical portion of any remaining highwall shall be located 
far enough below the low-water line along the full extent of highwall to 
provide adequate safety and access for the proposed water users.
    (11) Inspections. Except as provided in paragraph (a)(11)(iv) of 
this section, a qualified registered professional engineer or other 
qualified professional specialist under the direction of a professional 
engineer, shall inspect each impoundment as provided in paragraph 
(a)(11)(i) of this section. The professional engineer or specialist 
shall be experienced in the construction of impoundments.
    (i) Inspections shall be made regularly during construction, upon 
completion of construction, and at least yearly until removal of the 
structure or release of the performance bond.
    (ii) The qualified registered professional engineer, or qualified 
registered professional land surveyor as specified in paragraph 
(a)(11)(iv) of this section, shall promptly after each inspection 
required in paragraph (a)(11)(i) of this section provide to the 
regulatory authority a certified report that the impoundment has been 
constructed and/or maintained as designed and in accordance with the 
approved plan and this chapter. The report shall include discussion of 
any appearance of instability, structural weakness or other hazardous 
condition, depth and elevation of any impounded waters, existing storage 
capacity, any existing or required monitoring procedures and 
instrumentation, and any other aspects of the structure affecting 
stability.
    (iii) A copy of the report shall be retained at or near the 
minesite.
    (iv) In any State which authorizes land surveyors to prepare and 
certify plans in accordance with Sec. 784.16(a) of this chapter, a 
qualified registered professional land surveyor may inspect any 
temporary or permanent impoundment that does not meet the SCS Class B or 
C criteria for dams in TR-60, or the size or other criteria of Sec. 
77.216(a) of this title and certify and submit the report required by 
paragraph (a)(11)(ii) of this section, except that all coal mine waste 
impounding structures covered by Sec. 817.84 of this chapter shall be 
certified by a qualified registered professional engineer. The 
professional land surveyor shall be experienced in the construction of 
impoundments.
    (12) Impoundments meeting the SCS Class B or C criteria for dams in 
TR-60, or the size or other criteria of Sec. 77.216 of this title must 
be examined in accordance with Sec. 77.216-3 of this title. 
Impoundments not meeting the SCS Class B or C Criteria for dams in TR-
60, or subject to Sec. 77.216 of this title, shall be examined at least 
quarterly. A qualified person designated by the operator shall examine 
impoundments for the

[[Page 345]]

appearance of structural weakness and other hazardous conditions.
    (13) Emergency procedures. If any examination or inspection 
discloses that a potential hazard exists, the person who examined the 
impoundment shall promptly inform the regulatory authority of the 
finding and of the emergency procedures formulated for public protection 
and remedial action. If adequate procedures cannot be formulated or 
implemented, the regulatory authority shall be notified immediately. The 
regulatory authority shall then notify the appropriate agencies that 
other emergency procedures are required to protect the public.
    (b) Permanent impoundments. A permanent impoundment of water may be 
created, if authorized by the regulatory authority in the approved 
permit based upon the following demonstration:
    (1) The size and configuration of such impoundment will be adequate 
for its intended purposes.
    (2) The quality of impounded water will be suitable on a permanent 
basis for its intended use and, after reclamation, will meet applicable 
State and Federal water quality standards, and discharges from the 
impoundment will meet applicable effluent limitations and will not 
degrade the quality of receiving water below applicable State and 
Federal water quality standards.
    (3) The water level will be sufficiently stable and be capable of 
supporting the intended use.
    (4) Final grading will provide for adequate safety and access for 
proposed water users.
    (5) The impoundment will not result in the diminution of the quality 
and quantity of water utilized by adjacent or surrounding landowners for 
agricultural, industrial, recreational, or domestic uses.
    (6) The impoundment will be suitable for the approved postmining 
land use.
    (c) Temporary impoundments. (1) The regulatory authority may 
authorize the construction of temporary impoundments as part of 
underground mining activities.
    (2) In lieu of meeting the requirements in paragraph (a)(9)(i) of 
this section, the regulatory authority may approve an impoundment that 
relies primarily on storage to control the runoff from the design 
precipitation event when it is demonstrated by the operator and 
certified by a qualified registered professional engineer or qualified 
registered professional land surveyor in accordance with Sec. 784.16(a) 
of this chapter that the impoundment will safely control the design 
precipitation event, the water from which shall be safely removed in 
accordance with current, prudent, engineering practices. Such an 
impoundment shall be located where failure would not be expected to 
cause loss of life or serious property damage, except where:
    (i) Impoundments meeting the SCS Class B or C criteria for dams in 
TR-60, or the size or other criteria of Sec. 77.216(a) of this title 
shall be designed to control the precipitation of the probable maximum 
precipitation of a 6-hour event, or greater event specified by the 
regulatory authority.
    (ii) Impoundments not included in paragraph (c)(2)(i) of this 
section shall be designed to control the precipitation of the 100-year 
6-hour event, or greater event specified by the regulatory authority.

[48 FR 44005, Sept. 26, 1983, as amended at 50 FR 16200, Apr. 24, 1985; 
53 FR 43607, Oct. 27, 1988; 59 FR 53030, 53031, Oct. 20, 1994; 66 FR 
14318, Mar. 12, 2001]



Sec. 817.56  Postmining rehabilitation of sedimentation ponds, diversions, 

impoundments, and treatment facilities.

    Before abandoning a permit area or seeking bond release, the 
operator shall ensure that all temporary structures are removed and 
reclaimed, and that all permanent sedimentation ponds, diversions, 
impoundments, and treatment facilities meet the requirements of this 
chapter for permanent structures, have been maintained properly, and 
meet the requirements of the approved reclamation plan for permanent 
structures and impoundments. The operator shall renovate such structures 
if necessary to meet the requirements of this chapter and to conform to 
the approved reclamation plan.

[48 FR 44006, Sept. 26, 1983]

[[Page 346]]



Sec. 817.57  Hydrologic balance: Surface activities in or adjacent to 

perennial or intermittent streams.

    (a)(1) Buffer requirement. Except as provided in paragraph (b) of 
this section and consistent with paragraph (a)(2) of this section, you, 
the permittee or operator, may not conduct surface activities that would 
disturb the surface of land within 100 feet, measured horizontally, of a 
perennial or intermittent stream, unless the regulatory authority 
authorizes you to do so under Sec. 784.28(e) of this chapter.
    (2) Clean Water Act requirements. Surface activities, including 
those activities in paragraphs (b)(1) through (b)(4) of this section, 
may be authorized in perennial or intermittent streams only where those 
activities would not cause or contribute to the violation of applicable 
State or Federal water quality standards developed pursuant to the Clean 
Water Act, as determined through certification under section 401 of the 
Clean Water Act or a permit under section 402 or 404 of the Clean Water 
Act.
    (b) Exception. The buffer requirement of paragraph (a) of this 
section does not apply to those segments of a perennial or intermittent 
stream for which the regulatory authority, in accordance with Sec. 
784.28(d) of this chapter or Sec. 817.43(b)(1) of this part, approves 
one or more of the activities listed in paragraphs (b)(1) through (b)(4) 
of this section.
    (1) Diversion of a perennial or intermittent stream. You must comply 
with all other applicable requirements of the regulatory program, 
including the requirements of Sec. 817.43(b) of this part for the 
permanent or temporary diversion of a perennial or intermittent stream.
    (2) Placement of bridge abutments, culverts, or other structures in 
or within 100 feet of a perennial or intermittent stream to facilitate 
crossing of the stream by roads, railroads, conveyors, pipelines, 
utilities, or similar facilities. You must comply with all other 
applicable requirements of the regulatory program, including the 
requirements of Sec. Sec. 817.150, 817.151, and 817.181 of this part, 
as appropriate.
    (3) Construction of sedimentation pond embankments in a perennial or 
intermittent stream. This provision extends to the pool or storage area 
created by the embankment. You must comply with all other applicable 
requirements of the regulatory program, including the requirements of 
Sec. 817.45(a) of this part. Under Sec. 817.56 of this part, you must 
remove and reclaim all sedimentation pond embankments before abandoning 
the permit area or seeking final bond release unless the regulatory 
authority approves retention of the pond as a permanent impoundment 
under Sec. 817.49(b) of this part and provisions have been made for 
sound future maintenance by the permittee or the landowner in accordance 
with Sec. 800.40(c)(2) of this chapter.
    (4) Construction of excess spoil fills and coal mine waste disposal 
facilities in a perennial or intermittent stream. You must comply with 
all other applicable requirements of the regulatory program, including 
the requirements of paragraphs (a) and (f) of Sec. 817.71 of this part 
for excess spoil fills and the requirements of Sec. Sec. 817.81(a), 
817.83(a), and 817.84 of this part for coal mine waste disposal 
facilities.
    (c) Additional clarifications. All surface activities conducted in 
or within 100 feet of a perennial or intermittent stream must comply 
with paragraphs (b)(9)(B) and (b)(11) of section 516 of the Act and the 
regulations implementing those provisions of the Act, including--
    (1) The requirement in Sec. 817.41(d)(1) of this part that surface 
activities be conducted according to the plan approved under Sec. 
784.14(g) of this chapter and that earth materials, ground-water 
discharges, and runoff be handled in a manner that prevents, to the 
extent possible using the best technology currently available, 
additional contribution of suspended solids to streamflow outside the 
permit area; and otherwise prevents water pollution.
    (2) The requirement in Sec. 817.45(a) that appropriate sediment 
control measures be designed, constructed, and maintained using the best 
technology currently available to prevent, to the extent possible, 
additional contributions of sediment to streamflow or to runoff outside 
the permit area.
    (3) The requirement in Sec. 817.97(a) of this part that the 
operator must, to the

[[Page 347]]

extent possible using the best technology currently available, minimize 
disturbances and adverse impacts on fish and wildlife and related 
environmental values and achieve enhancement of those resources where 
practicable.
    (4) The requirement in Sec. 817.97(f) of this part that the 
operator avoid disturbances to; enhance where practicable; restore; or 
replace wetlands, habitats of unusually high value for fish and 
wildlife, and riparian vegetation along rivers and streams and bordering 
ponds and lakes.

[73 FR 75884, Dec. 12, 2008]



Sec. 817.59  Coal recovery.

    Underground mining activities shall be conducted so as to maximize 
the utilization and conservation of the coal, while utilizing the best 
technology currently available to maintain environmental integrity, so 
that reaffecting the land in the future through surface coal mining 
operations is minimized.



Sec. 817.61  Use of explosives: General requirements.

    (a) Sections 817.61-817.68 apply to surface blasting activities 
incident to underground coal mining, including, but not limited to, 
initial rounds of slopes and shafts.
    (b) Each operator shall comply with all applicable State and Federal 
laws and regulations in the use of explosives.
    (c) Blasters. (1) No later than 12 months after the blaster 
certification program for a State required by part 850 of this chapter 
has been approved under the procedures of subchapter C of this chapter, 
all surface blasting operations incident to underground mining in that 
State shall be conducted under the direction of a certified blaster. 
Before that time, all such blasting operations in that State shall be 
conducted by competent, experienced persons who understand the hazards 
involved.
    (2) Certificates of blaster certification shall be carried by 
blasters or shall be on file at the permit area during blasting 
operations.
    (3) A blaster and at least one other person shall be present at the 
firing of a blast.
    (4) Any blaster who is responsible for conducting blasting 
operations at a blasting site shall:
    (i) Be familiar with the site-specific performance standards; and
    (ii) Give direction and on-the-job training to persons who are not 
certified and who are assigned to the blasting crew or assist in the use 
of explosives.
    (d) Blast design. (1) An anticipated blast design shall be submitted 
if blasting operations will be conducted within--
    (i) 1,000 feet of any building used as a dwelling, public building, 
school, church or community or institutional building; or
    (ii) 500 feet of active or abandoned underground mines.
    (2) The blast design may be presented as part of a permit 
application or at a time, before the blast, approved by the regulatory 
authority.
    (3) The blast design shall contain sketches of the drill patterns, 
delay periods, and decking and shall indicate the type and amount of 
explosives to be used, critical dimensions, and the location and general 
description of structures to be protected, as well as a discussion of 
design factors to be used, which protect the public and meet the 
applicable airblast, flyrock, and ground-vibration standards in Sec. 
817.67.
    (4) The blast design shall be prepared and signed by a certified 
blaster.
    (5) The regulatory authority may require changes to the design 
submitted.

[48 FR 9492, Mar. 4, 1983, and 48 FR 9809, Mar. 8, 1983, as amended at 
51 FR 19461, May 29, 1986]



Sec. 817.62  Use of explosives: Preblasting survey.

    (a) At least 30 days before initiation of blasting, the operator 
shall notify, in writing, all residents or owners of dwellings or other 
structures located within \1/2\ mile of the permit area how to request a 
preblasting survey.
    (b) A resident or owner of a dwelling or structure within \1/2\ mile 
of any part of the permit area may request a preblasting survey. This 
request shall be made, in writing, directly to the operator or to the 
regulatory authority,

[[Page 348]]

who shall promptly notify the operator. The operator shall promptly 
conduct a preblasting survey of the dwelling or structure and promptly 
prepare a written report of the survey. An updated survey of any 
additions, modifications, or renovations shall be performed by the 
operator if requested by the resident or owner.
    (c) The operator shall determine the condition of the dwelling or 
structure and shall document any preblasting damage and other physical 
factors that could reasonably be affected by the blasting. Structures 
such as pipelines, cables, transmission lines, and cisterns, wells, and 
other water systems warrant special attention; however, the assessment 
of these structures may be limited to surface conditions and other 
readily available data.
    (d) The written report of the survey shall be signed by the person 
who conducted the survey. Copies of the report shall be promptly 
provided to the regulatory authority and to the person requesting the 
survey. If the person requesting the survey disagrees with the contents 
and/or recommendations contained therein, he or she may submit to both 
the operator and the regulatory authority a detailed description of the 
specific areas of disagreement.
    (e) Any surveys requested more than 10 days before the planned 
initiation of blasting shall be completed by the operator before the 
initiation of blasting.

[48 FR 9809, Mar. 8, 1983]



Sec. 817.64  Use of explosives: General performance standards.

    (a) The operator shall notify, in writing, residents within \1/2\ 
mile of the blasting site and local governments of the proposed times 
and locations of blasting operations. Such notice of times that blasting 
is to be conducted may be announced weekly, but in no case less than 24 
hours before blasting will occur.
    (b) Unscheduled blasts may be conducted only where public or 
operator health and safety so requires and for emergency blasting 
actions. When an operator conducts an unscheduled surface blast 
incidental to underground coal mining operations, the operator, using 
audible signals, shall notify residents within \1/2\ mile of the 
blasting site and document the reason in accordance with Sec. 
817.68(p).
    (c) All blasting shall be conducted between sunrise and sunset 
unless nighttime blasting is approved by the regulatory authority based 
upon a showing by the operator that the public will be protected from 
adverse noise and other impacts. The regulatory authority may specify 
more restrictive time periods for blasting.

[48 FR 9809, Mar. 8, 1983]



Sec. 817.66  Use of explosives: Blasting signs, warnings, and access control.

    (a) Blasting signs. Blasting signs shall meet the specifications of 
Sec. 817.11. The operator shall--
    (1) Conspicuously place signs reading ``Blasting Area'' along the 
edge of any blasting area that comes within 100 feet of any public-road 
right-of-way, and at the point where any other road provides access to 
the blasting area; and
    (2) At all entrances to the permit area from public roads or 
highways, place conspicuous signs which state ``Warning! Explosives in 
Use,'' which clearly list and describe the meaning of the audible blast 
warning and all-clear signals that are in use, and which explain the 
marking of blasting areas and charged holes awaiting firing within the 
permit area.
    (b) Warnings. Warning and all-clear signals of different character 
or pattern that are audible within a range of \1/2\ mile from the point 
of the blast shall be given. Each person within the permit area and each 
person who resides or regularly works within \1/2\ mile of the permit 
area shall be notified of the meaning of the signals in the blasting 
notification required in Sec. 817.64(a).
    (c) Access control. Access within the blasting areas shall be 
controlled to prevent presence of livestock or unauthorized persons 
during blasting and until an authorized representative of the operator 
has reasonably determined that--
    (1) No unusual hazards, such as imminent slides or undetonated 
charges, exist; and
    (2) Access to and travel within the blasting area can be safely 
resumed.

[48 FR 9810, Mar. 8, 1983]

[[Page 349]]



Sec. 817.67  Use of explosives: Control of adverse effects.

    (a) General requirements. Blasting shall be conducted to prevent 
injury to persons, damage to public or private property outside the 
permit area, adverse impacts on any underground mine, and change in the 
course, channel, or availability of surface or ground water outside the 
permit area.
    (b) Airblast--(1) Limits. (i) Airblast shall not exceed the maximum 
limits listed below at the location of any dwelling, public building, 
school, church, or community or institutional building outside the 
permit area, except as provided in paragraph (e) of this section.

------------------------------------------------------------------------
    Lower frequency limit of measuring
  system, in Hz (3        Maximum level, in dB
                   dB)
------------------------------------------------------------------------
0.1 Hz or lower--flat response \1\.......  134 peak.
2 Hz or lower--flat response.............  133 peak.
6 Hz or lower--flat response.............  129 peak.
C-weighted--slow response \1\............  105 peak dBC.
------------------------------------------------------------------------
\1\ Only when approved by the regulatory authority.

    (ii) If necessary to prevent damage, the regulatory authority may 
specify lower maximum allowable airblast levels than those of paragraph 
(b)(1)(i) of this section for use in the vicinity of a specific blasting 
operation.
    (2) Monitoring. (i) The operator shall conduct periodic monitoring 
to ensure compliance with the airblast standards. The regulatory 
authority may require airblast measurement of any or all blasts and may 
specify the locations at which such measurements are taken.
    (ii) The measuring systems used shall have an upper-end flat-
frequency response of at least 200 Hz.
    (c) Flyrock. Flyrock travelling in the air or along the ground shall 
not be cast from the blasting site--
    (1) More than one-half the distance to the nearest dwelling or other 
occupied structure;
    (2) Beyond the area of control required under Sec. 817.66(c); or
    (3) Beyond the permit boundary.
    (d) Ground vibration--(1) General. In all blasting operations, 
except as otherwise authorized in paragraph (e) of this section, the 
maximum ground vibration shall not exceed the values approved by the 
regulatory authority. The maximum ground vibration for protected 
structures listed in paragraph (d)(2)(i) of this section shall be 
established in accordance with either the maximum peak-particle-velocity 
limits of paragraph (d)(2), the scaled-distance equation of paragraph 
(d)(3), the blasting-level chart of paragraph (d)(4) of this section, or 
by the regulatory authority under paragraph (d)(5) of this section. All 
structures in the vicinity of the blasting area, not listed in paragraph 
(d)(2)(i) of this section, such as water towers, pipelines and other 
utilities, tunnels, dams, impoundments, and underground mines shall be 
protected from damage by establishment of a maximum allowable limit on 
the ground vibration, submitted by the operator and approved by the 
regulatory authority before the initiation of blasting.
    (2) Maximum peak-particle velocity. (i) The maximum ground vibration 
shall not exceed the following limits at the location of any dwelling, 
public building, school, church, or community or institutional building 
outside the permit area:

------------------------------------------------------------------------
                                                  Maximum
                                                 allowable     Scaled-
                                                    peak       distance
                                                  particle    factor to
                                                velocity (V   be applied
 Distance (D), from the blasting site, in feet    max) for     without
                                                   ground      seismic
                                                 vibration,   monitoring
                                                 in inches/    \2\ (Ds)
                                                 second \1\
------------------------------------------------------------------------
0 to 300......................................         1.25           50
301 to 5,000..................................         1.00           55
5,001 and beyond..............................         0.75           65
------------------------------------------------------------------------
\1\ Ground vibration shall be measured as the particle velocity.
  Particle velocity shall be recorded in three mutually perpendicular
  directions. The maximum allowable peak particle velocity shall apply
  to each of the three measurements.
\2\ Applicable to the scaled-distance equation of Paragraph (d)(3)(i) of
  this section.

    (ii) A seismographic record shall be provided for each blast.
    (3) Scaled-distance equation. (i) An operator may use the scaled-
distance equation, W=(D/Ds)\2\, to determine the allowable charge weight 
of explosives to be detonated in any 8-millisecond period, without 
seismic monitoring; where W=the maximum weight of explosives, in pounds; 
D=the distance, in feet, from the blasting site to the nearest protected 
structure; and Ds=the scaled-distance factor, which may initially be 
approved by the regulatory authority using the values for scaled-

[[Page 350]]

distance factor listed in paragraph (d)(2)(i) of this section.
    (ii) The development of a modified scaled-distance factor may be 
authorized by the regulatory authority on receipt of a written request 
by the operator, supported by seismographic records of blasting at the 
minesite. The modified scaled-distance factor shall be determined such 
that the particle velocity of the predicted ground vibration will not 
exceed the prescribed maximum allowable peak particle velocity of 
paragraph (d)(2)(i) of this section, at a 95-percent confidence level.
    (4) Blasting-level chart. (i) An operator may use the ground-
vibration limits in Figure 1 to determine the maximum allowable ground 
vibration.
[GRAPHIC] [TIFF OMITTED] TC21OC91.026

    (ii) If the Figure 1 limits are used, a seismographic record 
including both particle velocity and vibration-frequency levels shall be 
provided for each blast. The method for the analysis of the predominant 
frequency contained in the blasting records shall be approved by the 
regulatory authority before application of this alternative blasting 
criterion.

[[Page 351]]

    (5) The maximum allowable ground vibration shall be reduced by the 
regulatory authority beyond the limits otherwise provided by this 
section, if determined necessary to provide damage protection.
    (6) The regulatory authority may require an operator to conduct 
seismic monitoring of any or all blasts and may specify the location at 
which the measurements are taken and the degree of detail necessary in 
the measurement.
    (e) The maximum airblast and ground-vibration standards of 
paragraphs (b) and (d) of this section shall not apply at the following 
locations:
    (1) At structures owned by the permittee and not leased to another 
person,
    (2) At structures owned by the permittee and leased to another 
person, if a written waiver by the lessee is submitted to the regulatory 
authority before blasting.

[48 FR 9810, Mar. 8, 1983, as amended at 48 FR 44781, Sept. 30, 1983]



Sec. 817.68  Use of explosives: Records of blasting operations.

    The operator shall retain a record of all blasts for at least 3 
years. Upon request, copies of these records shall be made available to 
the regulatory authority and to the public for inspection. Such records 
shall contain the following data:
    (a) Name of the operator conducting the blast.
    (b) Location, date, and time of the blast.
    (c) Name, signature, and certification number of the blaster 
conducting the blast.
    (d) Identification, direction, and distance, in feet, from the 
nearest blast hole to the nearest dwelling, public building, school, 
church, community or institutional building outside the permit area, 
except those described in Sec. 817.67 (e).
    (e) Weather conditions, including those which may cause possible 
adverse blasting effects.
    (f) Type of material blasted.
    (g) Sketches of the blast pattern including number of holes, burden, 
spacing, decks, and delay pattern.
    (h) Diameter and depth of holes.
    (i) Types of explosives used.
    (j) Total weight of explosives used per hole.
    (k) The maximum weight of explosives detonated in an 8-millisecond 
period.
    (l) Initiation system.
    (m) Type and length of stemming.
    (n) Mats or other protections used.
    (o) Seismographic and airblast records, if required, which shall 
include--
    (1) Type of instrument, sensitivity, and calibration signal or 
certification of annual calibration;
    (2) Exact location of instrument and the date, time, and distance 
from the blast;
    (3) Name of the person and firm taking the reading;
    (4) Name of the person and firm analyzing the seismographic record; 
and
    (5) The vibration and/or airblast level recorded.
    (p) Reasons and conditions for each unscheduled blast.

[48 FR 9811, Mar. 8, 1983]



Sec. 817.71  Disposal of excess spoil: General requirements.

    (a) General. You, the permittee or operator, must place excess spoil 
in designated disposal areas within the permit area in a controlled 
manner to--
    (1) Minimize the adverse effects of leachate and surface water 
runoff from the fill on surface and ground waters;
    (2) Ensure mass stability and prevent mass movement during and after 
construction;
    (3) Ensure that the final fill is suitable for reclamation and 
revegetation compatible with the natural surroundings and the approved 
postmining land use; and
    (4) Minimize disturbances to and adverse impacts on fish, wildlife, 
and related environmental values to the extent possible, using the best 
technology currently available.
    (b) Static safety factor. The fill must be designed and constructed 
to attain a minimum long-term static safety factor of 1.5. The 
foundation and abutments of the fill must be stable under all conditions 
of construction.
    (c) Compliance with permit. You, the permittee or operator, must 
construct the fill in accordance with the design

[[Page 352]]

and plans submitted under Sec. 784.19 of this chapter and approved as 
part of the permit.
    (d) Special requirement for steep-slope conditions. When the slope 
in the disposal area exceeds 2.8h:1v (36 percent), or any lesser slope 
designated by the regulatory authority based on local conditions, you, 
the permittee or operator, must construct keyway cuts (excavations to 
stable bedrock) or rock-toe buttresses to ensure fill stability.
    (e) Placement of excess spoil. (1) All vegetative and organic 
materials shall be removed from the disposal area prior to placement of 
excess spoil. Topsoil shall be removed, segregated and stored or 
redistributed in accordance with Sec. 817.22. If approved by the 
regulatory authority, organic material may be used as mulch or may be 
included in the topsoil to control erosion, promote growth of vegetation 
or increase the moisture retention of the soil.
    (2) Excess spoil shall be transported and placed in a controlled 
manner in horizontal lifts not exceeding 4 feet in thickness; 
concurrently compacted as necessary to ensure mass stability and to 
prevent mass movement during and after construction; graded so that 
surface and subsurface drainage is compatible with the natural 
surroundings; and covered with topsoil or substitute material in 
accordance with Sec. 817.22 of this chapter. The regulatory authority 
may approve a design which incorporates placement of excess spoil in 
horizontal lifts other than 4 feet in thickness when it is demonstrated 
by the operator and certified by a qualified registered professional 
engineer that the design will ensure the stability of the fill and will 
meet all other applicable requirements.
    (3) The final configuration of the fill shall be suitable for the 
approved postmining land use. Terraces may be constructed on the 
outslope of the fill if required for stability, control of erosion, to 
conserve soil moisture, or to facilitate the approved postmining land 
use. The grade of the outslope between terrace benches shall not be 
steeper than 2h:lv (50 percent).
    (4) No permanent impoundments are allowed on the completed fill. 
Small depressions may be allowed by the regulatory authority if they are 
needed to retain moisture, minimize erosion, create and enhance wildlife 
habitat, or assist revegetation; and if they are not incompatible with 
the stability of the fill.
    (5) Excess spoil that is acid- or toxic-forming or combustible shall 
be adequately covered with nonacid, nontoxic and noncombustible 
material, or treated, to control the impact on surface and ground water 
in accordance with Sec. 817.41, to prevent sustained combustion, and to 
minimize adverse effects on plant growth and the approved postmining 
land use.
    (f) Drainage control. (1) If the disposal area contains springs, 
natural or manmade water courses, or wet weather seeps, the fill design 
shall include diversions and underdrains as necessary to control 
erosion, prevent water infiltration into the fill, and ensure stability.
    (2) Diversions shall comply with the requirements of Sec. 817.43.
    (3) Underdrains shall consist of durable rock or pipe, be designed 
and constructed using current, prudent engineering practices and meet 
any design criteria established by the regulatory authority. The 
underdrain system shall be designed to carry the anticipated seepage of 
water due to rainfall away from the excess spoil fill and from seeps and 
springs in the foundation of the disposal area and shall be protected 
from piping and contamination by an adequate filter. Rock underdrains 
shall be constructed of durable, nonacid-, nontoxic-forming rock (e.g., 
natural sand and gravel, sandstone, limestone, or other durable rock) 
that does not slake in water or degrade to soil materials, and which is 
free of coal, clay or other nondurable material. Perforated pipe 
underdrains shall be corrosion resistant and shall have characteristics 
consistent with the long-term life of the fill.
    (g) Surface area stabilization. Slope protection shall be provided 
to minimize surface erosion at the site. All disturbed areas, including 
diversion channels that are not riprapped or otherwise protected, shall 
be revegetated upon completion of construction.
    (h) Inspections. A qualified registered professional engineer or 
other qualified

[[Page 353]]

professional specialist under the direction of the professional 
engineer, shall periodically inspect the fill during construction. The 
professional engineer or specialist shall be experienced in the 
construction of earth and rock fills.
    (1) Such inspections shall be made at least quarterly throughout 
construction and during critical construction periods. Critical 
construction periods shall include at a minimum: (i) Foundation 
preparation, including the removal of all organic material and topsoil; 
(ii) placement of underdrains and protective filter systems; (iii) 
installation of final surface drainage systems; and (iv) the final 
graded and revegetated fill. Regular inspections by the engineer or 
specialist shall also be conducted during placement and compaction of 
fill materials.
    (2) The qualified registered professional engineer shall provide a 
certified report to the regulatory authority promptly after each 
inspection that the fill has been constructed and maintained as designed 
and in accordance with the approved plan and this chapter. The report 
shall include appearances of instability, structural weakness, and other 
hazardous conditions.
    (3)(i) The certified report on the drainage system and protective 
filters shall include color photographs taken during and after 
construction, but before underdrains are covered with excess spoil. If 
the underdrain system is constructed in phases, each phase shall be 
certified separately.
    (ii) Where excess durable rock spoil is placed in single or multiple 
lifts such that the underdrain system is constructed simultaneously with 
excess spoil placement by the natural segregation of dumped materials, 
in accordance with Sec. 817.73, color photographs shall be taken of the 
underdrain as the underdrain system is being formed.
    (iii) The photographs accompanying each certified report shall be 
taken in adequate size and number with enough terrain or other physical 
features of the site shown to provide a relative scale to the 
photographs and to specifically and clearly identify the site.
    (4) A copy of each inspection report shall be retained at or near 
the mine site.
    (i) Coal mine waste. Coal mine waste may be disposed of in excess 
spoil fills if approved by the regulatory authority and, if such waste 
is--
    (1) Placed in accordance with Sec. 817.83;
    (2) Nontoxic and nonacid forming; and
    (3) Of the proper characteristics to be consistent with the design 
stability of the fill.
    (j) Underground disposal. Excess spoil may be disposed of in 
underground mine workings, but only in accordance with a plan approved 
by the regulatory authority and MSHA under Sec. 784.25 of this chapter.

[48 FR 32927, July 19, 1983, as amended at 48 FR 44781, Sept. 30, 1983; 
73 FR 75885, Dec. 12, 2008]



Sec. 817.72  Disposal of excess spoil: Valley fill/head-of-hollow fills.

    Valley fills and head-of-hollow fills shall meet the requirements of 
Sec. 817.71 and the additional requirements of this section.
    (a) Drainage control. (1) The top surface of the completed fill 
shall be graded such that the final slope after settlement will be 
toward properly designed drainage channels. Uncontrolled surface 
drainage may not be directed over the outslope of the fill.
    (2) Runoff from areas above the fill and runoff from the surface of 
the fill shall be diverted into stabilized diversion channels designed 
to meet the requirements of Sec. 817.43 and to safely pass the runoff 
from a 100-year, 6-hour precipitation event.
    (b) Rock-core chimney drains. A rock-core chimney drain may be used 
in a head-of-hollow fill, instead of the underdrain and surface 
diversion system normally required, as long as the fill is not located 
in an area containing intermittent or perennial streams. A rock-core 
chimney drain may be used in a valley fill if the fill does not exceed 
250,000 cubic yards of material and upstream drainage is diverted around 
the fill. The alternative rock-core chimney drain system shall be 
incorporated into the design and construction of the fill as follows:
    (1) The fill shall have, along the vertical projection of the main 
buried stream channel or rill, a vertical core of durable rock at least 
16 feet thick

[[Page 354]]

which shall extend from the toe of the fill to the head of the fill, and 
from the base of the fill to the surface of the fill. A system of 
lateral rock underdrains shall connect this rock core to each area of 
potential drainage or seepage in the disposal area. The underdrain 
system and rock core shall be designed to carry the anticipated seepage 
of water due to rainfall away from the excess spoil fill and from seeps 
and springs in the foundation of the disposal area. Rocks used in the 
rock core and underdrains shall meet the requirements of Sec. 
817.71(f).
    (2) A filter system to ensure the proper long-term functioning of 
the rock core shall be designed and constructed using current, prudent 
engineering practices.
    (3) Grading may drain surface water away from the outslope of the 
fill and toward the rock core. In no case, however, may intermittent or 
perennial streams be diverted into the rock core. The maximum slope of 
the top of the fill shall be 33h:lv (3 percent). A drainage pocket may 
be maintained at the head of the fill during and after construction, to 
intercept surface runoff and discharge the runoff through or over the 
rock drain, if stability of the fill is not impaired. In no case shall 
this pocket or sump have a potential capacity for impounding more than 
10,000 cubic feet of water. Terraces on the fill shall be graded with a 
3 to 5 percent grade toward the fill and a 1 percent slope toward the 
rock core.

[48 FR 32928, July 19, 1983]



Sec. 817.73  Disposal of excess spoil: Durable rock fills.

    The regulatory authority may approve the alternative method of 
disposal of excess durable rock spoil by gravity placement in single or 
multiple lifts, provided the following conditions are met:
    (a) Except as provided in this section, the requirements of Sec. 
817.71 are met.
    (b) The excess spoil consists of at least 80 percent, by volume, 
durable, nonacid- and nontoxic-forming rock (e.g., sandstone or 
limestone) that does not slake in water and will not degrade to soil 
material. Where used, noncemented clay shale, clay spoil, soil or other 
nondurable excess spoil material shall be mixed with excess durable rock 
spoil in a controlled manner such that no more than 20 percent of the 
fill volume, as determined by tests performed by a registered engineer 
and approved by the regulatory authority, is not durable rock.
    (c) A qualified registered professional engineer certifies that the 
design will ensure the stability of the fill and meet all other 
applicable requirements.
    (d) The fill is designed to attain a minimum long-term static safety 
factor of 1.5, and an earthquake safety factor of 1.1.
    (e) The underdrain system may be constructed simultaneously with 
excess spoil placement by the natural segregation of dumped materials, 
provided the resulting underdrain system is capable of carrying 
anticipated seepage of water due to rainfall away from the excess spoil 
fill and from seeps and springs in the foundation of the disposal area 
and the other requirements for drainage control are met.
    (f) Surface water runoff from areas adjacent to and above the fill 
is not allowed to flow onto the fill and is diverted into stabilized 
diversion channels designed to meet the requirements of Sec. 817.43 and 
to safely pass the runoff from a 100-year, 6-hour precipitation event.

[48 FR 32929, July 19, 1983]



Sec. 817.74  Disposal of excess spoil: Preexisting benches.

    (a) The regulatory authority may approve the disposal of excess 
spoil through placement on a preexisting bench if the affected portion 
of the preexisting bench is permitted and the standards set forth in 
Sec. 817.102 (c), (e) through (h), and (j), and the requirements of 
this section are met.
    (b) All vegetation and organic materials shall be removed from the 
affected portion of the preexisting bench prior to placement of the 
excess spoil. Any available topsoil on the bench shall be removed, 
stored and redistributed in accordance with Sec. 817.22 of this part. 
Substitute or supplemental materials may be used in accordance with 
Sec. 817.22(b) of this part.
    (c) The fill shall be designed and constructed using current, 
prudent engineering practices. The design will be

[[Page 355]]

certified by a registered professional engineer. The spoil shall be 
placed on the solid portion of the bench in a controlled manner and 
concurrently compacted as necessary to attain a long term static safety 
factor of 1.3 for all portions of the fill. Any spoil deposited on any 
fill portion of the bench will be treated as excess spoil fill under 
Sec. 817.71.
    (d) The preexisting bench shall be backfilled and graded to--
    (1) Achieve the most moderate slope possible which does not exceed 
the angle of repose;
    (2) Eliminate the highwall to the maximum extent technically 
practical;
    (3) Minimize erosion and water pollution both on and off the site; 
and
    (4) If the disposal area contains springs, natural or manmade water 
courses, or wet weather seeps, the fill design shall include diversions 
and underdrains as necessary to control erosion, prevent water 
infiltration into the fill, and ensure stability.
    (e) All disturbed areas, including diversion channels that are not 
riprapped or otherwise protected, shall be revegetated upon completion 
of construction.
    (f) Permanent impoundments may not be constructed on preexisting 
benches backfilled with excess spoil under this regulation.
    (g) Final configuration of the backfill must be compatible with the 
natural drainage patterns and the surrounding area, and support the 
approved postmining land use.
    (h) Disposal of excess spoil from an upper actively mined bench to a 
lower preexisting bench by means of gravity transport may be approved by 
the regulatory authority provided that--
    (1) The gravity transport courses are determined on a site-specific 
basis by the operator as part of the permit application and approved by 
the regulatory authority to minimize hazards to health and safety and to 
ensure that damage will be minimized between the benches, outside the 
set course, and downslope of the lower bench should excess spoil 
accidentally move;
    (2) All gravity transported excess spoil, including that excess 
spoil immediately below the gravity transport courses and any 
preexisting spoil that is disturbed, is rehandled and placed in 
horizontal lifts in a controlled manner, concurrently compacted as 
necessary to ensure mass stability and to prevent mass movement, and 
graded to allow surface and subsurface drainage to be compatible with 
the natural surroundings and to ensure a minimum long-term static safety 
factor of 1.3. Excess spoil on the bench prior to the current mining 
operation that is not disturbed need not be rehandled except where 
necessary to ensure stability of the fill;
    (3) A safety berm is constructed on the solid portion of the lower 
bench prior to gravity transport of the excess spoil. Where there is 
insufficient material on the lower bench to construct a safety berm, 
only that amount of excess spoil necessary for the construction of the 
berm may be gravity transported to the lower bench prior to construction 
of the berm;
    (4) Excess spoil shall not be allowed on the downslope below the 
upper bench except on designated gravity transport courses properly 
prepared according to Sec. 817.22. Upon completion of the fill, no 
excess spoil shall be allowed to remain on the designated gravity 
transport course between the two benches and each transport course shall 
be reclaimed in accordance with the requirements of this part.

[48 FR 32929, July 19, 1983, as amended at 48 FR 44781, Sept. 30, 1983; 
56 FR 65636, Dec. 17, 1991]



Sec. 817.81  Coal mine waste: General requirements.

    (a) General. All coal mine waste disposed of in an area other than 
the mine workings or excavations shall be placed in new or existing 
disposal areas within a permit area, which are approved by the 
regulatory authority for this purpose. Coal mine waste shall be hauled 
or conveyed and placed for final placement in a controlled manner to--
    (1) Minimize adverse effects of leachate and surface-water runoff on 
surface and ground water quality and quantity;
    (2) Ensure mass stability and prevent mass movement during and after 
construction;
    (3) Ensure that the final disposal facility is suitable for 
reclamation and

[[Page 356]]

revegetation compatible with the natural surroundings and the approved 
postmining land use;
    (4) Not create a public hazard; and
    (5) Prevent combustion.
    (b) Coal mine waste materials from activities located outside a 
permit area may be disposed of in the permit area only if approved by 
the regulatory authority. Approval shall be based upon a showing that 
such disposal will be in accordance with the standards of this section.
    (c) Design certification. (1) The disposal facility shall be 
designed using current, prudent engineering practices and shall meet any 
design criteria established by the regulatory authority. A qualified 
registered professional engineer, experienced in the design of similar 
earth and waste structures, shall certify the design of the disposal 
facility.
    (2) The disposal facility shall be designed to attain a minimum 
long-term static safety factor of 1.5. The foundation and abutments must 
be stable under all conditions of construction.
    (d) Foundation. Sufficient foundation investigations, as well as any 
necessary laboratory testing of foundation material, shall be performed 
in order to determine the design requirements for foundation stability. 
The analyses of the foundation conditions shall take into consideration 
the effect of underground mine workings, if any, upon the stability of 
the disposal facility.
    (e) Emergency procedures. If any examination or inspection discloses 
that a potential hazard exists, the regulatory authority shall be 
informed promptly of the finding and of the emergency procedures 
formulated for public protection and remedial action. If adequate 
procedures cannot be formulated or implemented, the regulatory authority 
shall be notified immediately. The regulatory authority shall then 
notify the appropriate agencies that other emergency procedures are 
required to protect the public.
    (f) Underground disposal. Coal mine waste may be disposed of in 
underground mine workings, but only in accordance with a plan approved 
by the regulatory authority and MSHA under Sec. 784.25 of this chapter.

[48 FR 44030, Sept. 26, 1983, as amended at 56 FR 65636, Dec. 17, 1991]



Sec. 817.83  Coal mine waste: Refuse piles.

    Refuse piles shall meet the requirements of Sec. 817.81, the 
additional requirements of this section, and the requirements of 
Sec. Sec. 77.214 and 77.215 of this title.
    (a) Drainage control. (1) If the disposal area contains springs, 
natural or manmade water courses, or wet weather seeps, the design shall 
include diversions and underdrains as necessary to control erosion, 
prevent water infiltration into the disposal facility and ensure 
stability.
    (2) Uncontrolled surface drainage may not be diverted over the 
outslope of the refuse pile. Runoff from areas above the refuse pile and 
runoff from the surface of the refuse pile shall be diverted into 
stabilized diversion channels designed to meet the requirements of Sec. 
817.43 to safely pass the runoff from a 100-year, 6-hour precipitation 
event. Runoff diverted from undisturbed areas need not be commingled 
with runoff from the surface of the refuse pile.
    (3) Underdrains shall comply with the requirements of Sec. 
817.71(f)(3).
    (b) Surface area stabilization. Slope protection shall be provided 
to minimize surface erosion at the site. All disturbed areas, including 
diversion channels that are not riprapped or otherwise protected, shall 
be revegetated upon completion of construction.
    (c) Placement. (1) All vegetative and organic materials shall be 
removed from the disposal area prior to placement of coal mine waste. 
Topsoil shall be removed, segregated and stored or redistributed in 
accordance with Sec. 817.22. If approved by the regulatory authority, 
organic material may be used as mulch or may be included in the topsoil 
to control erosion, promote growth of vegetation or increase the 
moisture retention of the soil.
    (2) The final configuration of the refuse pile shall be suitable for 
the approved postmining land use. Terraces may be constructed on the 
outslope of the refuse pile if required for stability, control of 
erosion, conservation of soil

[[Page 357]]

moisture, or facilitation of the approved postmining land use. The grade 
of the outslope between terrace benches shall not be steeper than 2h:1v 
(50 percent).
    (3) No permanent impoundments shall be allowed on the completed 
refuse pile. Small depressions may be allowed by the regulatory 
authority if they are needed to retain moisture, minimize erosion, 
create and enhance wildlife habitat, or assist revegetation, and if they 
are not incompatible with stability of the refuse pile.
    (4) Following final grading of the refuse pile, the coal mine waste 
shall be covered with a minimum of 4 feet of the best available, 
nontoxic and noncombustible material, in a manner that does not impede 
drainage from the underdrains. The regulatory authority may allow less 
than 4 feet of cover material based on physical and chemical analyses 
which show that the requirements of Sec. Sec. 817.111 through 817.116 
will be met.
    (d) Inspections. A qualified registered professional engineer, or 
other qualified professional specialist under the direction of the 
professional engineer, shall inspect the refuse pile during 
construction. The professional engineer or specialist shall be 
experienced in the construction of similar earth and waste structures.
    (1) Such inspection shall be made at least quarterly throughout 
construction and during critical construction periods. Critical 
construction periods shall include at a minimum: (i) Foundation 
preparation including the removal of all organic material and topsoil; 
(ii) placement of underdrains and protective filter systems; (iii) 
installation of final surface drainage systems; and (iv) the final 
graded and revegetated facility. Regular inspections by the engineer or 
specialist shall also be conducted during placement and compaction of 
coal mine waste materials. More frequent inspections shall be conducted 
if a danger of harm exists to the public health and safety or the 
environment. Inspections shall continue until the refuse pile has been 
finally graded and revegetated or until a later time as required by the 
regulatory authority.
    (2) The qualified registered professional engineer shall provide a 
certified report to the regulatory authority promptly after each 
inspection that the refuse pile has been constructed and maintained as 
designed and in accordance with the approved plan and this chapter. The 
report shall include appearances of instability, structural weakness, 
and other hazardous conditions.
    (3) The certified report on the drainage system and protective 
filters shall include color photographs taken during and after 
construction, but before underdrains are covered with coal mine waste. 
If the underdrain system is constructed in phases, each phase shall be 
certified separately. The photographs accompanying each certified report 
shall be taken in adequate size and number with enough terrain or other 
physical features of the site shown to provide a relative scale to the 
photographs and to specifically and clearly identify the site.
    (4) A copy of each inspection report shall be retained at or near 
the minesite.

[48 FR 44030, Sept. 26, 1983]



Sec. 817.84  Coal mine waste: Impounding structures.

    New and existing impounding structures constructed of coal mine 
waste or intended to impound coal mine waste shall meet the requirements 
of Sec. 817.81.
    (a) Coal mine waste shall not be used for construction of impounding 
structures unless it has been demonstrated to the regulatory authority 
that the stability of such a structure conforms to the requirements of 
this part and the use of coal mine waste will not have a detrimental 
effect on downstream water quality or the environment due to acid 
seepage through the impounding structure. The stability of the structure 
and the potential impact of acid mine seepage through the impounding 
structure and shall be discussed in detail in the design plan submitted 
to the regulatory authority in accordance with Sec. 780.25 of this 
chapter.
    (b)(1) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste shall be designed, constructed and 
maintained in accordance with Sec. 817.49

[[Page 358]]

(a) and (c). Such structures may not be retained permanently as part of 
the approved postmining land use.
    (2) Each impounding structure constructed of coal mine waste or 
intended to impound coal mine waste that meets the criteria of Sec. 
77.216(a) of this title shall have sufficient spillway capacity to 
safely pass, adequate storage capacity to safely contain, or a 
combination of storage capacity and spillway capacity to safely control, 
the probable maximum precipitation of a 6-hour precipitation event, or 
greater event as specified by the regulatory authority.
    (c) Spillways and outlet works shall be designed to provide adequate 
protection against erosion and corrosion. Inlets shall be protected 
against blockage.
    (d) Drainage control. Runoff from areas above the disposal facility 
or runoff from the surface of the facility that may cause instability or 
erosion of the impounding structure shall be diverted into stabilized 
diversion channels designed to meet the requirements of Sec. 817.43 and 
designed to safely pass the runoff from a 100-year, 6-hour design 
precipitation event.
    (e) Impounding structures constructed of or impounding coal mine 
waste shall be designed so that at least 90 percent of the water stored 
during the design precipitation event can be removed within a 10-day 
period.
    (f) For an impounding structure constructed of or impounding coal 
mine waste, at least 90 percent of the water stored during the design 
precipitation event shall be removed within the 10-day period following 
the design precipitation event.

[48 FR 44031, Sept. 26, 1983, as amended at 53 FR 43608, Oct. 27, 1988]



Sec. 817.87  Coal mine waste: Burning and burned waste utilization.

    (a) Coal mine waste fires shall be extinguished by the person who 
conducts the surface mining activities, in accordance with a plan 
approved by the regulatory authority and the Mine Safety and Health 
Administration. The plan shall contain, at a minimum, provisions to 
ensure that only those persons authorized by the operator, and who have 
an understanding of the procedures to be used, shall be involved in the 
extinguishing operations.
    (b) No burning or unburned coal mine waste shall be removed from a 
permitted disposal area without a removal plan approved by the 
regulatory authority. Consideration shall be given to potential hazards 
to persons working or living in the vicinity of the structure.

[48 FR 44031, Sept. 26, 1983]



Sec. 817.89  Disposal of noncoal mine wastes.

    (a) Noncoal mine wastes including, but not limited to grease, 
lubricants, paints, flammable liquids, garbage, abandoned mining 
machinery, lumber and other combustible materials generated during 
mining activities shall be placed and stored in a controlled manner in a 
designated portion of the permit area. Placement and storage shall 
ensure that leachate and surface runoff do not degrade surface or ground 
water, that fires are prevented, and that the area remains stable and 
suitable for reclamation and revegetation compatible with the natural 
surroundings.
    (b) Final disposal of noncoal mine wastes shall be in a designated 
disposal site in the permit area or a State-approved solid waste 
disposal area. Disposal sites in the permit area shall be designed and 
constructed to ensure that leachate and drainage from the noncoal mine 
waste area does not degrade surface or underground water. Wastes shall 
be routinely compacted and covered to prevent combustion and wind-borne 
waste. When the disposal is completed, a minimum of 2 feet of soil cover 
shall be placed over the site, slopes stabilized, and revegetation 
accomplished in accordance with Sec. Sec. 817.111 through 817.116. 
Operation of the disposal site shall be conducted in accordance with all 
local, State, and Federal requirements.
    (c) At no time shall any noncoal mine waste be deposited in a refuse 
pile or impounding structure, nor shall any excavation for a noncoal 
mine waste disposal site be located within 8 feet of any coal outcrop or 
coal storage area.

[48 FR 44031, Sept. 26, 1983, as amended at 56 FR 65636, Dec. 17, 1991]

[[Page 359]]



Sec. 817.95  Stabilization of surface areas.

    (a) All exposed surface areas shall be protected and stabilized to 
effectively control erosion and air pollution attendant to erosion.
    (b) Rills and gullies which form in areas that have been regraded 
and topsoiled and which either (1) disrupt the approved postmining land 
use or the reestablishment of the vegetative cover, or (2) cause or 
contribute to a violation of water quality standards for receiving 
streams; shall be filled, regraded, or otherwise stabilized; topsoil 
shall be replaced; and the areas shall be reseeded or replanted.

[48 FR 1163, Jan. 10, 1983]



Sec. 817.97  Protection of fish, wildlife, and related environmental values.

    (a) The operator shall, to the extent possible using the best 
technology currently available, minimize disturbances and adverse 
impacts on fish, wildlife, and related environmental values and shall 
achieve enhancement of such resources where practicable.
    (b) Endangered and threatened species. No underground mining 
activity shall be conducted which is likely to jeopardize the continued 
existence of endangered or threatened species listed by the Secretary or 
which is likely to result in the destruction or adverse modification of 
designated critical habitats of such species in violation of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.). The 
operator shall promptly report to the regulatory authority any State- or 
federally-listed endangered or threatened species within the permit area 
of which the operator becomes aware. Upon notification, the regulatory 
authority shall consult with appropriate State and Federal fish and 
wildlife agencies and, after consultation, shall identify whether, and 
under what conditions, the operator may proceed.
    (c) Bald and golden eagles. No underground mining activity shall be 
conducted in a manner which would result in the unlawful taking of a 
bald or golden eagle, its nest, or any of its eggs. The operator shall 
promptly report to the regulatory authority any golden or bald eagle 
nest within the permit area of which the operator becomes aware. Upon 
notification, the regulatory authority shall consult with the U.S. Fish 
and Wildlife Service and also, where appropriate, the State fish and 
wildlife agency and, after consultation, shall identify whether, and 
under what conditions, the operator may proceed.
    (d) Nothing in this chapter shall authorize the taking of an 
endangered or threatened species or a bald or golden eagle, its nest, or 
any of its eggs in violation of the Endangered Species Act of 1973, as 
amended, 16 U.S.C. 1531 et seq., or the Bald Eagle Protection Act, as 
amended, 16 U.S.C. 668 et seq.
    (e) Each operator shall, to the extent possible using the best 
technology currently available--
    (1) Ensure that electric powerlines and other transmission 
facilities used for, or incidental to, underground mining activities on 
the permit area are designed and constructed to minimize electrocution 
hazards to raptors, except where the regulatory authority determines 
that such requirements are unnecessary;
    (2) Locate and operate haul and access roads so as to avoid or 
minimize impacts on important fish and wildlife species or other species 
protected by State or Federal law;
    (3) Design fences, overland conveyors, and other potential barriers 
to permit passage for large mammals except where the regulatory 
authority determines that such requirements are unnecessary; and
    (4) Fence, cover, or use other appropriate methods to exclude 
wildlife from ponds which contain hazardous concentrations of toxic-
forming materials.
    (f) Wetlands and habitats of unusually high value for fish and 
wildlife. The operator conducting underground mining activities shall 
avoid disturbances to, enhance where practicable, restore, or replace, 
wetlands, and riparian vegetation along rivers and streams and bordering 
ponds and lakes. Underground mining activities shall avoid disturbances 
to, enhance where practicable, or restore, habitats of unusually high 
value for fish and wildlife.
    (g) Where fish and wildlife habitat is to be a postmining land use, 
the plant species to be used on reclaimed areas

[[Page 360]]

shall be selected on the basis of the following criteria:
    (1) Their proven nutritional value for fish or wildlife.
    (2) Their use as cover for fish or wildlife.
    (3) Their ability to support and enhance fish or wildlife habitat 
after the release of performance bonds. The selected plants shall be 
grouped and distributed in a manner which optimizes edge effect, cover, 
and other benefits to fish and wildlife.
    (h) Where cropland is to be the postmining land use, and where 
appropriate for wildlife- and crop-management practices, the operator 
shall intersperse the fields with trees, hedges, or fence rows 
throughout the harvested area to break up large blocks of monoculture 
and to diversify habitat types for birds and other animals.
    (i) Where residential, public service, or industrial uses are to be 
the postmining land use, and where consistent with the approved 
postmining land use, the operator shall intersperse reclaimed lands with 
greenbelts utilizing species of grass, shrubs, and trees useful as food 
and cover for wildlife.

[48 FR 30328, June 30, 1983, as amended at 52 FR 47360, Dec. 11, 1987]



Sec. 817.99  Slides and other damage.

    At any time a slide occurs which may have a potential adverse effect 
on public, property, health, safety, or the environment, the person who 
conducts the underground mining activities shall notify the regulatory 
authority by the fastest available means and comply with any remedial 
measures required by the regulatory authority.



Sec. 817.100  Contemporaneous reclamation.

    Reclamation efforts, including but not limited to backfilling, 
grading, topsoil replacement, and revegetation, on all areas affected by 
surface impacts incident to an underground coal mine shall occur as 
contemporaneously as practicable with mining operations, except when 
such mining operations are conducted in accordance with a variance for 
concurrent surface and underground mining activities issued under Sec. 
785.18 of this chapter. The regulatory authority may establish schedules 
that define contemporaneous reclamation.

[48 FR 24652, June 1, 1983]



Sec. 817.102  Backfilling and grading: General requirements.

    (a) Disturbed areas shall be backfilled and graded to--
    (1) Achieve the approximate original contour, except as provided in 
paragraph (k) of this section;
    (2) Eliminate all highwalls, spoil piles, and depressions, except as 
provided in paragraph (h) (small depressions) and in paragraph (k)(2) 
(previously mined highwalls) of this section;
    (3) Achieve a postmining slope that does not exceed either the angle 
of repose or such lesser slope as is necessary to achieve a minimum 
long-term static safety factor of 1.3 and to prevent slides;
    (4) Minimize erosion and water pollution both on and off the site; 
and
    (5) Support the approved postmining land use.
    (b) Spoil, except as provided in paragraph (l) of this section, and 
except excess spoil disposed of in accordance with Sec. Sec. 817.71 
through 817.74, shall be returned to the mined-out surface area.
    (c) Spoil and waste materials shall be compacted where advisable to 
ensure stability or to prevent leaching of toxic materials.
    (d) Spoil may be placed on the area outside the mined-out surface 
area in nonsteep slope areas to restore the approximate original contour 
by blending the spoil into the surrounding terrain if the following 
requirements are met:
    (1) All vegetative and organic material shall be removed from the 
area.
    (2) The topsoil on the area shall be removed, segregated, stored, 
and redistributed in accordance with Sec. 817.22.
    (3) The spoil shall be backfilled and graded on the area in 
accordance with the requirements of this section.
    (e) Disposal of coal processing waste and underground development 
waste in the mined-out surface area shall be in accordance with 
Sec. Sec. 817.81 and 817.83, except that a long-term static safety 
factor of 1.3 shall be achieved.

[[Page 361]]

    (f) Exposed coal seams, acid- and toxic-forming materials, and 
combustible materials exposed, used, or produced during mining shall be 
adequately covered with nontoxic and noncombustible materials, or 
treated, to control the impact on surface and ground water in accordance 
with Sec. 817.41, to prevent sustained combustion, and to minimize 
adverse effects on plant growth and the approved postmining land use.
    (g) Cut-and-fill terraces may be allowed by the regulatory authority 
where--
    (1) Needed to conserve soil moisture, ensure stability, and control 
erosion on final-graded slopes, if the terraces are compatible with the 
approved postmining land use; or
    (2) Specialized grading, foundation conditions, or roads are 
required for the approved postmining land use, in which case the final 
grading may include a terrace of adequate width to ensure the safety, 
stability, and erosion control necessary to implement the postmining 
land-use plan.
    (h) Small depressions may be constructed if they are needed to 
retain moisture, minimize erosion, create and enhance wildlife habitat, 
or assist revegetation.
    (i) Permanent impoundments may be approved if they meet the 
requirements of Sec. Sec. 817.49 and 817.56 and if they are suitable 
for the approved postmining land use.
    (j) Preparation of final-graded surfaces shall be conducted in a 
manner that minimizes erosion and provides a surface for replacement of 
topsoil that will minimize slippage.
    (k) The postmining slope may vary from the approximate original 
contour when approval is obtained from the regulatory authority for--
    (1) A variance from approximate original contour requirements in 
accordance with Sec. 785.16 of this chapter; or
    (2) Incomplete elimination of highwalls in previously mined areas in 
accordance with Sec. 817.106.
    (l) Regrading of settled and revegetated fills to achieve 
approximate original contour at the conclusion of underground mining 
activities shall not be required if the conditions of paragraph (l)(1) 
or (l)(2) of this section are met.
    (1)(i) Settled and revegetated fills shall be composed of spoil or 
non-acid- or non-toxic-forming underground development waste.
    (ii) The spoil or underground development waste shall not be located 
so as to be detrimental to the environment, to the health and safety of 
the public, or to the approved postmining land use.
    (iii) Stability of the spoil or underground development waste shall 
be demonstrated through standard geotechnical analysis to be consistent 
with backfilling and grading requirements for material on the solid 
bench (1.3 static safety factor) or excess spoil requirements for 
material not placed on a solid bench (1.5 static safety factor).
    (iv) The surface of the spoil or underground development waste shall 
be vegetated according to Sec. 817.116, and surface runoff shall be 
controlled in accordance with Sec. 817.43.
    (2) If it is determined by the regulatory authority that disturbance 
of the existing spoil or underground development waste would increase 
environmental harm or adversely affect the health and safety of the 
public, the regulatory authority may allow the existing spoil or 
underground development waste pile to remain in place. The regulatory 
authority may require stabilization of such spoil or underground 
development waste in accordance with the requirements of paragraphs 
(l)(1)(i) through (l)(1)(iv) of this section.

[48 FR 23370, May 24, 1983, as amended at 48 FR 41735, Sept. 16, 1983]



Sec. 817.106  Backfilling and grading: Previously mined areas.

    (a) Remining operations on previously mined areas that contain a 
preexisting highwall shall comply with the requirements of Sec. Sec. 
817.102 through 817.107 of this chapter, except as provided in this 
section.
    (b) The requirements of Sec. 817.102(a) (1) and (2) requiring that 
elimination of highwalls shall not apply to remining operations where 
the volume of all reasonably available spoil is demonstrated in writing 
to the regulatory authority

[[Page 362]]

to be insufficient to completely backfill the reaffected or enlarged 
highwall. The highwall shall be eliminated to the maximum extent 
technically practical in accordance with the following criteria:
    (1) All spoil generated by the remining operation and any other 
reasonably available spoil shall be used to backfill the area. 
Reasonably available spoil in the immediate vicinity of the remining 
operation shall be included within the permit area.
    (2) The backfill shall be graded to a slope which is compatible with 
the approved postmining land use and which provides adequate drainage 
and long-term stability.
    (3) Any highwall remnant shall be stable and not pose a hazard to 
the public health and safety or to the environment. The operator shall 
demonstrate, to the satisfaction of the regulatory authority, that the 
highwall remnant is stable.
    (4) Spoil placed on the outslope during previous mining operations 
shall not be disturbed if such disturbances will cause instability of 
the remaining spoil or otherwise increase the hazard to the public 
health and safety or to the environment.

[48 FR 41735, Sept. 16, 1983, as amended at 51 FR 41737, Nov. 18, 1986]



Sec. 817.107  Backfilling and grading: Steep slopes.

    (a) Underground mining activities on steep slopes shall be conducted 
so as to meet the requirements of Sec. Sec. 817.102-817.106 and the 
requirements of this section.
    (b) The following materials shall not be placed on the downslope:
    (1) Spoil.
    (2) Waste materials of any type.
    (3) Debris, including that from clearing and grubbing.
    (4) Abandoned or disabled equipment.
    (c) Land above the highwall shall not be disturbed unless the 
regulatory authority finds that this disturbance will facilitate 
compliance with the environmental protection standards of this 
subchapter and the disturbance is limited to that necessary to 
facilitate compliance.
    (d) Woody materials shall not be buried in the backfilled area 
unless the regulatory authority determines that the proposed method for 
placing woody material within the backfill will not deteriorate the 
stable condition of the backfilled area.

[48 FR 23370, May 24, 1983, as amended at 48 FR 41735, Sept. 16, 1983]



Sec. 817.111  Revegetation: General requirements.

    (a) The permittee shall establish on regraded areas and on all other 
disturbed areas except water areas and surface areas of roads that are 
approved as part of the postmining land use, as vegetative cover that is 
in accordance with the approved permit and reclamation plan and that 
is--
    (1) Diverse, effective, and permanent;
    (2) Comprised of species native to the area, or of introduced 
species where desirable and necessary to achieve the approved postmining 
land use and approved by the regulatory authority;
    (3) At least equal in extent of cover to the natural vegetation of 
the area; and
    (4) Capable of stabilizing the soil surface from erosion.
    (b) The reestablished plant species shall--
    (1) Be compatible with the approved postmining land use;
    (2) Have the same seasonal characteristics of growth as the original 
vegetation;
    (3) Be capable of self-regeneration and plant succession;
    (4) Be compatible with the plant and animal species of the area; and
    (5) Meet the requirements of applicable State and Federal seed, 
poisonous and noxious plant, and introduced species laws or regulations.
    (c) The regulatory authority may grant exception to the requirements 
of paragraphs (b) (2) and (3) of this section when the species are 
necessary to achieve a quick-growing, temporary, stabilizing cover, and 
measures to establish permanent vegetation are included in the approved 
permit and reclamation plan.
    (d) When the regulatory authority approves a cropland postmining 
land use, the regulatory authority may grant exceptions to the 
requirements of paragraphs (a) (1), (3), (b) (2), and (3) of this 
section. The requirements of

[[Page 363]]

part 823 of this chapter apply to areas identified as prime farmland.

[48 FR 40161, Sept. 2, 1983]



Sec. 817.113  Revegetation: Timing.

    Disturbed areas shall be planted during the first normal period for 
favorable planting conditions after replacement of the plant-growth 
medium. The normal period for favorable planting is that planting time 
generally accepted locally for the type of plant materials selected.

[48 FR 40161, Sept. 2, 1983]



Sec. 817.114  Revegetation: Mulching and other soil stabilizing practices.

    Suitable mulch and other soil stabilizing practices shall be used on 
all areas that have been regraded and covered by topsoil or topsoil 
substitutes. The regulatory authority may waive this requirement if 
seasonal, soil, or slope factors result in a condition where mulch and 
other soil stabilizing practices are not necessary to control erosion 
and to promptly establish an effective vegetative cover.

[48 FR 40161, Sept. 2, 1983]



Sec. 817.116  Revegetation: Standards for success.

    (a) Success of revegetation shall be judged on the effectiveness of 
the vegetation for the approved postmining land use, the extent of cover 
compared to the cover occurring in natural vegetation of the area, and 
the general requirements of Sec. 817.111.
    (1) Standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority, described in writing, and made available to the public.
    (2) Standards for success shall include criteria representative of 
unmined lands in the area being reclaimed to evaluate the appropriate 
vegetation parameters of ground cover, production, or stocking. Ground 
cover, production, or stocking shall be considered equal to the approved 
success standard when they are not less than 90 percent of the success 
standard. The sampling techniques for measuring success shall use a 90-
percent statistical confidence interval (i.e., a one-sided test with a 
0.10 alpha error).
    (b) Standards for success shall be applied in accordance with the 
approved postmining land use and, at a minimum, the following 
conditions:
    (1) For areas developed for use as grazing land or pasture land, the 
ground cover and production of living plants on the revegetated area 
shall be at least equal to that of a reference area or such other 
success standards approved by the regulatory authority.
    (2) For areas developed for use as cropland, crop production on the 
revegetated area shall be at least equal to that of a reference area or 
such other success standards approved by the regulatory authority.
    (3) For areas to be developed for fish and wildlife habitat, 
recreation, undeveloped land, or forest products, success of vegetation 
shall be determined on the basis of tree and shrub stocking and 
vegetative ground cover. Such parameters are described as follows:
    (i) Minimum stocking and planting arrangements shall be specified by 
the regulatory authority on the basis of local and regional conditions 
and after consultation with and approval by the State agencies 
responsible for the administration of forestry and wildlife programs. 
Consultation and approval may occur on either a programwide or a permit-
specific basis.
    (ii) Trees and shrubs that will be used in determining the success 
of stocking and the adequacy of the plant arrangement shall have utility 
for the approved postmining land use. Trees and shrubs counted in 
determining such success shall be healthy and have been in place for not 
less than two growing seasons. At the time of bond release, at least 80 
percent of the trees and shrubs used to determine such success shall 
have been in place for 60 percent of the applicable minimum period of 
responsibility. The requirements of this section apply to trees and 
shrubs that have been seeded or transplanted and can be met when records 
of woody vegetation planted show that no woody plants were planted 
during the last two growing seasons of the responsibility period and, if 
any replanting of woody plants took place during the responsibility 
period, the total number planted during

[[Page 364]]

the last 60 percent of that period is less than 20 percent of the total 
number of woody plants required. Any replanting must be by means of 
transplants to allow for adequate accounting of plant stocking. This 
final accounting may include volunteer trees and shrubs of approved 
species. Volunteer trees and shrubs of approved species shall be deemed 
equivalent to planted specimens two years of age or older and can be 
counted towards success. Suckers on shrubby vegetation can be counted as 
volunteer plants when it is evident the shrub community is vigorous and 
expanding.
    (iii) Vegetative ground cover shall not be less than that required 
to achieve the approved postmining land use.
    (4) For areas to be developed for industrial, commercial, or 
residential use less than 2 years after regrading is completed, the 
vegetative ground cover shall not be less than that required to control 
erosion.
    (5) For areas previously disturbed by mining that were not reclaimed 
to the requirements of this subchapter and that are remined or otherwise 
redisturbed by surface coal mining operations, as a minimum, the 
vegetative ground cover shall be not less than the ground cover existing 
before redisturbance and shall be adequate to control erosion.
    (c)(1) The period of extended responsibility for successful 
revegetation shall begin after the last year of augmented seeding, 
fertilizing, irrigation, or other work, excluding husbandry practices 
that are approved by the regulatory authority in accordance with 
paragraph (c)(4) of this section.
    (2) In areas of more than 26.0 inches of annual average 
precipitation, the period of responsibility shall continue for a period 
of not less than:
    (i) Five full years, except as provided in paragraph (c)(2)(ii) of 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 2 
years of the responsibility period, except the first year. Areas 
approved for the other uses identified in paragraph (b) of this section 
shall equal or exceed the applicable success standard during the growing 
season of the last year of the responsibility period.
    (ii) Two full years for lands eligible for remining included in a 
permit for which a finding has been made under Sec. 773.15(m) of this 
chapter. To the extent that the success standards are established by 
paragraph (b)(5) of this section, the lands must equal or exceed the 
standards during the growing season of the last year of the 
responsibility period.
    (3) In areas of 26.0 inches or less average annual precipitation, 
the period of responsibility shall continue for a period of not less 
than:
    (i) Ten full years, except as provided in paragraph (c)(3)(ii) in 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazing land, pasture land, or cropland shall equal or 
exceed the approved success standard during the growing season of any 
two years after year six of the responsibility period. Areas approved 
for the other uses identified in paragraph (b) of this section shall 
equal or exceed the applicable success standard during the growing 
season of the last year of the responsibility period.
    (ii) Five full years for lands eligible for remining included in a 
permit for which a finding has been made under Sec. 773.15(m) of this 
chapter. To the extent that the success standards are established by 
paragraph (b)(5) of this section, the lands must equal or exceed the 
standards during the growing seasons of the last two consecutive years 
of the responsibility period.
    (4) The regulatory authority may approve selective husbandry 
practices, excluding augmented seeding, fertilization, or irrigation, 
provided it obtains prior approval from the Director in accordance with 
Sec. 732.17 of this chapter that the practices are normal husbandry 
practices, without extending the period of responsibility for 
revegetation success and bond liability, if such practices can be 
expected to continue as part of the postmining land use or if 
discontinuance of the practices after the liability period expires will 
not reduce the probability of permanent revegetation success. Approved

[[Page 365]]

practices shall be normal husbandry practices within the region for 
unmined lands having land uses similar to the approved postmining land 
use of the disturbed area, including such practices as disease, pest, 
and vermin control; and any pruning, reseeding, and transplanting 
specifically necessitated by such actions.

[48 FR 40161, Sept. 2, 1983, as amended at 53 FR 34643, Sept. 7, 1988; 
60 FR 58492, Nov. 27, 1995; 71 FR 51706, Aug. 30, 2006; 73 FR 67631, 
Nov. 14, 2008]



Sec. 817.121  Subsidence control.

    (a) Measures to prevent or minimize damage. (1) The permittee must 
either adopt measures consistent with known technology that prevent 
subsidence from causing material damage to the extent technologically 
and economically feasible, maximize mine stability, and maintain the 
value and reasonably foreseeable use of surface lands or adopt mining 
technology that provides for planned subsidence in a predictable and 
controlled manner.
    (2) If a permittee employs mining technology that provides for 
planned subsidence in a predictable and controlled manner, the permittee 
must take necessary and prudent measures, consistent with the mining 
method employed, to minimize material damage to the extent 
technologically and economically feasible to non-commercial buildings 
and occupied residential dwellings and structures related thereto except 
that measures required to minimize material damage to such structures 
are not required if:
    (i) The permittee has the written consent of their owners or
    (ii) Unless the anticipated damage would constitute a threat to 
health or safety, the costs of such measures exceed the anticipated 
costs of repair.
    (3) Nothing in this part prohibits the standard method of room-and-
pillar mining.
    (b) The operator shall comply with all provisions of the approved 
subsidence control plan prepared pursuant to Sec. 784.20 of this 
chapter.
    (c) Repair of damage--(1) Repair of damage to surface lands. The 
permittee must correct any material damage resulting from subsidence 
caused to surface lands, to the extent technologically and economically 
feasible, by restoring the land to a condition capable of maintaining 
the value and reasonably foreseeable uses that it was capable of 
supporting before subsidence damage.
    (2) Repair or compensation for damage to non-commercial buildings 
and dwellings and related structures. The permittee must promptly 
repair, or compensate the owner for, material damage resulting from 
subsidence caused to any non-commercial building or occupied residential 
dwelling or structure related thereto that existed at the time of 
mining. If repair option is selected, the permittee must fully 
rehabilitate, restore or replace the damaged structure. If compensation 
is selected, the permittee must compensate the owner of the damaged 
structure for the full amount of the decrease in value resulting from 
the subsidence-related damage. The permittee may provide compensation by 
the purchase, before mining, of a non-cancelable premium-prepaid 
insurance policy. The requirements of this paragraph apply only to 
subsidence-related damage caused by underground mining activities 
conducted after October 24, 1992.
    (3) Repair or compensation for damage to other structures. The 
permittee must, to the extent required under applicable provisions of 
State law, either correct material damage resulting from subsidence 
caused to any structures or facilities not protected by paragraph (c)(2) 
of this section by repairing the damage or compensate the owner of the 
structures or facilities for the full amount of the decrease in value 
resulting from the subsidence. Repair of damage includes rehabilitation, 
restoration, or replacement of damaged structures or facilities. 
Compensation may be accomplished by the purchase before mining of a non-
cancelable premium-prepaid insurance policy.
    (4) Rebuttable presumption of causation by subsidence--(i) 
Rebuttable presumption of causation for damage within angle of draw. If 
damage to any non-commercial building or occupied residential dwelling 
or structure related thereto occurs as a result of earth movement within 
an area determined by projecting a specified angle of draw from

[[Page 366]]

the outermost boundary of any underground mine workings to the surface 
of the land, a rebuttable presumption exists that the permittee caused 
the damage. The presumption will normally apply to a 30-degree angle of 
draw. A State regulatory authority may amend its program to apply the 
presumption to a different angle of draw if the regulatory authority 
shows in writing that the angle has a more reasonable basis than the 30-
degree angle of draw, based on geotechnical analysis of the factors 
affecting potential surface impacts of underground coal mining 
operations in the State.
    (ii) Approval of site-specific angle of draw. A permittee or permit 
applicant may request that the presumption apply to an angle of draw 
different from that established in the regulatory program. The 
regulatory authority may approve application of the presumption to a 
site-specific angle of draw different than that contained in the State 
or Federal program based on a site-specific analysis submitted by an 
applicant. To establish a site-specific angle of draw, an applicant must 
demonstrate and the regulatory authority must determine in writing that 
the proposed angle of draw has a more reasonable basis than the standard 
set forth in the State or Federal program, based on a site-specific 
geotechnical analysis of the potential surface impacts of the mining 
operation.
    (iii) No presumption where access for pre-subsidence survey is 
denied. If the permittee was denied access to the land or property for 
the purpose of conducting the pre-subsidence survey in accordance with 
Sec. 784.20(a) of this chapter, no rebuttable presumption will exist.
    (iv) Rebuttal of presumption. The presumption will be rebutted if, 
for example, the evidence establishes that: The damage predated the 
mining in question; the damage was proximately caused by some other 
factor or factors and was not proximately caused by subsidence; or the 
damage occurred outside the surface area within which subsidence was 
actually caused by the mining in question.
    (v) Information to be considered in determination of causation. In 
any determination whether damage to protected structures was caused by 
subsidence from underground mining, all relevant and reasonably 
available information will be considered by the regulatory authority.
    (5) Adjustment of bond amount for subsidence damage. When 
subsidence-related material damage to land, structures or facilities 
protected under paragraphs (c)(1) through (c)(3) of this section occurs, 
or when contamination, diminution, or interruption to a water supply 
protected under Sec. 817.41 (j) occurs, the regulatory authority must 
require the permittee to obtain additional performance bond in the 
amount of the estimated cost of the repairs if the permittee will be 
repairing, or in the amount of the decrease in value if the permittee 
will be compensating the owner, or in the amount of the estimated cost 
to replace the protected water supply if the permittee will be replacing 
the water supply, until the repair, compensation, or replacement is 
completed. If repair, compensation, or replacement is completed within 
90 days of the occurrence of damage, no additional bond is required. The 
regulatory authority may extend the 90-day time frame, but not to exceed 
one year, if the permittee demonstrates and the regulatory authority 
finds in writing that subsidence is not complete, that not all probable 
subsidence-related material damage has occurred to lands or protected 
structures, or that not all reasonably anticipated changes have occurred 
affecting the protected water supply, and that therefore it would be 
unreasonable to complete within 90 days the repair of the subsidence-
related material damage to lands or protected structures, or the 
replacement of protected water supply.
    (d) Underground mining activities shall not be conducted beneath or 
adjacent to (1) public buildings and facilities; (2) churches, schools, 
and hospitals; or (3) impoundments with a storage capacity of 20 acre-
feet or more or bodies of water with a volume of 20 acre-feet or more, 
unless the subsidence control plan demonstrates that subsidence will not 
cause material damage to, or reduce the reasonably foreseeable use of, 
such features or facilities. If the regulatory authority determines that 
it is necessary in order

[[Page 367]]

to minimize the potential for material damage to the features or 
facilities described above or to any aquifer or body of water that 
serves as a significant water source for any public water supply system, 
it may limit the percentage of coal extracted under or adjacent thereto.
    (e) If subsidence causes material damage to any of the features or 
facilities covered by paragraph (d) of this section, the regulatory 
authority may suspend mining under or adjacent to such features or 
facilities until the subsidence control plan is modified to ensure 
prevention of further material damage to such features or facilities.
    (f) The regulatory authority shall suspend underground mining 
activities under urbanized areas, cities, towns, and communities, and 
adjacent to industrial or commercial buildings, major impoundments, or 
perennial streams, if imminent danger is found to inhabitants of the 
urbanized areas, cities, towns, or communities.
    (g) Within a schedule approved by the regulatory authority, the 
operator shall submit a detailed plan of the underground workings. The 
detailed plan shall include maps and descriptions, as appropriate, of 
significant features of the underground mine, including the size, 
configuration, and approximate location of pillars and entries, 
extraction ratios, measure taken to prevent or minimize subsidence and 
related damage, areas of full extraction, and other information required 
by the regulatory authority. Upon request of the operator, information 
submitted with the detailed plan may be held as confidential, in 
accordance with the requirements of Sec. 773.6(d) of this chapter.

[48 FR 24652, June 1, 1983, as amended at 60 FR 16749, Mar. 31, 1995; 65 
FR 79670, Dec. 19, 2000]

    Effective Date Note: At 64 FR 71653, Dec. 22, 1999, Sec. 817.121, 
paragraphs (c)(4)(i) through (iv) were suspended, effective Dec, 22, 
1999.



Sec. 817.122  Subsidence control: Public notice.

    At least 6 months prior to mining, or within that period if approved 
by the regulatory authority, the underground mine operator shall mail a 
notification to all owners and occupants of surface property and 
structures above the underground workings. The notification shall 
include, at a minimum, identification of specific areas in which mining 
will take place, dates that specific areas will be undermined, and the 
location or locations where the operator's subsidence control plan may 
be examined.

[48 FR 24652, June 1, 1983]



Sec. 817.131  Cessation of operations: Temporary.

    (a) Each person who conducts underground mining activities shall 
effectively support and maintain all surface access openings to 
underground operations, and secure surface facilities in areas in which 
there are no current operations, but operations are to be resumed under 
an approved permit. Temporary abandonment shall not relieve a person of 
his or her obligation to comply with any provisions of the approved 
permit.
    (b) Before temporary cessation of mining and reclamation operations 
for a period of thirty days or more, or as soon as it is known that a 
temporary cessation will extend beyond 30 days, each person who conducts 
underground mining activities shall submit to the regulatory authority a 
notice of intention to cease or abandon operations. This notice shall 
include a statement of the exact number of surface acres and the 
horizontal and vertical extent of sub-surface strata which have been in 
the permit area prior to cessation or abandonment, the extent and kind 
of reclamation of surface area which will have been accomplished, and 
identification of the backfilling, regrading, revegetation, 
environmental monitoring, underground opening closures and water 
treatment activities that will continue during the temporary cessation.



Sec. 817.132  Cessation of operations: Permanent.

    (a) The person who conducts underground mining activities shall 
close or backfill or otherwise permanently reclaim all affected areas, 
in accordance with this chapter and according to the permit approved by 
the regulatory authority.

[[Page 368]]

    (b) All surface equipment, structures, or other facilities not 
required for continued underground mining activities and monitoring, 
unless approved as suitable for the postmining land use or environmental 
monitoring, shall be removed and the affected lands reclaimed.



Sec. 817.133  Postmining land use.

    (a) General. All disturbed areas shall be restored in a timely 
manner to conditions that are capable of supporting--
    (1) The uses they were capable of supporting before any mining; or
    (2) Higher or better uses.
    (b) Determining premining uses of land. The premining uses of land 
to which the postmining land use is compared shall be those uses which 
the land previously supported, if the land has not been previously mined 
and has been properly managed. The postmining land use for land that has 
been previously mined and not reclaimed shall be judged on the basis of 
the land use that existed prior to any mining: Provided that, if the 
land cannot be reclaimed to the land use that existed prior to any 
mining because of the previously mined condition, the postmining land 
use shall be judged on the basis of the highest and best use that can be 
achieved which is compatible with surrounding areas and does not require 
the disturbance of areas previously unaffected by mining.
    (c) Criteria for alternative postmining land uses. Higher or better 
uses may be approved by the regulatory authority as alternative 
postmining land uses after consultation with the landowner or the land 
management agency having jurisdiction over the lands, if the proposed 
uses meet the following criteria:
    (1) There is a reasonable likelihood for achievement of the use.
    (2) The use does not present any actual or probable hazard to public 
health and safety, or threat of water diminution or pollution.
    (3) The use will not--
    (i) Be impractical or unreasonable;
    (ii) Be inconsistent with applicable land use policies or plans;
    (iii) Involve unreasonable delay in implementation; or
    (iv) Cause or contribute to violation of Federal, State, or local 
law.
    (d) Approximate original contour: Criteria for variance. Surface 
coal mining operations that meet the requirements of this paragraph may 
be conducted under a variance from the requirement to restore disturbed 
areas to their approximate original contour, if the following 
requirements are satisfied:
    (1) The regulatory authority grants the variance under a permit 
issued in accordance with Sec. 785.16 of this chapter.
    (2) The alternative postmining land use requirements of paragraph 
(c) of this section are met.
    (3) All applicable requirements of the Act and the regulatory 
program, other than the requirement to restore disturbed areas to their 
approximate original contour, are met.
    (4) After consultation with the appropriate land use planning 
agencies, if any, the potential use is shown to constitute an equal or 
better economic or public use.
    (5) The proposed use is designed and certified by a qualified 
registered professional engineer in conformance with professional 
standards established to assure the stability, drainage, and 
configuration necessary for the intended use of the site.
    (6) After approval, where required, of the appropriate State 
environmental agencies, the watershed of the permit and adjacent areas 
is shown to be improved.
    (7) The highwall is completely backfilled with spoil material, in a 
manner which results in a static factor of safety of at least 1.3, using 
standard geotechnical analysis.
    (8) Only the amount of spoil as is necessary to achieve the 
postmining land use, ensure the stability of spoil retained on the 
bench, and meet all other requirements of the Act and this chapter is 
placed off the mine bench. All spoil not retained on the bench shall be 
placed in accordance with Sec. Sec. 817.71 through 817.74 of this 
chapter.
    (9) The surface landowner of the permit area has knowingly 
requested, in writing, that a variance be granted, so as to render the 
land, after reclamation, suitable for an industrial, commercial, 
residential, or public use (including recreational facilities).
    (10) Federal, State, and local government agencies with an interest 
in the

[[Page 369]]

proposed land use have an adequate period in which to review and comment 
on the proposed use.

[48 FR 33905, Sept. 1, 1983]



Sec. 817.150  Roads: General.

    (a) Road classification system. (1) Each road, as defined in Sec. 
701.5 of this chapter, shall be classified as either a primary road or 
an ancillary road.
    (2) A primary road is any road which is--
    (i) Used for transporting coal or spoil;
    (ii) Frequently used for access or other purposes for a period in 
excess of six months; or
    (iii) To be retained for an approval postmining land use.
    (3) An ancillary road is any road not classified as a primary road
    (b) Performance standards. Each road shall be located, designed, 
constructed, reconstructed, used, maintained, and reclaimed so as to:
    (1) Control or prevent erosion, siltation, and the air pollution 
attendant to erosion, including road dust and dust occurring on other 
exposed surfaces, by measures such as vegetating, watering, using 
chemical or other dust suppressants, or otherwise stabilizing all 
exposed surfaces in accordance with current, prudent engineering 
practices;
    (2) Control or prevent damage to fish, wildlife, or otheir habitat 
and related environmental values;
    (3) Control or prevent additional contributions of suspended solids 
to streamflow or runoff outside the permit area;
    (4) Neither cause nor contribute to, directly or indirectly, the 
violation of State or Federal water quality standard applicable to 
receiving waters;
    (5) Refrain from seriously altering the normal flow of water in 
streambeds or drainage channels;
    (6) Prevent or control damage to public or private property, 
including the prevention or mitigation of adverse effects on lands 
within the boundaries of units of the National Park System, the National 
Wildlife Refuge System, the National System of Trails, the National 
Wilderness Preservation System, the Wild and Scenic Rivers System, 
including designated study rivers, and National Recreation Areas 
designated by Act of Congress; and
    (7) Use nonacid- and nontoxic-forming substances in road surfacing.
    (c) Design and construction limits and establishment of design 
criteria. To ensure environmental protection appropriate for their 
planned duration and use, including consideration of the type and size 
of equipment used, the design and construction or reconstruction of 
roads shall incorporate appropriate limits for grade, width, surface 
materials, surface drainage control, culvert placement, and culvert 
size, in accordance with current, prudent engineering practices, and any 
necessary design criteria established by the regulatory authority.
    (d) Location. (1) No part of any road shall be located in the 
channel of an intermittent or perennial stream unless specifically 
approved by the regulatory authority in accordance with applicable 
Sec. Sec. 817.41 through 817.43 and 817.57 of this chapter.
    (2) Roads shall be located to minimize downstream sedimentation and 
flooding.
    (e) Maintenance. (1) A road shall be maintained to meet the 
performance standards of this part and any additional criteria specified 
by the regulatory authority;
    (2) A road damaged by a catastrophic event, such as a flood or 
earthquake, shall be repaired as soon as is practicable after the damage 
has occurred.
    (f) Reclamation. A road not to be retained under an approved 
postmining land use shall be reclaimed in accordance with the approved 
reclamation plan as soon as practicable after it is no longer needed for 
mining and reclamation operations. This reclamation shall include:
    (1) Closing the road to traffic;
    (2) Removing all bridges and culverts unless approved as part of the 
postmining land use;
    (3) Removing or otherwise disposing of road-surfacing materials that 
are incompatible with the postmining land use and revegetation 
requirements;
    (4) Reshaping cut and fill slopes as necessary to be compatible with 
the postmining land use and to complement the natural drainage pattern 
of the surrounding terrain;

[[Page 370]]

    (5) Protecting the natural drainage patterns by installing dikes or 
cross drains as necessary to control surface runoff and erosion; and
    (6) Scarifying or ripping the roadbed, replacing topsoil or 
substitute material and revegetating disturbed surfaces in accordance 
with Sec. Sec. 817.22 and 817.111 through 817.116 of this chapter.

[53 FR 45213, Nov. 8, 1988]



Sec. 817.151  Primary roads.

    Primary roads shall meet the requirements of Sec. 817.150 and the 
additional requirements of this section.
    (a) Certification. The construction or reconstruction of primary 
roads shall be certified in a report to the regulatory authority by a 
qualified registered professional engineer, or in any State which 
authorizes land surveyors to certify the construction or reconstruction 
of primary roads, a qualified registered professional land surveyor, 
with experience in the design and construction of roads. The report 
shall indicate that the primary road has been constructed or 
reconstructed as designed and in accordance with the approved plan.
    (b) Safety factor. Each primary road embankment shall have a minimum 
static factor of 1.3 or meet the requirements established under Sec. 
784.24(c).
    (c) Location. (1) To minimize erosion, a primary road shall be 
located, insofar as is practicable, on the most stable available 
surface.
    (2) Fords of perennial or intermittent streams by primary roads are 
prohibited unless they are specifically approved by the regulatory 
authority as temporary routes during periods of road construction.
    (d) Drainage control. In accordance with the approved plan--
    (1) Each primary road shall be constructed or reconstructed, and 
maintained to have adequate drainage control, using structures such as, 
but not limited to bridges, ditches, cross drains, and ditch relief 
drains. The drainage control system shall be designed to safely pass the 
peak runoff from a 10-year, 6-hour precipitation event, or greater event 
as specified by the regulatory authority;
    (2) Drainage pipes and culverts shall be installed as designed, and 
maintained in a free and operating condition and to prevent or control 
erosion at inlets and outlets;
    (3) Drainage ditches shall be constructed and maintained to prevent 
uncontrolled drainage over the road surface and embankment;
    (4) Culverts shall be installed and maintained to sustain the 
vertical soil pressure, the passive resistance of the foundation, and 
the weight of vehicles using the road;
    (5) Natural stream channels shall not be altered or relocated 
without the prior approval of the regulatory authority in accordance 
with applicable Sec. Sec. 816.41 through 816.43 and 816.57 of this 
chapter; and
    (6) Except as provided in paragraph (c)(2) of this section, 
structures for perennial or intermittent stream channel crossings shall 
be made using bridges, culverts, low-water crossings, or other 
structures designed, constructed, and maintained using current, prudent 
engineering practices. The regulatory authority shall ensure that low-
water crossings are designed, constructed, and maintained to prevent 
erosion of the structure or streambed and additional contributions of 
suspended solids to streamflow.
    (e) Surfacing. Primary roads shall be surfaced with material 
approved by the regulatory authority as being sufficiently durable for 
the anticipated volume of traffic and the weight and speed of vehicles 
using the road.

[53 FR 45213, Nov. 8, 1988]



Sec. 817.180  Utility installations.

    All underground mining activities shall be conducted in a manner 
which minimizes damage, destruction, or disruption of services provided 
by oil, gas, and water wells; oil, gas, and coal-slurry pipelines, 
railroads; electric and telephone lines; and water and sewage lines 
which pass over, under, or through the permit area, unless otherwise 
approved by the owner of those facilities and the regulatory authority.

[48 FR 20401, May 5, 1983]



Sec. 817.181  Support facilities.

    (a) Support facilities shall be operated in accordance with a permit 
issued for the mine or coal preparation

[[Page 371]]

plant to which it is incident or from which its operation results.
    (b) In addition to the other provisions of this part, support 
facilities shall be located, maintained, and used in a manner that--
    (1) Prevents or controls erosion and siltation, water pollution, and 
damage to public or private property; and
    (2) To the extent possible using the best technology currently 
available--
    (i) Minimizes damage to fish, wildlife, and related environmental 
values; and
    (ii) Minimizes additional contributions of suspended solids to 
streamflow or runoff outside the permit area. Any such contributions 
shall not be in excess of limitations of State or Federal law.

[48 FR 20401, May 5, 1983]



Sec. 817.200  Interpretative rules related to general performance standards.

    The following interpretations of rules promulgated in part 817 of 
this chapter have been adopted by the Office of Surface Mining 
Reclamation and Enforcement.
    (a)-(b) [Reserved]
    (c) Interpretation of Sec. 816.22(e)--Topsoil Removal. (1) Results 
of physical and chemical analyses of overburden and topsoil to 
demonstrate that the resulting soil medium is equal to or more suitable 
for sustaining revegetation than the available topsoil, provided that 
trials, and tests are certified by an approved laboratory in accordance 
with 30 CFR 816.22(e)(1)(ii), may be obtained from any one or a 
combination of the following sources:
    (i) U.S. Department of Agriculture Soil Conservation Service 
published data based on established soil series;
    (ii) U.S. Department of Agriculture Soil Conservation Service 
Technical Guides;
    (iii) State agricultural agency, university, Tennessee Valley 
Authority, Bureau of Land Management or U.S. Department of Agriculture 
Forest Service published data based on soil series properties and 
behavior, or
    (iv) Results of physical and chemical analyses, field site trials, 
or greenhouse tests of the topsoil and overburden materials (soil 
series) from the permit area.
    (2) If the operator demonstrates through soil survey or other data 
that the topsoil and unconsolidated material are insufficient and 
substitute materials will be used, only the substitute materials must be 
analyzed in accordance with 30 CFR 816.22(e)(1)(i).
    (d) Interpretation of Sec. 817.133: Postmining land use. (1) The 
requirements of 30 CFR 784.15(a)(2), for approval of an alternative 
postmining land use, may be met by requesting approval through the 
permit revision procedures of 30 CFR 774.13 rather than requesting such 
approval through the permit application. The original permit 
application, however, must demonstrate that the land will be returned to 
its premining land use capability as required by 30 CFR 817.133(a).

An application for a permit revision of this type, (i) must be submitted 
in accordance with the filing deadlines of 30 CFR 774.13, (ii) shall 
constitute a significant alteration from the mining operations 
contemplated by the original permit, and (iii) shall be subject to the 
requirements of 30 CFR part 773 and 775.
    (2) [Reserved]

[45 FR 26000, Apr. 16, 1980, as amended at 45 FR 39447, June 10, 1980; 
45 FR 64908, Oct. 1, 1980; 45 FR 73946, Nov. 7, 1980; 48 FR 44781, Sept. 
30, 1983]



PART 819_SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS-AUGER MINING--Table 

of Contents



Sec.
819.1 Scope.
819.11 Auger mining: General.
819.13 Auger mining: Coal recovery.
819.15 Auger mining: Hydrologic balance.
819.17 Auger mining: Subsidence protection.
819.19 Auger mining: Backfilling and grading.
819.21 Auger mining: Protection of underground mining.

    Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq.

    Source: 48 FR 19322, Apr. 28, 1983, unless otherwise noted.



Sec. 819.1  Scope.

    This part sets environmental protection performance standards for 
surface coal mining and reclamation operations involving auger mining.

[[Page 372]]



Sec. 819.11  Auger mining: General.

    (a) Auger mining operations shall be conducted in accordance with 
the requirements of part 816 of this chapter, except as provided in this 
part.
    (b) The regulatory authority may prohibit auger mining, if necessary 
to--
    (1) Maximize the utilization, recoverability, or conservation of the 
solid-fuel resource, or
    (2) Protect against adverse water-quality impacts.



Sec. 819.13  Auger mining: Coal recovery.

    (a) Auger mining shall be conducted so as to maximize the 
utilization and conservation of the coal in accordance with Sec. 816.59 
of this chapter.
    (b) Auger mining shall be planned and conducted to maximize 
recoverability of mineral reserves remaining after the operation and 
reclamation are complete.
    (c) Each person who conducts auger mining operations shall leave 
areas of undisturbed coal, as approved by the regulatory authority, to 
provide access for future underground mining activities to coal reserves 
remaining after augering is completed, unless it is established that the 
coal reserves have been depleted or are so limited in thickness or 
extent that it will not be practicable to recover the remaining coal. 
This determination shall be made by the regulatory authority upon 
presentation of appropriate technical evidence by the operator.



Sec. 819.15  Auger mining: Hydrologic balance.

    (a) Auger mining shall be planned and conducted to minimize 
disturbances of the prevailing hydrologic balance in accordance with the 
requirements of Sec. Sec. 816.41 and 816.42 of this chapter.
    (b) All auger holes, except as provided in paragraph (c) of this 
section, shall be--
    (1) Sealed within 72 hours after completion with an impervious and 
noncombustible material, if the holes are discharging water containing 
acid-or toxic-forming material. If sealing is not possible within 72 
hours, the discharge shall be treated commencing within 72 hours after 
completion to meet applicable effluent limitations and water-quality 
standards until the holes are sealed; and
    (2) Sealed with an impervious noncombustible material, as 
contemporaneously as practicable with the augering operation, as 
approved by the regulatory authority, if the holes are not discharging 
water containing acid-or toxic-forming material.
    (c) Auger holes need not be sealed with an impervious material so as 
to prevent drainage if the regulatory authority determines that--
    (1) The resulting impoundment of water may create a hazard to the 
environment or public health or safety, and
    (2) The drainage from the auger holes will--
    (i) Not pose a threat of pollution to surface water, and
    (ii) Comply with the requirements of Sec. Sec. 816.41 and 816.42 of 
this chapter.



Sec. 819.17  Auger mining: Subsidence protection.

    Auger mining shall be conducted in accordance with the requirements 
of Sec. 817.121 (a) and (c) of this chapter.



Sec. 819.19  Auger mining: Backfilling and grading.

    (a) General. Auger mining shall be conducted in accordance with the 
backfilling and grading requirements of Sec. Sec. 816.102 and 816.104 
through 816.106 of this chapter.
    (b) Remining. Where auger mining operations affect previously mined 
areas that were not reclaimed to the standards of this chapter and the 
volume of all reasonably available spoil is demonstrated in writing to 
the regulatory authority to be insufficient to completely backfill the 
highwall, the highwall shall be eliminated to the maximum extent 
technically practical in accordance with the following criteria:
    (1) The person who conducts the auger mining operation shall 
demonstrate to the regulatory authority that the backfill, designed by a 
qualified registered professional engineer, has a minimum static safety 
factor for the stability of the backfill of at least 1.3.
    (2) All spoil generated by the auger mining operation and any 
associated

[[Page 373]]

surface coal mining and reclamation operation, and any other reasonably 
available spoil shall be used to backfill the area. Reasonably available 
spoil shall include spoil generated by the mining operation and other 
spoil located in the permit area that is accessible and available for 
use and that when rehandled will not cause a hazard to the public safety 
or significant damage to the environment. For this purpose, the permit 
area shall include spoil in the immediate vicinity of the auger mining 
operation.
    (3) The coal seam mined shall be covered with a minimum of 4 feet of 
nonacid-, nontoxic-forming material and the backfill graded to a slope 
which is compatible with the approved postmining land use and which 
provides adequate drainage and long-term stability.
    (4) Any remnant of the highwall shall be stable and not pose a 
hazard to the public health and safety or to the environment.
    (5) Spoil placed on the outslope during previous mining operations 
shall not be disturbed if such disturbances will cause instability of 
the remaining spoil or otherwise increase the hazard to the public 
health and safety or to the environment.



Sec. 819.21  Auger mining: Protection of underground mining.

    Auger holes shall not extend closer than 500 feet (measured 
horizontally) to any abandoned or active underground mine workings, 
except as approved in accordance with Sec. 816.79 of this chapter.



PART 820_SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS_ANTHRACITE MINES IN 

PENNSYLVANIA--Table of Contents



Sec.
820.1 Scope.
820.2 Objective.
820.11 Performance standards: Anthracite mines in Pennsylvania.

    Authority: Secs. 102, 201, 501, 503, 504, 529, Pub. L. 95-97, 91 
Stat. 448, 449, 467, 470, 471, 514 (30 U.S.C. 1202, 1211, 1251, 1253, 
1254, 1279).



Sec. 820.1  Scope.

    This part sets forth environmental protection performance standards 
for anthracite surface coal mining and reclamation operations in 
Pennsylvania.

[44 FR 15449, Mar. 13, 1979]



Sec. 820.2  Objective.

    This part implements subsection 529(a) of the Act, which requires 
the Secretary to adopt special performance standards for anthracite 
mines regulated by special environmental protection performance 
standards of a State as of the date of enactment of the Act.

[44 FR 15449, Mar. 13, 1979]



Sec. 820.11  Performance standards: Anthracite mines in Pennsylvania.

    Anthracite mines in Pennsylvania, as specified in section 529 of the 
Act, shall comply with its approved State program, including 
Commonwealth of Pennsylvania statutes and regulations, and revisions 
thereto that are approved by OSM pursuant to part 732 of this chapter.

[47 FR 44943, Oct. 12, 1982]



PART 822_SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS_OPERATIONS IN 

ALLUVIAL VALLEY FLOORS--Table of Contents



Sec.
822.1 Scope.
822.10 Information collection.
822.11 Essential hydrologic functions.
822.12 Protection of agricultural activities.
822.13 Monitoring.

    Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq.

    Source: 48 FR 29822, June 28, 1983, unless otherwise noted.



Sec. 822.1  Scope.

    This part sets forth additional requirements for surface coal mining 
and reclamation operations on or which affect alluvial valley floors in 
the arid and semiarid regions of the country.



Sec. 822.10  Information collection.

    The information collection requirements contained in Sec. 822.13 
have been approved by the Office of Management

[[Page 374]]

and Budget under 44 U.S.C. 3507 and assigned clearance number 1029-0049. 
The information is being collected to meet the requirements of sections 
510(b)(5) and 515(b)(10)(F) of the Act which provide the information 
collection requirements and performance standards for alluvial valley 
floors. This information will be used to enable the regulatory authority 
to assess the impact of the proposed operation during the permanent 
regulatory program. The obligation to respond is mandatory.



Sec. 822.11  Essential hydrologic functions.

    (a) The operator of a surface coal mining and reclamation operation 
shall minimize disturbances to the hydrologic balance by preserving 
throughout the mining and reclamation process the essential hydrologic 
functions of an alluvial valley floor not within the permit area.
    (b) The operator of a surface coal mining and reclamation operation 
shall minimize disturbances to the hydrologic balance within the permit 
area by reestablishing throughout the mining and reclamation process the 
essential hydrologic functions of alluvial valley floors.



Sec. 822.12  Protection of agricultural activities.

    (a) Prohibitions. Surface coal mining and reclamation operations 
shall not: (1) Interrupt, discontinue, or preclude farming on alluvial 
valley floors; or (2) cause material damage to the quantity or quality 
of water in surface or underground water systems that supply alluvial 
valley floors.
    (b) Statutory exclusions. The prohibitions of paragraph (a) of this 
section shall not apply--
    (1) Where the premining land use of an alluvial valley floor is 
undeveloped rangeland which is not significant to farming;
    (2) Where farming on the alluvial valley floor that would be 
affected by the surface coal mining operation is of such small acreage 
as to be of negligible impact on the farm's agricultural production;
    (3) To any surface coal mining and reclamation operation that, in 
the year preceding August 3, 1977--
    (i) Produced coal in commercial quantities and was located within or 
adjacent to an alluvial valley floor; or
    (ii) Obtained specific permit approval by the State regulatory 
authority to conduct surface coal mining and reclamation operations 
within an alluvial valley floor; or
    (4) To any land that is the subject of an application for renewal or 
revision of a permit issued pursuant to the Act which is an extension of 
the original permit, insofar as: (i) The land was previously identified 
in a reclamation plan submitted under either part 780 or 784 of this 
chapter, and (ii) the original permit area was excluded from the 
protection of paragraph (a) of this section for a reason set forth in 
paragraph (b)(3) of this section.



Sec. 822.13  Monitoring.

    (a) A monitoring system shall be installed, maintained, and operated 
by the permittee on all alluvial valley floors during surface coal 
mining and reclamation operations and continued until all bonds are 
released in accordance with Subchapter J of this chapter. The monitoring 
system shall provide sufficient information to allow the regulatory 
authority to determine that--
    (1) The essential hydrologic functions of alluvial valley floors are 
being preserved outside the permit area or reestablished within the 
permit area throughout the mining and reclamation process in accordance 
with Sec. 822.11;
    (2) Farming on lands protected under Sec. 822.12 is not being 
interrupted, discontinued, or precluded; and
    (3) The operation is not causing material damage to the quantity or 
quality of water in the surface or underground systems that supply 
alluvial valley floors protected under Sec. 822.12.
    (b) Monitoring shall be conducted at adequate frequencies to 
indicate long-term trends that could affect compliance with Sec. Sec. 
822.11 and 822.12.
    (c) All monitoring data collected and analyses thereof shall 
routinely be made available to the regulatory authority.

[[Page 375]]



PART 823_SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS_OPERATIONS ON PRIME 

FARMLAND--Table of Contents



Sec.
823.1 Scope and purpose.
823.4 Responsibilities.
823.11 Applicability.
823.12 Soil removal and stockpiling.
823.14 Soil replacement.
823.15 Revegetation and restoration of soil productivity.

    Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq.; Pub. L. 100-34.

    Source: 48 FR 21463, May 12, 1983, unless otherwise noted.



Sec. 823.1  Scope and purpose.

    This part sets forth special environmental protection performance, 
reclamation, and design standards for surface coal mining and 
reclamation operations on prime farmland.



Sec. 823.4  Responsibilities.

    (a) The U.S. Soil Conservation Service within each State shall 
establish specifications for prime farmland soil removal, storage, 
replacement, and reconstruction.
    (b) The regulatory authority within each State shall use the soil-
reconstruction specifications of paragraph (a) of this section to carry 
out its responsibilities under Sec. 785.17 and subchapter J of this 
chapter.



Sec. 823.11  Applicability.

    The requirements of this part shall not apply to--
    (a) Coal preparation plants, support facilities, and roads of 
surface and underground mines that are actively used over extended 
periods of time and where such uses affect a minimal amount of land. 
Such uses shall meet the requirements of part 816 of this chapter for 
surface mining activities and of part 817 of this chapter for 
underground mining activities;
    (b) Disposal areas containing coal mine waste resulting from 
underground mines that is not technologically and economically feasible 
to store in underground mines or on non-prime farmland. The operator 
shall minimize the area of prime farmland used for such purposes.
    (c) Prime farmland that has been excluded in accordance with Sec. 
785.17(a) of this chapter.

[48 FR 21463, May 12, 1983, as amended at 53 FR 40839, Oct. 18, 1988]

    Effective Date Note: At 50 FR 7278, Feb. 21, 1985, Sec. 823.11, 
paragraph (a) was suspended ``insofar as it excludes from the 
requirements of part 823 those coal preparation plants, support 
facilities, and roads that are surface mining activities''.



Sec. 823.12  Soil removal and stockpiling.

    (a) Prime farmland soils shall be removed from the areas to be 
disturbed before drilling, blasting, or mining.
    (b) The minimum depth of soil and soil materials to be removed and 
stored for use in the reconstruction of prime farmland shall be 
sufficient to meet the requirements of Sec. 823.14(b).
    (c) Soil removal and stockpiling operations on prime farmland shall 
be conducted to--
    (1) Separately remove the topsoil, or remove other suitable soil 
materials where such other soil materials will create a final soil 
having a greater productive capacity than that which exist prior to 
mining. If not utilized immediately, this material shall be placed in 
stockpiles separate from the spoil and all other excavated materials; 
and
    (2) Separately remove the B or C soil horizon or other suitable soil 
material to provide the thickness of suitable soil required by Sec. 
823.14(b), except as approved by the regulatory authority where the B or 
C soil horizons would not otherwise be removed and where soil 
capabilities can be retained. If not utilized immediately, each horizon 
or other material shall be stockpiled separately from the spoil and all 
other excavated materials. Where combinations of such soil materials 
created by mixing have been shown to be equally or more favorable for 
plant growth than the B horizon, separate handling is not necessary.
    (d) Stockpiles shall be placed within the permit area where they 
will not be disturbed or be subject to excessive erosion. If left in 
place for more than 30 days, stockpiles shall meet the requirements of 
Sec. 816.22 or Sec. 817.22 of this chapter.

[48 FR 21463, May 12, 1983, as amended at 53 FR 40839, Oct. 18, 1988]

[[Page 376]]



Sec. 823.14  Soil replacement.

    (a) Soil reconstruction specifications established by the U.S. Soil 
Conservation Service shall be based upon the standards of the National 
Cooperative Soil Survey and shall include, as a minimum, physical and 
chemical characteristics of reconstructed soils and soil descriptions 
containing soil-horizon depths, soil densities, soil pH, and other 
specifications such that reconstructed soils will have the capability of 
achieving levels of yield equal to, or higher than, those of nomined 
prime farmland in the surrounding area.
    (b) The minimum depth of soil and substitute soil material to be 
reconstructed shall be 48 inches, or a lesser depth equal to the depth 
to a subsurface horizon in the natural soil that inhibits or prevents 
root penetration, or a greater depth if determined necessary to restore 
the original soil productive capacity. Soil horizons shall be considered 
as inhibiting or preventing root penetration if their physical or 
chemical properties or water-supplying capacities cause them to restrict 
or prevent penetration by roots of plants common to the vicinity of the 
permit area and if these properties or capacities have little or no 
beneficial effect on soil productive capacity.
    (c) The operator shall replace and regrade the soil horizons or 
other root-zone material with proper compaction and uniform depth.
    (d) The operator shall replace the B horizon, C horizon, or other 
suitable material specified in Sec. 823.12(c)(2) to the thickness 
needed to meet the requirements of paragraph (b) of this section. In 
those areas where the B or C horizons were not removed but may have been 
compacted or otherwise damaged during the mining operation, the operator 
shall engage in deep tilling or other appropriate means to restore pre-
mining capabilities.
    (e) The operator shall replace the topsoil or other suitable soil 
materials specified in Sec. 823.12(c)(1) as the final surface soil 
layer. This surface soil layer shall equal or exceed the thickness of 
the original surface soil layer, as determined by the soil survey.

[48 FR 21463, May 12, 1983, as amended at 53 FR 40839, Oct. 18, 1988]



Sec. 823.15  Revegetation and restoration of soil productivity.

    (a) Following prime farmland soil replacement, the soil surface 
shall be stabilized with a vegetative cover or other means that 
effectively controls soil loss by wind and water erosion.
    (b) Prime farmland soil productivity shall be restored in accordance 
with the following provisions:
    (1) Measurement of soil productivity shall be initiated within 10 
years after completion of soil replacement.
    (2) Soil productivity shall be measured on a representative sample 
or on all of the mined and reclaimed prime farmland area using the 
reference crop determined under paragraph (b)(6) of this section. A 
statistically valid sampling technique at a 90-percent or greater 
statistical confidence level shall be used as approved by the regulatory 
authority in consultation with the U.S. Soil Conservation Service.
    (3) The measurement period for determining average annual crop 
production (yield) shall be a minimum of 3 crop years prior to release 
of the operator's performance bond.
    (4) The level of management applied during the measurement period 
shall be the same as the level of management used on nonmined prime 
farmland in the surrounding area.
    (5) Restoration of soil productivity shall be considered achieved 
when the average yield during the measurement period equals or exceeds 
the average yield of the reference crop established for the same period 
for nonmined soils of the same or similar texture or slope phase of the 
soil series in the surrounding area under equivalent management 
practices.
    (6) The reference crop on which restoration of soil productivity is 
proven shall be selected from the crops most commonly produced on the 
surrounding prime farmland. Where row crops are the dominant crops grown 
on prime farmland in the area, the row crop requiring the greatest 
rooting depth shall be chosen as one of the reference crops.
    (7) Reference crop yields for a given crop season are to be 
determined from--

[[Page 377]]

    (i) The current yield records of representative local farms in the 
surrounding area, with concurrence by the U.S. Soil Conservation 
Service; or
    (ii) The average county yields recognized by the U.S. Department of 
Agriculture, which have been adjusted by the U.S. Soil Conservation 
Service for local yield variation within the county that is associated 
with differences between nonmined prime farmland soil and all other 
soils that produce the reference crop.
    (8) Under either procedure in paragraph (b)(7) of this section, the 
average reference crop yield may be adjusted, with the concurrence of 
the U.S. Soil Conservation Service, for--
    (i) Disease, pest, and weather-induced seasonal variations; or
    (ii) Differences in specific management practices where the overall 
management practices of the crops being compared are equivalent.



PART 824_SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS_MOUNTAINTOP REMOVAL--

Table of Contents



Sec.
824.1 Scope.
824.2 Objectives.
824.11 Mountaintop removal: Performance standards.

    Authority: Secs. 102, 201, 501, 503, 504, 506, 508, 510, 515, 517, 
701 Pub. L. 95-87, 91 Stat. 448, 449, 467, 470, 471, 474, 478, 480, 486, 
498, 516 (30 U.S.C. 1202, 1211, 1251, 1253, 1254, 1256, 1258, 1260, 
1265, 1267, 1291).



Sec. 824.1  Scope.

    This part sets forth special environmental protection performance, 
reclamation, and design standards for surface coal mining activities 
constituting mountaintop removal mining.

[44 FR 15452, Mar. 13, 1979]



Sec. 824.2  Objectives.

    The objectives of this part are to--
    (a) Enhance coal recovery;
    (b) Reclaim the land to equal or higher postmining use; and
    (c) Protect and enhance environmental and other values protected 
under the Act and this chapter.

[44 FR 15452, Mar. 13, 1979]



Sec. 824.11  Mountaintop removal: Performance standards.

    (a) Under an approved regulatory program, surface coal mining 
activities may be conducted under a variance from the requirement of 
this subchapter for restoring affected areas to their approximate 
original contour, if--
    (1) The regulatory authority grants the variance under a permit, in 
accordance with 30 CFR 785.14;
    (2) The activities involve the mining of an entire coal seam running 
through the upper fraction of a mountain, ridge, or hill, by removing 
all of the overburden and creating a level plateau or gently rolling 
contour with no highwalls remaining;
    (3) An industrial, commercial, agricultural, residential, or public 
facility (including recreational facilities) use is proposed and 
approved for the affected land;
    (4) The alternative land use requirements of Sec. 816.133(a) 
through (c) of this chapter are met;
    (5) All applicable requirements of this subchapter and the 
regulatory program, other than the requirement to restore affected areas 
to their approximate original contour, are met;
    (6) An outcrop barrier of sufficient width, consisting of the toe of 
the lowest coal seam, and its associated overburden, are retained to 
prevent slides and erosion, except that the regulatory authority may 
permit an exemption to the retention of the coal barrier requirement if 
the following conditions are satisfied:
    (i) The proposed mine site was mined prior to May 3, 1978, and the 
toe of the lowest seam has been removed; or
    (ii) A coal barrier adjacent to a head-of-hollow fill may be removed 
after the elevation of a head-of-hollow fill attains the elevation of 
the coal barrier if the head-of-hollow fill provides the stability 
otherwise ensured by the retention of a coal barrier;
    (7) The final graded slopes on the mined area are less than 1v:5h, 
so as to create a level plateau or gently rolling configuration, and the 
outslopes of the plateau do not exceed 1v:2h except where engineering 
data substantiates, and the regulatory authority finds, in writing, and 
includes in the permit

[[Page 378]]

under 30 CFR 785.14, that a minimum static safety factor of 1.5 will be 
attained;
    (8) The resulting level or gently rolling contour is graded to drain 
inward from the outslope, except at specified points where it drains 
over the outslope in stable and protected channels. The drainage shall 
not be through or over a valley or head-of-hollow fill.
    (9) Natural watercourses below the lowest coal seam mined are not 
damaged;
    (10) All waste and acid-forming or toxic-forming materials, 
including the strata immediately below the coal seam, are covered with 
non-toxic spoil to prevent pollution and achieve the approved postmining 
land use; and
    (11) Spoil is placed on the mountaintop bench as necessary to 
achieve the postmining land use approved under paragraphs (a)(3) and 
(a)(4) of this section. All excess spoil material not retained on the 
mountaintop shall be placed in accordance with 30 CFR 816.41 and 816.43 
and 816.71 through 816.74.

[44 FR 15452, Mar. 13, 1979; 44 FR 49687, Aug. 24, 1979, as amended at 
48 FR 39905, Sept. 1, 1983; 48 FR 44781, Sept. 30, 1983]



PART 825_SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS_SPECIAL BITUMINOUS 

COAL MINES IN WYOMING--Table of Contents



Sec.
825.1 Scope.
825.2 Special bituminous coal mines in Wyoming.

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

    Source: 47 FR 33432, Aug. 2, 1982, unless otherwise noted.



Sec. 825.1  Scope.

    This part establishes requirements for certain bituminous surface 
coal mining activities located west of the 100th meridian west longitude 
in Wyoming which existed on January 1, 1972, and for surface coal mining 
activities immediately adjacent thereto which began development after 
August 3, 1977, in accordance with section 527 of the Act.



Sec. 825.2  Special bituminous coal mines in Wyoming.

    Special bituminous coal mines in Wyoming, as specified in section 
527 of the Act, shall comply with the approved State program, including 
Wyoming statutes and regulations, and revisions thereto.



PART 827_PERMANENT PROGRAM PERFORMANCE STANDARDS_COAL PREPARATION PLANTS NOT 

LOCATED WITHIN THE PERMIT AREA OF A MINE--Table of Contents



Sec.
827.1 Scope.
827.11 General requirements.
827.12 Coal preparation plants: Performance standards.
827.13 Coal preparation plants: Interim performance standards.

    Authority: 30 U.S.C. 1201 et seq., and Pub. L. 100-34.

    Source: 48 FR 20401, May 5, 1983, unless otherwise noted.



Sec. 827.1  Scope.

    This part sets forth requirements for coal preparation plants 
operated in connection with a coal mine but outside the permit area for 
a specific mine.

[53 FR 47391, Nov. 22, 1988]



Sec. 827.11  General requirements.

    Each person who operates a coal preparation plant subject to this 
part shall obtain a permit in accordance with Sec. 785.21 of this 
chapter, obtain a bond in accordance with subchapter J of this chapter, 
and operate that plant in accordance with the requirements of this part.



Sec. 827.12  Coal preparation plants: Performance standards.

    Except as provided in Sec. 827.13 of this part, the construction, 
operation, maintenance, modification, reclamation, and removal 
activities at coal preparation plants shall comply with the following:
    (a) Signs and markers for the coal preparation plant, coal 
processing waste disposal area, and water-treatment facilities shall 
comply with Sec. 816.11 of this chapter.

[[Page 379]]

    (b) Any stream channel diversion shall comply with Sec. 816.43 of 
this chapter.
    (c) Drainage from any disturbed area related to the coal preparation 
plant shall comply with Sec. Sec. 816.45 through 816.47 of this 
chapter, and all discharges from these areas shall meet the requirements 
of Sec. Sec. 816.41 and 816.42 of this chapter and any other applicable 
State or Federal law.
    (d) Permanent impoundments associated with coal preparation plants 
shall meet the requirements of Sec. Sec. 816.49 and 816.56 of this 
chapter. Dams constructed of, or impounding, coal processing waste shall 
comply with Sec. 816.84 of this chapter.
    (e) Disposal of coal processing waste, noncoal mine waste, and 
excess spoil shall comply with Sec. Sec. 816.81, 816.83, 816.84, 
816.87, 816.89, and 816.71 through 816.74 of this chapter, respectively.
    (f) Fish, wildlife, and related environmental values shall be 
protection in accordance with Sec. 816.97 of this chapter.
    (g) Support facilities related to the coal preparation plant shall 
comply with Sec. 816.181 of this chapter.
    (h) Roads shall comply with Sec. Sec. 816.150 and 816.151 of this 
chapter.
    (i) Cessation of operations shall be in accordance with Sec. Sec. 
816.131 and 816.132 of this chapter.
    (j) Erosion and air pollution attendant to erosion shall be 
controlled in accordance with Sec. 816.95 of this chapter.
    (k) Adverse effects upon, or resulting from, nearby underground coal 
mining activities shall be minimized by appropriate measures including, 
but not limited to, compliance with Sec. 816.79 of this chapter.
    (l) Reclamation shall follow proper topsoil handling, backfilling 
and grading, revegetation, and postmining land use procedures in 
accordance with Sec. Sec. 816.22, 816.100. 816.102, 816.104, 816.106, 
816.111, 816.113, 816.114, 816.116, and 816.133 of this chapter, 
respectively.

[48 FR 20401, May 5, 1983, as amended at 52 FR 17730, May 11, 1987]



Sec. 827.13  Coal preparation plants: Interim performance standards.

    (a) Persons operating or who have operated coal preparation plants 
after July 6, 1984, which were not subject to this chapter before July 
6, 1984, shall comply with the applicable interim or permanent program 
performance standards of the State in which such plants are located, as 
follows:
    (1) If located in a State in which either interim or permanent 
program performance standards apply to such plants, the applicable 
program standards of the State program shall apply;
    (2) If located in a State with a State program which must be amended 
in order to regulate such plants, the interim program performance 
standards in subchapter B of this chapter shall apply; and
    (3) If located in a State with a Federal program, all such plants 
shall be subject to the interim program performance standards in 
subchapter B of this chapter.
    (b) After a person described in paragraph (a) of this section 
obtains a permit to operate a coal preparation plant, the performance 
standards specified in Sec. 827.12 shall be applicable to the operation 
of that plant instead of those specified in paragraph (a) of this 
section.

[52 FR 17730, May 11, 1987]



PART 828_SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS_IN SITU PROCESSING--Table of Contents



Sec.
828.1 Scope.
828.2 Objectives.
828.11 In situ processing: Performance standards.
828.12 In situ processing: Monitoring.

    Authority: Secs. 102, 201, 501, 503, 504, 510, 515, 516, 517, 701; 
Pub. L. 95-87, 91 Stat. 448, 449, 467, 470, 471, 480, 486, 498, 516 (30 
U.S.C. 1202, 1211, 1251, 1253, 1254, 1260, 1265, 1266, 1267, 1291).



Sec. 828.1  Scope.

    This part sets forth special environmental protection performance, 
reclamation and design standards for in situ processing activities.

[44 FR 15455, Mar. 13, 1979]



Sec. 828.2  Objectives.

    This part is intended to ensure that all in situ processing 
activities are conducted in a manner which preserves

[[Page 380]]

and enhances environmental values in accordance with the Act. This part 
provides additional performance, reclamation and design standards to 
reflect the nature of in situ processing.

[44 FR 15455, Mar. 13, 1979]



Sec. 828.11  In situ processing: Performance standards.

    (a) The person who conducts in situ processing activities shall 
comply with 30 CFR 817 and this section.
    (b) In situ processing activities shall be planned and conducted to 
minimize disturbance to the prevailing hydrologic balance by:
    (1) Avoiding discharge of fluids into holes or wells, other than as 
approved by the regulatory authority;
    (2) Injecting process recovery fluids only into geologic zones or 
intervals approved as production zones by the regulatory authority;
    (3) Avoiding annular injection between the wall of the drill hole 
and the casing; and
    (4) Preventing discharge of process fluid into surface waters.
    (c) Each person who conducts in situ processing activities shall 
submit for approval as part of the application for permit under 30 CFR 
785.22, and follow after approval, a plan that ensures that all acid-
forming, toxic-forming, or radioactive gases, solids, or liquids 
constituting a fire, health, safety, or environmental hazard and caused 
by the mining and recovery process are promptly treated, confined, or 
disposed of, in a manner that prevents contamination of ground and 
surface waters, damage to fish, wildlife and related environmental 
values, and threats to the public health and safety.
    (d) Each person who conducts in situ processing activities shall 
prevent flow of the process recovery fluid:
    (1) Horizontally beyond the affected area identified in the permit; 
and
    (2) Vertically into overlying or underlying aquifers.
    (e) Each person who conducts in situ processing activities shall 
restore the quality of affected ground water in the permit area and 
adjacent area, including ground water above and below the production 
zone, to the approximate premining levels or better, to ensure that the 
potential for use of the ground water is not diminished.

(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)

[44 FR 15455, Mar. 13, 1979, as amended at 48 FR 14822, Apr. 5, 1983]



Sec. 828.12  In situ processing: Monitoring.

    (a) Each person who conducts in situ processing activities shall 
monitor the quality and quantity of surface and ground water and the 
subsurface flow and storage characteristics, in a manner approved by the 
regulatory authority under 30 CFR 817.41, to measure changes in the 
quantity and quality of water in surface and ground water systems in the 
permit area and in adjacent areas.
    (b) Air and water quality monitoring shall be conducted in 
accordance with monitoring programs approved by the regulatory authority 
as necessary according to appropriate Federal and State air and water 
quality standards.

(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)

[44 FR 15455, Mar. 13, 1979, as amended at 48 FR 14822, Apr. 5, 1983; 48 
FR 44781, Sept. 30, 1983]

[[Page 381]]



  SUBCHAPTER L_PERMANENT PROGRAM INSPECTION AND ENFORCEMENT PROCEDURES



PART 840_STATE REGULATORY AUTHORITY: INSPECTION AND ENFORCEMENT--Table of 

Contents



Sec.
840.1 Scope.
840.10 Information collection.
840.11 Inspections by State regulatory authority.
840.12 Right of entry.
840.13 Enforcement authority.
840.14 Availability of records.
840.15 Public participation.
840.16 Compliance conference.

    Authority: 30 U.S.C. 1201 et seq., unless otherwise noted.

    Source: 47 FR 35633, Aug. 16, 1982, unless otherwise noted.



Sec. 840.1  Scope.

    This part sets forth the minimum requirements for the Secretary's 
approval of the provisions for inspection and enforcement by a State of 
surface coal mining and reclamation operations and of coal exploration 
operations which substantially disturb the natural land surface, where a 
State is the regulatory authority under an approved State program.



Sec. 840.10  Information collection.

    (a) The collections of information contained in part 840 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0051. The information is being 
collected by States for use in assessing penalties as evidence in 
enforcement cases and as an inspection management record. The obligation 
to respond is required to obtain a benefit in accordance with 30 U.S.C. 
1201 et seq.
    (b) Public reporting burden for this information is estimated to 
average 3.7 hours per response, including the time for the reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed and completing and reviewing the collection of 
information. Send comments regarding this burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing the burden, to the Information Collection Clearance Officer 
(MS-202), 1951 Constitution Ave, NW., Washington, DC 20240.

[59 FR 60883, Nov. 28, 1994, as amended at 75 FR 60276, Sept. 29, 2010]



Sec. 840.11  Inspections by State regulatory authority.

    (a) The State regulatory authority shall conduct an average of at 
least one partial inspection per month of each active surface coal 
mining and reclamation operation under its jurisdiction, and shall 
conduct such partial inspections of each inactive surface coal mining 
and reclamation operation under its jurisdiction as are necessary to 
ensure effective enforcement of the approved State program. A partial 
inspection is an on-site or aerial review of a person's compliance with 
some of the permit conditions and requirements imposed under an approved 
State program.
    (b) The State regulatory authority shall conduct an average of at 
least one complete inspection per calendar quarter of each active or 
inactive surface coal mining and reclamation operation under its 
jurisdiction. A complete inspection is an on-site review of a person's 
compliance with all permit conditions and requirements imposed under the 
State program, within the entire area disturbed or affected by the 
surface coal mining and reclamation operations.
    (c) The State regulatory authority shall conduct such inspections of 
coal explorations as are necessary to ensure compliance with the 
approved State program.
    (d)(1) Aerial inspections shall be conducted in a manner which 
reasonably ensures the identification and documentation of conditions at 
each surface coal mining and reclamation site inspected.
    (2) Any potential violation observed during an aerial inspection 
shall be investigated on site within three days:

[[Page 382]]

provided, that any indication of a condition, practice or violation 
constituting cause for the issuance of a cessation order under section 
521(a)(2) of the Act shall be investigated on site immediately, And 
provided further, That an on-site investigation of a potential violation 
observed during an aerial inspection shall not be considered to be an 
additional partial or complete inspection for the purposes of paragraphs 
(a) and (b) of this section.
    (e) The inspections required under paragraphs (a), (b), (c) and (d) 
of this section shall:
    (1) Be carried out on an irregular basis, so as to monitor 
compliance at all operations, including those which operate nights, 
weekends, or holidays;
    (2) Occur without prior notice to the permittee or any agent or 
employee of such permittee, except for necessary on-site meetings; and
    (3) Include the prompt filing of inspection reports adequate to 
enforce the requirements of the approved State program.
    (f) For the purposes of this section, an inactive surface coal 
mining and reclamation operation is one for which:
    (1) The State regulatory authority has secured from the permittee 
the written notice provided for under Sec. 816.131(b) or Sec. 
817.131(b) of this chapter; or
    (2) Reclamation Phase II as defined at Sec. 800.40 of this chapter 
has been completed and the liability of the permittee has been reduced 
by the State regulatory authority in accordance with the State program.
    (g) Abandoned site means a surface coal mining and reclamation 
operation for which the regulatory authority has found in writing that:
    (1) All surface and underground coal mining and reclamation 
activities at the site have ceased;
    (2) The regulatory authority or the Office has issued at least one 
notice of violation or the initial program equivalent, and either:
    (i) Is unable to serve the notice despite diligent efforts to do so; 
or
    (ii) The notice was served and has progressed to a failure-to-abate 
cessation order or the initial program equivalent;
    (3) The regulatory authority:
    (i) Is taking action to ensure that the permittee and operator, and 
owners and controllers of the permittee and operator, will be precluded 
from receiving future permits while violations continue at the site; and
    (ii) Is taking action pursuant to section 518(e), 518(f), 521(a)(4) 
or 521(c) of the Act or their regulatory program counterparts to ensure 
that abatement occurs or that there will not be a recurrence of the 
failure-to-abate, except where after evaluating the circumstances it 
concludes that further enforcement offers little or no likelihood of 
successfully compelling abatement or recovering any reclamation costs; 
and
    (4) Where the site is, or was, permitted and bonded:
    (i) The permit has either expired or been revoked; and
    (ii) The regulatory authority has initiated and is diligently 
pursuing forfeiture of, or has forfeited, any available performance 
bond.
    (h) In lieu of the inspection frequency established in paragraphs 
(a) and (b) of this section, the regulatory authority shall inspect each 
abandoned site on a set frequency commensurate with the public health 
and safety and environmental considerations present at each specific 
site, but in no case shall the inspection frequency be set at less than 
one complete inspection per calendar year.
    (1) In selecting an alternate inspection frequency authorized under 
the paragraph above, the regulatory authority shall first conduct a 
complete inspection of the abandoned site and provide public notice 
under paragraph (h)(2) of this section. Following the inspection and 
public notice, the regulatory authority shall prepare and maintain for 
public review a written finding justifying the alternative inspection 
frequency selected. This written finding shall justify the new 
inspection frequency by affirmatively addressing in detail all of the 
following criteria:
    (i) How the site meets each of the criteria under the definition of 
an abandoned site under paragraph (g) of this section and thereby 
qualifies for a reduction in inspection frequency;

[[Page 383]]

    (ii) Whether, and to what extent, there exist on the site 
impoundments, earthen structures or other conditions that pose, or may 
reasonably be expected to ripen into, imminent dangers to the health or 
safety of the public or significant environmental harms to land, air, or 
water resources;
    (iii) The extent to which existing impoundments or earthen 
structures were constructed and certified in accordance with prudent 
engineering designs approved in the permit;
    (iv) The degree to which erosion and sediment control is present and 
functioning;
    (v) The extent to which the site is located near or above urbanized 
areas, communities, occupied dwellings, schools and other public or 
commercial buildings and facilities;
    (vi) The extent of reclamation completed prior to abandonment and 
the degree of stability of unreclaimed areas, taking into consideration 
the physical characteristics of the land mined and the extent of 
settlement or revegetation that has occurred naturally with them; and
    (vii) Based on a review of the complete and partial inspection 
report record for the site during at least the last two consecutive 
years, the rate at which adverse environmental or public health and 
safety conditions have and can be expected to progressively deteriorate.
    (2) The public notice and opportunity to comment required under 
paragraph (h)(1) of this section shall be provided as follows:
    (i) The regulatory authority shall place a notice in the newspaper 
with the broadest circulation in the locality of the abandoned site 
providing the public with a 30-day period in which to submit written 
comments.
    (ii) The public notice shall contain the permittee's name, the 
permit number, the precise location of the land affected, the inspection 
frequency proposed, the general reasons for reducing the inspection 
frequency, the bond status of the permit, the telephone number and 
address of the regulatory authority where written comments on the 
reduced inspection frequency may be submitted, and the closing date of 
the comment period.

(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)

[47 FR 35633, Aug. 16, 1983, as amended at 48 FR 44781, Sept. 30, 1983; 
53 FR 24882, June 30, 1988; 59 FR 60883, Nov. 28, 1994]



Sec. 840.12  Right of entry.

    (a) Within its jurisdiction, the State regulatory authority shall 
have authority that grants its representatives a right of entry to, 
upon, and through any coal exploration or surface coal mining and 
reclamation operation without advance notice upon presentation of 
appropriate credentials. No search warrant shall be required, except 
that a State may provide for its use with respect to entry into a 
building.
    (b) The State regulatory authority shall have authority that 
authorizes its representatives to inspect any monitoring equipment or 
method of exploration or operation and to have access to and copy any 
records required under the approved State program. This authority shall 
provide that the representatives may exercise such rights at reasonable 
times, without advance notice, upon presentation of appropriate 
credentials. No search warrant shall be required, except that a State 
may provide for its use with respect to entry into a building.



Sec. 840.13  Enforcement authority.

    (a) The civil and criminal penalty provisions of each State program 
shall contain penalties which are no less stringent than those set forth 
in section 518 of the Act and shall be consistent with 30 CFR part 845.
    (b) The enforcement provisions of each State program shall contain 
sanctions which are no less stringent than those set forth in section 
521 of the Act and shall be consistent with Sec. Sec. 843.11, 843.12, 
843.13, and subchapters G and J of this chapter.
    (c) The procedural requirements of each State program relating to 
the penalties and sanctions mentioned in paragraphs (a) and (b) of this 
section shall be the same as or similar to those provided in sections 
518 and 521 of the Act, respectively, and consistent with

[[Page 384]]

parts 843 and 845 and subchapters G and J of this chapter.
    (d) Nothing in the Act or this part shall be construed as 
eliminating any additional enforcement rights or procedures which are 
available under State law to a State regulatory authority, but which are 
not specifically enumerated in sections 518 and 521 of the Act.

[47 FR 35633, Aug. 16, 1982, as amended at 59 FR 54356, Oct. 28, 1994; 
75 FR 60276, Sept. 29, 2010]

    Editorial Note: For a document suspending Sec. 840.13(a) in part, 
see 45 FR 51548, Aug. 4, 1980.



Sec. 840.14  Availability of records.

    (a) Each State regulatory authority shall make available to the 
Director, upon request, copies of all documents relating to applications 
for and approvals of existing, new, or revised coal exploration 
approvals or surface coal mining and reclamation operations permits and 
all documents relating to inspection and enforcment actions.
    (b) Copies of all records, reports, inspection materials, or 
information obtained by the regulatory authority shall be made 
immediately available to the public in the area of mining until at least 
five years after expiration of the period during which the subject 
operation is active or is covered by any portion of a reclamation bond 
so that they are conveniently available to residents of that area, 
except--
    (1) As otherwise provided by Federal law; and
    (2) For information not required to be made available under 
Sec. Sec. 772.15 and 773.6(d) of this chapter or paragraph (d) of this 
section.
    (c) The State regulatory authority shall ensure compliance with 
paragraph (b) by either:
    (1) Making copies of all records, reports, inspection materials, and 
other subject information available for public inspection at a Federal, 
State or local government office in the county where the mining is 
occurring or proposed to occur; or,
    (2) At the regulatory authority's option and expense, providing 
copies of subject information promptly by mail at the request of any 
resident of the area where the mining is occuring or is proposed to 
occur, Provided, That the regulatory authority shall maintain for public 
inspection, at a Federal, State or local government office in the county 
where the mining is occurring or proposed to occur, a description of the 
information available for mailing and the procedure for obtaining such 
information.
    (d) In order to protect preparation for hearings and enforcement 
proceedings, the Director and the State regulatory authority may enter 
into agreements regarding procedures for the special handling of 
investigative and enforcement reports and other such materials.

(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)

[47 FR 35633, Aug. 16, 1982, as amended at 48 FR 44781, Sept. 30, 1983; 
65 FR 79670, Dec. 19, 2000]



Sec. 840.15  Public participation.

    Each State program shall provide for public participation in 
enforcement of the State program consistent with that provided by 30 CFR 
parts 842, 843 and 845 and 43 CFR part 4.



Sec. 840.16  Compliance conference.

    (a) The State program may provide for compliance conferences between 
a permittee and an authorized representative of the regulatory authority 
as described in paragraphs (b) through (e) of this section.
    (b) A permittee may request an on-site compliance conference with an 
authorized representative of the regulatory authority to review the 
compliance status of any condition or practice proposed at any coal 
exploration or surface coal mining and reclamation operation. Any such 
conference shall not constitute an inspection within the meaning of 
section 517 of the Act and Sec. 840.11.
    (c) The State regulatory authority may accept or refuse any request 
to conduct a compliance conference under paragraph (b).
    (d) The authorized representative at any compliance conference shall 
review such proposed conditions and practices in order to advise whether 
any such condition or practice may become a violation of any requirement 
of the Act, the approved State program, or any applicable permit or 
exploration approval.

[[Page 385]]

    (e) Neither the holding of a compliance conference under this 
section nor any opinion given by the authorized representative at such a 
conference shall affect:
    (1) Any rights or obligations of the regulatory authority or of the 
permittee with respect to any inspection, notice of violation or 
cessation order, whether prior or subsequent to such compliance 
conference; or
    (2) The validity of any notice of violation or cessation order 
issued with respect to any condition or practice reviewed at the 
compliance conference.



PART 842_FEDERAL INSPECTIONS AND MONITORING--Table of Contents



Sec.
842.1 Scope.
842.11 Federal inspections and monitoring.
842.12 Requests for Federal inspections.
842.13 Right of entry.
842.14 Review of adequacy and completeness of inspections.
842.15 Review of decision not to inspect or enforce.
842.16 Availability of records.

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

    Source: 47 FR 35635, Aug. 16, 1982, unless otherwise noted.



Sec. 842.1  Scope.

    This part sets forth general procedures governing Federal 
inspections under the permanent regulatory program.



Sec. 842.11  Federal inspections and monitoring.

    (a) Authorized representatives of the Secretary shall conduct 
inspections of surface coal mining and reclamation operations as 
necessary--
    (1) To monitor and evaluate the administration of approved State 
programs. Such monitoring and evaluation inspections shall be conducted 
jointly with the State regulatory authority where practical and where 
the State so requests;
    (2) To develop or enforce Federal programs and Federal lands 
programs;
    (3) To enforce those requirements and permit conditions imposed 
under a State program not being enforced by a State, under section 
504(b) or section 521(b) of the Act, part 733 of this chapter, or as 
provided in this section; and
    (4) To determine whether any notice of violation or cessation order 
issued during an inspection authorized under this section has been 
complied with.
    (b)(1) An authorized representative of the Secretary shall 
immediately conduct a Federal inspection:
    (i) When the authorized representative has reason to believe on the 
basis of information available to him or her (other than information 
resulting from a previous Federal inspection) that there exists a 
violation of the Act, this chapter, the applicable program, or any 
condition of a permit or an exploration approval, or that there exists 
any condition, practice, or violation which 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 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 
failed to take appropriate action to cause the violation to be corrected 
or to show good cause for such failure and to inform the authorized 
representative of its response. After receiving a response from the 
State regulatory authority, before inspection, the authorized 
representative shall determine in writing whether the standards for 
appropriate action or good cause for such failure have been met. Failure 
by the State regulatory authority to respond within the ten days shall 
not prevent the authorized representative from making the determination, 
and will constitute a waiver of the state regulatory authority's right 
to request review under paragraph (b)(1)(iii) of this section.
    (2) For purposes of this subchapter, an action or response by a 
State regulatory authority that is not arbitrary, capricious, or an 
abuse of discretion

[[Page 386]]

under the state program shall be considered ``appropriate action'' to 
cause a violation to be corrected or ``good cause'' for failure to do 
so.
    (3) Appropriate action includes enforcement or other action 
authorized under the State program to cause the violation to be 
corrected.
    (4) Good cause includes:
    (i) Under the State program, the possible violation does not exist;
    (ii) The State regulatory authority requires a reasonable and 
specified additional time to determine whether a violation of the State 
program does exist;
    (iii) The State regulatory authority lacks jurisdiction under the 
State program over the possible violation or operation;
    (iv) The State regulatory authority is precluded by an 
administrative or judicial order from an administrative body or court of 
competent jurisdiction from acting on the possible violation, where that 
order is based on the violation not existing or where the temporary 
relief standards of section 525(c) or 526(c) of the Act have been met; 
or
    (v) With regard to abandoned sites as defined in Sec. 840.11(g) of 
this chapter, the State regulatory authority is diligently pursuing or 
has exhausted all appropriate enforcement provisions of the State 
program.
    (C) The person supplying the information supplies adequate proof 
that an imminent danger to the public health and safety or a 
significant, imminent environmental harm to land, air or water resources 
exists and that the State regulatory authority has failed to take 
appropriate action.
    (iii)(A) The authorized representative shall immediately notify the 
state regulatory authority in writing when in response to a ten-day 
notice the state regulatory authority fails to take appropriate action 
to cause a violation to be corrected or to show good cause for such 
failure. If the State regulatory authority disagrees with the authorized 
representative's written determination, it may file a request, in 
writing, for informal review of that written determination by the Deputy 
Director. Such a request for informal review may be submitted to the 
appropriate OSMRE field office or to the office of the Deputy Director 
in Washington, DC. The request must be received by OSMRE within 5 days 
from receipt of OSMRE's written determination.
    (B) Unless a cessation order is required under Sec. 843.11, or 
unless the state regulatory authority has failed to respond to the ten-
day notice, no Federal inspection action shall be taken or notice of 
violation issued regarding the ten-day notice until the time to request 
informal review as provided in Sec. 842.11(b)(1)(iii)(A) has expired 
or, if informal review has been requested, until the Deputy Director has 
completed such review.
    (C) After reviewing the written determination of the authorized 
representative and the request for informal review submitted by the 
State regulatory authority, the Deputy Director shall, within 15 days, 
render a decision on the request for informal review. He shall affirm, 
reverse, or modify the written determination of the authorized 
representative. Should the Deputy Director decide that the State 
regulatory authority did not take appropriate action or show good cause, 
he shall immediately order a Federal inspection or reinspection. The 
Deputy Director shall provide to the State regulatory authority and to 
the permittee a written explanation of his decision, and if the ten-day 
notice resulted from a request for a Federal inspection under Sec. 
842.12 of this part, he shall send written notification of his decision 
to the person who made the request.
    (2) An authorized representative shall have reason to believe that a 
violation, condition or practice exists if the facts alleged by the 
informant would, if true, constitute a condition, practice or violation 
referred to in paragraph (b)(1)(i) of this section.
    (c) The Office, when acting as the regulatory authority under a 
Federal program or a Federal lands program and when enforcing a State 
program, in whole or in part, pursuant to section 504(b) of section 
521(b) of the Act and part 733 of this chapter, shall conduct 
inspections of all coal exploration and surface coal mining and 
reclamation operations under its jurisdiction. The Office shall--
    (1) With respect to active surface coal mining and reclamation 
operations:

[[Page 387]]

    (i) Conduct an average of at least one partial inspection per month 
of each active surface coal mining and reclamation operation. A partial 
inspection is an on-site or aerial review of a person's compliance with 
some of the permit requirements and conditions imposed under an 
applicable program.
    (A) Aerial inspections shall be conducted in a manner which 
reasonably ensures the identification and documentation of conditions at 
each surface coal mining and reclamation site inspected.
    (B) Any potential violation observed during an aerial inspection 
shall be investigated on site within three calendar days: Provided, That 
any indication of a condition, practice or violation constituting cause 
for issuance of a cessation order under section 521(a)(2) shall be 
investigated on site immediately, And provided further, That an on-site 
investigation of a potential violation observed during an aerial 
inspection shall not be considered to be an additional partial or 
complete inspection for the purposes of paragraphs (a) and (b) of this 
section.
    (ii) Conduct an average of at least one complete inspection per 
calendar quarter of each active surface coal mining and reclamation 
operation. A complete inspection is an on-site review of a person's 
compliance with all permit conditions and requirements imposed under the 
applicable program within the entire area disturbed or affected by 
surface coal mining and reclamation operations.
    (2) With respect to inactive surface coal mining and reclamation 
operations:
    (i) Conduct an average of at least one complete inspection per 
calendar quarter of each inactive surface coal mining and reclamation 
operation; and
    (ii) Conduct such partial inspections of each inactive surface coal 
mining and reclamation operation as are necessary to ensure effective 
enforcement of the regulatory program and the Act.
    (iii) For purposes of this section, an inactive surface coal mining 
and reclamation operation is one for which--
    (A) The Office has secured from the permittee the written notice 
provided for under Sec. Sec. 816.131(b) or 817.131(b) of this chapter; 
or,
    (B) Reclamation Phase II as defined at Sec. 800.40 of this chapter 
has been completed.
    (3) With respect to coal exploration operations, conduct such 
inspections as are necessary to ensure compliance with the Act by those 
coal explorations which substantially disturb the natural land surface.
    (d) The inspections required under paragraphs (a), (b), and (c) of 
this section shall:
    (1) Be carried out on an irregular basis, so as to monitor 
compliance at all operations, including those which operate nights, 
weekends, or holidays;
    (2) Occur without prior notice to the permittee or any agent or 
employee of such permittee, except for necessary on-site meetings; and
    (3) Include the prompt filing of inspection reports adequate to 
enforce the requirements of the applicable program.
    (e) Abandoned site means a surface coal mining and reclamation 
operation for which the Office has found in writing that:
    (1) All surface and underground coal mining and reclamation 
activities at the site have ceased;
    (2) The Office has issued at least one notice of violation or the 
initial program equivalent, and either:
    (i) Is unable to serve the notice despite diligent efforts to do so; 
or
    (ii) The notice was served and has progressed to a failure-to-abate 
cessation order or the initial program equivalent;
    (3) The Office:
    (i) Is taking action to ensure that the permittee and operator, and 
owners and controllers of the permittee and operator, will be precluded 
from receiving future permits while violations continue at the site; and
    (ii) Is taking action pursuant to sections 518(e), 518(f), 521(a)(4) 
or 521(c) of the Act or their regulatory program counterparts to ensure 
that abatement occurs or that there will not be a recurrence of the 
failure-to-abate, except where after evaluating the circumstances it 
concludes that further enforcement offers little or no likelihood of 
successfully compelling abatement or recovering any reclamation costs; 
and

[[Page 388]]

    (4) Where the site is, or was, permitted or bonded:
    (i) The permit has either expired or been revoked; and
    (ii) The Office has initiated and is diligently pursuing forfeiture 
of, or has forfeited, any available performance bond.
    (f) In lieu of the inspection frequency established in paragraph (c) 
of this section, the office shall inspect each abandoned site on a set 
frequency commensurate with the public health and safety and 
environmental considerations present at each specific site, but in no 
case shall the inspection frequency be set at less than one complete 
inspection per calendar-year.
    (1) In selecting an alternate inspection frequency authorized under 
the paragraph above, the office shall first conduct a complete 
inspection of the abandoned site and provide public notice under 
paragraph (f)(2) of this section. Following the inspection and public 
notice, the office shall prepare and maintain for public review a 
written finding justifying the alternative inspection frequency 
selected. This written finding shall justify the new inspection 
frequency by affirmatively addressing in detail all of the following 
criteria:
    (i) How the site meets each of the criteria under the definition of 
an abandoned site under paragraph (e) of this section and thereby 
qualifies for a reduction inspection frequency;
    (ii) Whether, and to what extent, there exist on the site 
impoundments, earthen structures or other conditions that pose, or may 
reasonably be expected to ripen into, imminent dangers to the health or 
safety of the public or significant environmental harms to land, air or 
water resources;
    (iii) The extent to which existing impoundments or earthen 
structures were constructed and certified in accordance with prudent 
engineering designs approved in the permit;
    (iv) The degree to which erosion and sediment control is present and 
functioning;
    (v) The extent to which the site is located near or above urbanized 
areas, communities, occupied dwellings, schools and other public or 
commercial buildings and facilities;
    (vi) The extent of reclamation completed prior to abandonment and 
the degree of stability of unreclaimed areas, taking into consideration 
the physical characteristics of the land mined and the extent of 
settlement or revegetation that has occurred naturally with time; and
    (vii) Based on a review of the complete and partial inspection 
report record for the site during at least the last two consecutive 
years, the rate at which adverse environmental or public health and 
safety conditions have and can be expected to progressively deteriorate.
    (2) The public notice and opportunity to comment required under 
paragraph (f)(1) of this section shall be provided as follows:
    (i) The office shall place a notice in the newspaper with the 
broadest circulation in the locality of the abandoned site providing the 
public with a 30-day period in which to submit written comments.
    (ii) The public notice shall contain the permittee's name, the 
permit number, the precise location of the land affected, the inspection 
frequency proposed, the general reasons for reducing the inspection 
frequency, the bond status of the permit, the telephone number and 
address of the office where written comments on the reduced inspection 
frequency may be submitted, and the closing date of the comment period.

(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)

[47 FR 35635, Aug. 16, 1982, as amended at 48 FR 44781, Sept. 30, 1983; 
53 FR 24882, June 30, 1988; 53 FR 26744, July 14, 1988; 59 FR 60884, 
Nov. 28, 1994; 75 FR 60276, Sept. 29, 2010]



Sec. 842.12  Requests for Federal inspections.

    (a) A person may request a Federal inspection under Sec. 842.11(b) 
by furnishing to an authorized representative of the Secretary 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 Sec. 842.11(b)(1)(i) 
exists and that the State regulatory authority, if any, has been 
notified, in

[[Page 389]]

writing, of the existence of the violation, condition or practice. The 
statement shall set forth a phone number and address where the person 
can be contacted.
    (b) The identity of any person supplying information to the Office 
relating to a possible violation or imminent danger or harm shall remain 
confidential with the Office, if requested by that person, unless that 
person elects to accompany the inspector on the inspection, or unless 
disclosure is required under the Freedom of Information Act (5 U.S.C. 
552) or other Federal law.
    (c) If a Federal inspection is conducted as a result of information 
provided to the Office by a person as described in paragraph (a) of this 
section, the person shall be notified as far in advance as practicable 
when the inspection is to occur and shall be allowed to accompany the 
authorized representative of the Secretary during the inspection. Such 
person has a right of entry to, upon and through the coal exploration or 
surface coal mining and reclamation operation about which he or she 
supplied information, but only if he or she is in the presence of and is 
under the control, direction and supervision of the authorized 
representative while on the mine property. Such right of entry does not 
include a right to enter buildings without consent of the person in 
control of the building or without a search warrant.
    (d) Within ten days of the Federal inspection or, if there is no 
Federal inspection, within 15 days of receipt of the person's written 
statement, the Office shall send the person the following.
    (1) If a Federal inspection was made, a description of the 
enforcement action taken, which may consist of copies of the Federal 
inspection report and all notices of violation and cessation orders 
issued as a result of the inspection, or an explanation of why no 
enforcement action was taken;
    (2) If no Federal inspection was conducted, an explanation of the 
reason why; and
    (3) An explanation of the person's right, if any, to informal review 
of the action or inaction of the Office under Sec. 842.15.
    (e) The Office shall give copies of all materials in paragraphs 
(d)(1) and (d)(2) of this section within the time limits specified in 
those paragraphs to the person alleged to be in violation, except that 
the name of the person supplying information shall be removed unless 
disclosure of his or her identity is permitted under paragraph (b) of 
this section.



Sec. 842.13  Right of entry.

    (a) Each authorized representative of the Secretary conducting a 
Federal inspection under Sec. 842.11:
    (1) Shall have a right of entry to, upon, and through any coal 
exploration or surface coal mining and reclamation operation without 
advance notice or a search warrant, upon presentation of appropriate 
credentials;
    (2) May, at reasonable times and without delay, have access to and 
copy any records, and inspect any monitoring equipment or method of 
exploration or operation required under the applicable program; and,
    (3) Shall have a right to gather physical and photographic evidence 
to document conditions, practices or violations at the site.
    (b) No search warrant shall be required with respect to any activity 
under paragraph (a) of this section, except that a search warrant may be 
required for entry into a building.



Sec. 842.14  Review of adequacy and completeness of inspections.

    Any person who is or may be adversely affected by a surface coal 
mining and reclamation operation or a coal exploration operation may 
notify the Director or his or her designee in writing of any alleged 
failure on the part of the Office to make adequate and complete or 
periodic Federal inspections. The notification shall include sufficient 
information to create a reasonable belief that the regulations of this 
part are not being complied with and to demonstrate that the person is 
or may be adversely affected. The Director or his or her designee shall 
within 15 days of receipt of the notification determine whether adequate 
and complete or periodic inspections have been made. The Director or his 
or her designee shall furnish the complainant

[[Page 390]]

with a written statement of the reasons for such determination and the 
actions, if any, taken to remedy the noncompliance.



Sec. 842.15  Review of decision not to inspect or enforce.

    (a) Any person who is or may be adversely affected by a coal 
exploration or surface coal mining and reclamation operation may ask the 
Director or his or her designee to review informally an authorized 
representative's decision not to inspect or take appropriate enforcement 
action with respect to any violation alleged by that person in a request 
for Federal inspection under Sec. 842.12. The request for review shall 
be in writing and include a statement of how the person is or may be 
adversely affected and why the decision merits review.
    (b) The Director or his or her designee shall conduct the review and 
inform the person, in writing, of the results of the review within 30 
days of his or her receipt of the request. The person alleged to be in 
violation shall also be given a copy of the results of the review, 
except that the name of the person who is or may be adversely affected 
shall not be disclosed unless confidentiality has been waived or 
disclosure is required under the Freedom of Information Act or other 
Federal law.
    (c) Informal review under this section shall not affect any right to 
formal review under section 525 of the Act or to a citizen's suit under 
section 520 of the Act.
    (d) Any determination made under paragraph (b) of this section shall 
constitute a decision of OSM within the meaning of 43 CFR 4.1281 and 
shall contain a right of appeal to the Office of Hearings and Appeals in 
accordance with 43 CFR part 4.



Sec. 842.16  Availability of records.

    (a) Copies of all records, reports, inspection materials, or 
information obtained by the Office under Title V of the Act, this 
chapter, a Federal program or Federal lands program, and a State program 
being enforced by the Office under section 504(b) or 521(b) of the Act 
and part 733 of this chapter or Sec. Sec. 842.11 or 842.12 shall be 
made immediately available to the public in the area of mining until at 
least five years after expiration of the period during which the subject 
operation is active or is covered by any portion of a reclamation bond 
so that they are conveniently available to residents of that area, 
except--
    (1) As otherwise provided by Federal law; and
    (2) For information not required to be made available under Sec. 
772.15, Sec. 773.6(d), or Sec. 840.14(d) of this chapter.
    (b) The Office shall ensure compliance with paragraph (a) of this 
section by either:
    (1) Making copies of all such records, reports, inspection 
materials, and other information available for public inspection at a 
Federal, State or local government office in the county where the mining 
is occurring or is proposed to occur; or
    (2) At the Office's option and expense, providing copies of such 
information promptly by mail at the request of any resident of the area 
where the mining is occurring or is proposed to occur, provided that the 
Office shall maintain for public inspection at a Federal, State, or 
local government office in the county where the mining is occurring or 
is proposed to occur a description of the information available for 
mailing and the procedure for obtaining such information.
    (c) Copies of documents and information required to be made 
available under paragraph (a) of this section shall be provided to the 
State regulatory authority, if any.

(Pub. L. 95-87, 30 U.S.C. 1201 et seq.)

[47 FR 35635, Aug. 16, 1982, as amended at 48 FR 44781, Sept. 30, 1983; 
65 FR 79670, Dec. 19, 2000]



PART 843_FEDERAL ENFORCEMENT--Table of Contents



Sec.
843.1 Scope.
843.5 Definitions.
843.11 Cessation orders.
843.12 Notices of violation.
843.13 Suspension or revocation of permits: Pattern of violations.
843.14 Service of notices of violation, cessation orders, and show cause 
          orders.
843.15 Informal public hearing.
843.16 Formal review of citations.
843.17 Failure to give notice and lack of information.

[[Page 391]]

843.18 Inability to comply.
843.20 Compliance conference.
843.22 Enforcement actions at abandoned sites.
843.25 Energy Policy Act enforcement in States with approved State 
          programs.

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

    Source: 47 FR 35637, Aug. 16, 1982, unless otherwise noted.



Sec. 843.1  Scope.

    This part sets forth general rules regarding enforcement by the 
Office of the Act, this chapter, any Federal program, the Federal lands 
program, State programs being enforced by the Office in whole or in part 
under section 504(b) or 521(b) of the Act and part 733 of this chapter 
and (in limited circumstances) under Sec. 842.11 or Sec. 842.12 of 
this chapter, and all conditions of permits and coal exploration 
approvals or permits imposed under any of these programs, the Act, or 
this chapter.



Sec. 843.5  Definitions.

    As used in this part, the following terms have the specified 
meanings:
    Unwarranted failure to comply means the failure of a permittee to 
prevent the occurrence of any violation of his or her permit or any 
requirement of the Act due to indifference, lack of diligence, or lack 
of reasonable care, or the failure to abate any violation of such permit 
of the Act due to indifference, lack of diligence, or lack of reasonable 
care.

[47 FR 35637, Aug. 16, 1982, as amended at 65 FR 79670, Dec. 19, 2000]



Sec. 843.11  Cessation orders.

    (a)(1) An authorized representative of the Secretary shall 
immediately order a cessation of surface coal mining and reclamation 
operations or of the relevant portion thereof, if he or she finds, on 
the basis of any Federal inspection, any condition or practice, or any 
violation of the Act, this chapter, any applicable program, or any 
condition of an exploration approval or permit imposed under any such 
program, the Act, or this chapter which:
    (i) Creates an imminent danger to the health or safety of the 
public; or
    (ii) Is causing or can reasonably be expected to cause significant, 
imminent environmental harm to land, air, or water resources.
    (2) Surface coal mining operations conducted by any person without a 
valid surface coal mining permit constitute a condition or practice 
which causes or can reasonably be expected to cause significant imminent 
environmental harm to land, air, or water resources unless such 
operations:
    (i) Are an integral, uninterrupted extension of previously permitted 
operations, and the person conducting such operations has filed a timely 
and complete application for a permit to conduct such operations; or
    (ii) Were conducted lawfully without a permit under the interim 
regulatory program because no permit has been required for such 
operations by the State in which the operations were conducted.
    (3) If the cessation ordered under paragraph (a)(1) of this section 
will not completely abate the imminent danger or harm in the most 
expeditious manner physically possible, the authorized representative of 
the Secretary shall impose affirmative obligations on the permittee to 
abate the imminent danger or significant environmental harm. The order 
shall specify the time by which abatement shall be accomplished.
    (b)(1) When a notice of violation has been issued under Sec. 
843.12(a) and the permittee fails to abate the violation within the 
abatement period fixed or subsequently extended by the authorized 
representative, the authorized representative of the Secretary shall 
immediately order a cessation of coal exploration or surface coal mining 
and reclamation operations, or of the portion relevant to the violation.
    (2) A cessation order issued under this paragraph (b) shall require 
the permittee to take all steps the authorized representative of the 
Secretary deems necessary to abate the violations covered by the order 
in the most expeditious manner physically possible.
    (c) A cessation order issued under paragraphs (a) or (b) of this 
section shall be in writing, signed by the authorized representative who 
issues it, and shall set forth with reasonable

[[Page 392]]

specificity: (1) The nature of the condition, practice or violation; (2) 
the remedial action or affirmative obligation required, if any, 
including interim steps, if appropriate; (3) the time established for 
abatement, if appropriate; and (4) a reasonable description of the 
portion of the coal exploration or surface coal mining and reclamation 
operation to which it applies. The order shall remain in effect until 
the condition, practice or violation resulting in the issuance of the 
cessation order has been abated or until vacated, modified or terminated 
in writing by an authorized representative of the Secretary, or until 
the order expires pursuant to section 521(a)(5) of the Act and Sec. 
843.15.
    (d) Reclamation operations and other activities intended to protect 
public health and safety and the environment shall continue during the 
period of any order unless otherwise provided in the order.
    (e) An authorized representative of the Secretary may modify, 
terminate or vacate a cessation order for good cause, and may extend the 
time for abatement if the failure to abate within the time previously 
set was not caused by lack of diligence on the part of the permittee.
    (f) An authorized representative of the Secretary shall terminate a 
cessation order by written notice to the permittee when he or she 
determines that all conditions, practices or violations listed in the 
order have been abated. Termination shall not affect the right of the 
Office to assess civil penalties for those violations under part 845 of 
this chapter.
    (g) Within 60 days after issuing a cessation order, OSM will notify 
in writing the permittee, the operator, and any person who has been 
listed or identified by the applicant, permittee, or OSM as an owner or 
controller of the operation, as defined in Sec. 701.5 of this chapter.

[47 FR 35637, Aug. 16, 1982, as amended at 54 FR 8992, Mar. 2, 1989; 54 
FR 13823, Apr. 5, 1989; 62 FR 19461, Apr. 21, 1997; 65 FR 79670, Dec. 
19, 2000]



Sec. 843.12  Notices of violation.

    (a)(1) An authorized representative of the Secretary shall issue a 
notice of violation if, on the basis of a Federal inspection carried out 
during the enforcement of a Federal program or Federal lands program or 
during Federal enforcement of a State program under section 504(b) or 
521(b) of the Act and part 733 of this chapter, he finds a violation of 
the Act, this chapter, the applicable program or any condition of a 
permit or an exploration approval imposed under such program, the Act, 
or this Chapter, which does not create an imminent danger or harm for 
which a cessation order must be issued under Sec. 843.11.
    (2) When, on the basis of any Federal inspection other than one 
described in paragraph (a)(1) of this section, an authorized 
representative of the Secretary determines that there exists a violation 
of the Act, the State program, or any condition of a permit or 
exploration approval required by the Act which does not create an 
imminent danger or harm for which a cessation order must be issued under 
Sec. 843.11, the authorized representative shall give a written report 
of the violation to the State and to the permittee so that appropriate 
action can be taken by the State. Where the State fails within ten days 
after notification to take appropriate action to cause the violation to 
be corrected, or to show good cause for such failure, subject to the 
procedures of Sec. 842.11(b)(1)(iii) of this chapter, the authorized 
representative shall reinspect and, if the violation continues to exist, 
shall issue a notice of violation or cessation order, as appropriate. No 
additional notification to the State by the Office is required before 
the issuance of a notice of violation if previous notification was given 
under Sec. 842.11(b)(1)(ii)(B) of this chapter.
    (b) A notice of violation issued under this section shall be in 
writing signed by the authorized representative who issues it, and shall 
set forth with reasonable specificity:
    (1) The nature of the violation;
    (2) The remedial action required, which may include interim steps;
    (3) A reasonable time for abatement, which may include time for 
accomplishment of interim steps; and
    (4) A reasonable description of the portion of the coal exploration 
or surface coal mining and reclamation operation to which it applies.

[[Page 393]]

    (c) An authorized representative of the Secretary may extend the 
time set for abatement or for accomplishment of an interim step, if the 
failure to meet the time previously set was not caused by lack of 
diligence on the part of the permittee. The total time for abatement 
under a notice of violation, including all extensions, shall not exceed 
90 days from the date of issuance, except upon a showing by the 
permittee that it is not feasible to abate the violation within 90 
calendar days due to one or more of the circumstances in paragraph (f) 
of this section. An extended abatement date pursuant to this section 
shall not be granted when the permittee's failure to abate within 90 
days has been caused by a lack of diligence or intentional delay by the 
permittee in completing the remedial action required.
    (d)(1) If the permittee fails to meet the time set for abatement the 
authorized representative shall issue a cessation order under Sec. 
843.11(b).
    (2) If the permittee fails to meet the time set for accomplishment 
of any interim step the authorized representative may issue a cessation 
order under Sec. 843.11(b).
    (e) An authorized representative of the Secretary shall terminate a 
notice of violation by written notice to the permittee when he 
determines that all violations listed in the notice of violation have 
been abated. Termination shall not affect the right of the Office to 
assess civil penalties for those violations under 30 CFR part 845.
    (f) Circumstances which may qualify a surface coal mining operation 
for an abatement period of more than 90 days are:
    (1) Where the permittee of an ongoing permitted operation has timely 
applied for and diligently pursued a permit renewal or other necessary 
approval of designs or plans but such permit or approval has not been or 
will not be issued within 90 days after a valid permit expires or is 
required, for reasons not within the control of the permittee;
    (2) Where there is a valid judicial order precluding abatement 
within 90 days as to which the permittee has diligently pursued all 
rights of appeal and as to which he or she has no other effective legal 
remedy;
    (3) Where the permittee cannot abate within 90 days due to a labor 
strike;
    (4) Where climatic conditions preclude abatement within 90 days, or 
where, due to climatic conditions, abatement within 90 days clearly 
would cause more environmental harm than it would prevent; or
    (5) Where abatement within 90 days requires action that would 
violate safety standards established by statute or regulation under the 
Mine Safety and Health Act of 1977.
    (g) Whenever an abatement time in excess of 90 days is permitted, 
interim abatement measures shall be imposed to the extent necessary to 
minimize harm to the public or the environment.
    (h) If any of the conditions in paragraph (f) of this section 
exists, the permittee may request the authorized representative to grant 
an abatement period exceeding 90 days. The authorized representative 
shall not grant such an abatement period without the concurrence of the 
Director or his or her designee and the abatement period granted shall 
not exceed the shortest possible time necessary to abate the violation. 
The permittee shall have the burden of establishing by clear and 
convincing proof that he or she is entitled to an extension under the 
provisions of Sec. 843.12(c) and (f). In determining whether or not to 
grant an abatement period exceeding 90 days the authorized 
representative may consider any relevant written or oral information 
from the permittee or any other source. The authorized representative 
shall promptly and fully document in the file his or her reasons for 
granting or denying the request. The authorized representative's 
immediate supervisor shall review this document before concurring in or 
disapproving the extended abatement date and shall promptly and fully 
document the reasons for his or her concurrence or disapproval in the 
file.
    (i) Any determination made under paragraph (h) of this section shall 
contain a right of appeal to the Office of Hearings and Appeals in 
accordance with 43 CFR 4.1281 and the regulations at 43 CFR part 4.

[[Page 394]]

    (j) No extension granted under paragraph (h) of this section may 
exceed 90 days in length. Where the condition or circumstance which 
prevented abatement within 90 days exists at the expiration of any such 
extension, the permittee may request a further extension in accordance 
with the procedures of paragraph (h) of this section.

[47 FR 35637, Aug. 16, 1982, as amended at 53 FR 26744, July 14, 1988]



Sec. 843.13  Suspension or revocation of permits: Pattern of violations.

    (a)(1) The Director shall issue an order to a permittee requiring 
him or her to show cause why his or her permit and right to mine under 
the Act should not be suspended or revoked, if the Director determines 
that a pattern of violations of any requirements of the Act, this 
chapter, the applicable program, or any permit condition required by the 
Act exists or has existed, and that the violations were caused by the 
permittee willfully or through unwarranted failure to comply with those 
requirements or conditions. Violations by any person conducting surface 
coal mining operations on behalf of the permittee shall be attributed to 
the permittee, unless the permittee establishes that they were acts of 
deliberate sabotage. The Director shall promptly file a copy of any 
order to show cause with the Office of Hearings and Appeals and the 
State regulatory authority, if any.
    (2) The Director may determine that a pattern of violations exists 
or has existed, based upon two or more Federal inspections of the permit 
area within any 12-month period, after considering the circumstances, 
including:
    (i) The number of violations, cited on more than one occasion, of 
the same or related requirements of the Act, this chapter, the 
applicable program, or the permit;
    (ii) The number of violations, cited on more than one occasion, of 
different requirements of the Act, this chapter, the applicable program, 
or the permit; and
    (iii) The extent to which the violations were isolated departures 
from lawful conduct.
    (3) The Director shall promptly review the history of violations of 
any permittee who has been cited for violations of the same or related 
requirements of the Act, this chapter, the applicable program, or the 
permit during three or more Federal inspections of the permit area 
within any 12-month period. If, after such review, the Director 
determines that a pattern of violations exists or has existed, he or she 
shall issue an order to show cause as provided in paragraph (a)(1) of 
this section.
    (4)(i) In determining the number of violations within any 12-month 
period, the Director shall consider only violations issued as a result 
of a Federal inspection carried out--
    (A) During enforcement of a Federal program or a Federal lands 
program;
    (B) During the interim program and before the applicable State 
program was approved pursuant to section 502 or 504 of the Act; or
    (C) During Federal enforcement of a State program in accordance with 
section 504(b) or 521(b) of the Act.
    (ii) The Director may not consider violations issued as a result of 
inspections other than those mentioned in paragraph (a)(4)(i) of this 
section in determining whether to exercise his or her discretion under 
paragraph (a)(2) of this section, except as evidence of the willful or 
unwarranted nature of the permittee's failure to comply.
    (b) If the permittee files an answer to the show cause order and 
requests a hearing under 43 CFR part 4, a public hearing shall be 
provided as set forth in that part. The Office of Hearings and Appeals 
shall give thirty days written notice of the date, time and place of the 
hearing to the Director, the permittee, the State regulatory authority, 
if any, and any intervenor. Upon receipt of the notice, the Director 
shall publish it, if practicable, in a newspaper of general circulation 
in the area of the surface coal mining and reclamation operations, and 
shall post it at the State or field office closest to those operations.
    (c) Within sixty days after the hearing, and within the time limits 
set forth in 43 CFR part 4, the Office of Hearings and Appeals shall 
issue a written determination as to whether a pattern of violations 
exists and, if appropriate, an order. If the Office of

[[Page 395]]

Hearings and Appeals revokes or suspends the permit and the permittee's 
right to mine under the Act, the permittee shall immediately cease 
surface coal mining operations on the permit area and shall:
    (1) If the permit and the right to mine under the Act are revoked, 
complete reclamation within the time specified in the order; or
    (2) If the permit and the right to mine under the Act are suspended, 
complete all affirmative obligations to abate all conditions, practices, 
or violations as specified in the order.
    (d) Whenever a permittee fails to abate a violation contained in a 
notice of violation or cessation order within the abatement period set 
in the notice or order or as subsequently extended, the Director shall 
review the permittee's history of violations to determine whether a 
pattern of violations exists pursuant to this section, and shall issue 
an order to show cause as appropriate pursuant to Sec. 845.15(b)(2) of 
this chapter.



Sec. 843.14  Service of notices of violation, cessation orders, and show cause 

orders.

    (a) A notice of violation, cessation order, or show cause order 
shall be served on the person to whom it is directed or his or her 
designated agent promptly after issuance, as follows:
    (1) By tendering a copy at the coal exploration or surface coal 
mining and reclamation operation to the designated agent or to the 
individual who, based upon reasonable inquiry, appears to be in charge. 
If no such individual can be located at the site, a copy may be tendered 
to any individual at the site who appears to be an employee or agent of 
the person to whom the notice or order is issued. Service shall be 
complete upon tender of the notice or order and shall not be deemed 
incomplete because of refusal to accept.
    (2) As an alternative to paragraph (a)(1) of this section, service 
may be made by sending a copy of the notice or order by certified mail 
or by hand to the permittee or his or her designated agent, or by any 
means consistent with the rules governing service of a summons and 
complaint under rule 4 of the Federal Rules of Civil Procedure. Service 
shall be complete upon tender of the notice or order or of the certified 
mail and shall not be deemed incomplete because of refusal to accept.
    (b) Designation by any person of an agent for service of notices and 
orders shall be made in writing to the appropriate State or field office 
of the Office.
    (c) The Office shall furnish copies of notices and orders to the 
State regulatory authority, if any, promptly after their issuance. The 
Office may furnish copies to any person having an interest in the coal 
exploration, surface coal mining and reclamation operation, or the 
permit area.

[47 FR 35637, Aug. 16, 1982, as amended at 56 FR 28445, June 20, 1991]



Sec. 843.15  Informal public hearing.

    (a) Except as provided in paragraphs (b) and (c) of this section, a 
notice of violation or cessation order which requires cessation of 
mining, expressly or by necessary implication, shall expire within 30 
days after it is served unless an informal public hearing has been held 
within that time. The hearing shall be held at or reasonably close to 
the mine site so that it may be viewed during the hearing or at any 
other location acceptable to the Office and the person to whom the 
notice or order was issued. The Office of Surface Mining office nearest 
to the mine site shall be deemed to be reasonably close to the mine site 
unless a closer location is requested and agreed to by the Office. 
Expiration of a notice or order shall not affect the Office's right to 
assess civil penalties with respect to the period during which the 
notice or order was in effect. No hearing will be required where the 
condition, practice, or violation in question has been abated or the 
hearing has been waived. For purposes of this section only, ``mining'' 
includes (1) extracting coal from the earth or from coal waste piles and 
transporting it within or from the permit area, and (2) the processing, 
cleaning, concentrating, preparing or loading of coal where such 
operations occur at a place other than at a mine site.
    (b) A notice of violation or cessation order shall not expire as 
provided in paragraph (a) of this section if the informal public hearing 
has been waived, or if, with the consent of the person to

[[Page 396]]

whom the notice or order was issued, the informal public hearing is held 
later than 30 days after the notice or order was served. For purposes of 
this subsection:
    (1) The informal public hearing will be deemed waived if the person 
to whom the notice or order was issued:
    (i) Is informed, by written notice served in the manner provided in 
paragraph (b)(2) of this section, that he or she will be deemed to have 
waived an informal public hearing unless he or she requests one within 
30 days after service of the notice; and
    (ii) Fails to request an informal public hearing within that time.
    (2) The written notice referred to in paragraph (b)(1)(i) of this 
section shall be delivered to such person by an authorized 
representative or sent by certified mail to such person no later than 5 
days after the notice or order is served on such person.
    (3) The person to whom the notice or order is issued shall be deemed 
to have consented to an extension of the time for holding the informal 
public hearing if his or her request is received on or after the 21st 
day after service of the notice or order. The extension of time shall be 
equal to the number of days elapsed after the 21st day.
    (c) The Office shall give as much advance notice as is practicable 
of the time, place, and subject matter of the informal public hearing 
to:
    (1) The person to whom the notice or order was issued;
    (2) Any person who filed a report which led to that notice or order; 
and
    (3) The State regulatory authority, if any.
    (d) The Office shall also post notice of the hearing at the State or 
field office closest to the mine site and, where practicable, publish it 
in a newspaper of general circulation in the area of the mine.
    (e) Section 554 of Title 5 of the United States Code, regarding 
requirements for formal adjudicatory hearings, shall not govern informal 
public hearings. An informal public hearing shall be conducted by a 
representative of the Office, who may accept oral or written arguments 
and any other relevant information from any person attending.
    (f) Within five days after the close of the informal public hearing, 
the Office shall affirm, modify, or vacate the notice or order in 
writing. The decision shall be sent to--
    (1) The person to whom the notice or order was issued;
    (2) Any person who filed a report which led to the notice or order; 
and
    (3) The State regulatory authority, if any.
    (g) The granting or waiver of an informal public hearing shall not 
affect the right of any person to formal review under section 518(b), 
521(a)(4), or 525 of the Act.
    (h) The person conducting the hearing for the Office shall determine 
whether or not the mine site should be viewed during the hearing. In 
making this determination the only consideration shall be whether a view 
of the mine site will assist the person conducting the hearing in 
reviewing the appropriateness of the enforcement action or of the 
required remedial action.



Sec. 843.16  Formal review of citations.

    (a) A person issued a notice of violation or cessation order under 
Sec. 843.11 or Sec. 843.12, or a person having an interest which is or 
may be adversely affected by the issuance, modification, vacation or 
termination of a notice or order, may request review of that action by 
filing an application for review and request for hearing under 43 CFR 
part 4, within 30 days after receiving notice of the action.
    (b) The filing of an application for review and request for a 
hearing under this section shall not operate as a stay of any notice or 
order, or of any modification, termination or vacation of either.



Sec. 843.17  Failure to give notice and lack of information.

    No notice of violation, cessation order, show cause order, or order 
revoking or suspending a permit may be vacated for failure to give the 
notice to the State regulatory authority required under Sec. 
842.11(b)(1)(ii)(B) of this chapter or because it is subsequently 
determined that the Office did not have information sufficient, under 
Sec. Sec. 842.11(b)(1) and 842.11(b)(2) of this chapter, to justify an 
inspection.

[[Page 397]]



Sec. 843.18  Inability to comply.

    (a) No cessation order or notice of violation issued under this part 
may be vacated because of inability to comply.
    (b) Inability to comply may not be considered in determining whether 
a pattern of violations exists.
    (c) Unless caused by lack of diligence, inability to comply may be 
considered only in mitigation of the amount of civil penalty under part 
845 of this chapter and of the duration of the suspension of a permit 
under Sec. 843.13(c).



Sec. 843.20  Compliance conference.

    (a) A permittee may request an on-site compliance conference with an 
authorized representative to review the compliance status of any 
condition or practice proposed at any coal exploration or surface coal 
mining and reclamation operation. Any such conference shall not 
constitute an inspection within the meaning of section 517 of the Act 
and Sec. 842.11.
    (b) The Office may accept or refuse any request to conduct a 
compliance conference under paragraph (a). Where the Office accepts such 
a request, reasonable notice of the scheduled date and time of the 
compliance conference shall be given to the permittee.
    (c) The authorized representative at any compliance conference shall 
review such proposed conditions and practices as the permittee may 
request in order to determine whether any such condition or practice may 
become a violation of any requirement of the Act of any applicable 
permit or exploration approval.
    (d) Neither the holding of a compliance conference under this 
section nor any opinion given by the authorized representative at such a 
conference shall affect:
    (1) Any rights or obligations of the Office or of the permittee with 
respect to any inspection, notice of violation or cessation order, 
whether prior or subsequent to such conference; or
    (2) The validity of any notice of violation or cessation order 
issued with respect to any condition or practice reviewed at the 
compliance conference.



Sec. 843.22  Enforcement actions at abandoned sites.

    The Office may refrain from issuing a notice of violation or 
cessation order for a violation at an abandoned site, as defined in 
Sec. 842.11(e) of this chapter, if abatement of the violation is 
required under any previously issued notice or order.

[53 FR 24882, June 30, 1988]



Sec. 843.25  Energy Policy Act enforcement in States with approved State 

programs.

    (a) State-by-State determinations. By July 31, 1995, OSM will 
determine for each State with an approved State regulatory program 
whether:
    (1) Direct Federal enforcement of the Energy Policy Act and 
implementing Federal regulations will occur under paragraph (b) of this 
section with respect to some or all surface coal mining operations in 
each State, or
    (2) The procedures of Sec. Sec. 843.11 and 843.12(a)(2) will apply 
to State enforcement of the Energy Policy Act, or
    (3) A combination of direct Federal enforcement and State 
enforcement will occur.
    (4) Before making this determination, OSM will consult with each 
affected State and provide an opportunity for public comment. OSM will 
publish its determination in the Federal Register.
    (b) Interim Federal enforcement. (1) If OSM determines under 
paragraph (a) that direct Federal enforcement is necessary, Sec. Sec. 
817.41(j), 817.121(c)(2), and 817.121(c)(4) of this chapter will apply 
to each underground mining operation subject to that determination that 
is conducted in a State with an approved State regulatory program.
    (2) If OSM determines under paragraph (a) of this section that 
direct Federal enforcement is necessary, the provisions of Sec. 
843.12(a)(2) will not apply to direct Federal enforcement actions under 
this paragraph (b). When, on the basis of any Federal inspection under 
this paragraph, an authorized representative determines that a violation 
of Sec. 817.41(j) or Sec. 817.121(c)(2) exists, the authorized 
representative must issue a notice of violation or cessation order, as 
appropriate.

[[Page 398]]

    (3) This paragraph (b) will remain effective in a State with an 
approved State regulatory program until the State adopts, and OSM 
approves, under part 732 of this chapter, provisions consistent with 
Sec. Sec. 817.41(j) and 817.121(c)(2) of this chapter. After these 
provisions are approved, this paragraph will remain effective only for 
violations of Sec. Sec. 817.41(j) and 817.121(c)(2) that are not 
regulated by the State regulatory authority.

[60 FR 16750, Mar. 31, 1995]



PART 845_CIVIL PENALTIES--Table of Contents



Sec.
845.1 Scope.
845.2 Objective.
845.11 How assessements are made.
845.12 When penalty will be assessed.
845.13 Point system for penalties.
845.14 Determination of amount of penalty.
845.15 Assessment of separate violations for each day.
845.16 Waiver of use of formula to determine civil penalty.
845.17 Procedures for assessment of civil penalties.
845.18 Procedures for assessment conference.
845.19 Request for hearing.
845.20 Final assessment and payment of penalty.
845.21 Use of civil penalties for reclamation.

    Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., 31 U.S.C. 3701, 
Pub. L. 100-202, and Pub. L. 100-446.

    Source: 47 FR 35640, Aug. 16, 1982, unless otherwise noted.



Sec. 845.1  Scope.

    This part covers the assessment of civil penalties under section 518 
of the Act with respect to cessation orders and notices of violation 
issued under part 843 (Federal Enforcement), except for the assessment 
of individual civil penalties under section 518(f), which is covered in 
part 846.

[53 FR 3675, Feb. 8, 1988]



Sec. 845.2  Objective.

    Civil penalties are assessed under section 518 of the Act and this 
part to deter violations and to ensure maximum compliance with the terms 
and purposes of the Act on the part of the coal mining industry.



Sec. 845.11  How assessments are made.

    The Office shall review each notice of violation and cessation order 
in accordance with the assessment procedures described in 30 CFR 845.12, 
845.13, 845.14, 845.15, and 845.16 to determine whether a civil penalty 
will be assessed, the amount of the penalty, and whether each day of a 
continuing violation will be deemed a separate violation for purposes of 
the total penalty assessed.



Sec. 845.12  When penalty will be assessed.

    (a) The Office shall assess a penalty for each cessation order.
    (b) The Office shall assess a penalty for each notice of violation, 
if the violation is assigned 31 points or more under the point system 
described in 30 CFR 845.13.
    (c) The Office may assess a penalty for each notice of violation 
assigned 30 points or less under the point system described in 30 CFR 
845.13. In determining whether to assess a penalty, the Office shall 
consider the factors listed in 30 CFR 845.13(b).



Sec. 845.13  Point system for penalties.

    (a) The Office shall use the point system described in this section 
to determine the amount of the penalty and, in the case of notices of 
violation, whether a mandatory penalty should be assessed as provided in 
30 CFR 845.12(b).
    (b) Points shall be assigned as follows:
    (1) History of previous violations. The Office shall assign up to 30 
points based on the history of previous violations. One point shall be 
assigned for each past violation contained in a notice of violation. 
Five points shall be assigned for each violation (but not a condition or 
practice) contained in a cessation order. The history of previous 
violations, for the purpose of assigning points, shall be determined and 
the points assigned with respect to a particular coal exploration or 
surface coal mining operation. Points shall be assigned as follows:
    (i) A violation shall not be counted, if the notice or order is the 
subject of pending administrative or judicial review or if the time to 
request such review or to appeal any administrative or judicial decision 
has not expired, and

[[Page 399]]

thereafter it shall be counted for only one year.
    (ii) No violation for which the notice or order has been vacated 
shall be counted; and
    (iii) Each violation shall be counted without regard to whether it 
led to a civil penalty assessment.
    (2) Seriousness. The Office shall assign up to 30 points based on 
the seriousness of the violation, as follows:
    (i) Probability of occurrence. The Office shall assign up to 15 
points based on the probability of the occurrence of the event which a 
violated standard is designed to prevent. Points shall be assessed 
according to the following schedule:

------------------------------------------------------------------------
                    Probability of Occurrence                     Points
------------------------------------------------------------------------
None............................................................       0
Insignificant...................................................     1-4
Unlikely........................................................     5-9
Likely..........................................................   10-14
Occurred........................................................      15
------------------------------------------------------------------------

    (ii) Extent of potential or actual damage. The Office shall assign 
up to 15 points, based on the extent of the potential or actual damage, 
in terms of area and impact on the public or environment, as follows:
    (A) If the damage or impact which the violated standard is designed 
to prevent would remain within the coal exploration or permit area, the 
Office shall assign zero to seven points, depending on the duration and 
extent of the damage or impact.
    (B) If the damage or impact which the violated standard is designed 
to prevent would extend outside the coal exploration or permit area, the 
Office shall assign eight to fifteen points, depending on the duration 
and extent of the damage or impact
    (iii) Alternative. In the case of a violation of an administrative 
requirement, such as a requirement to keep records, the Office shall, in 
lieu of paragraphs (b)(2) (i) and (ii), assign up to 15 points for 
seriousness, based upon the extent to which enforcement is obstructed by 
the violation.
    (3) Negligence. (i) The Office shall assign up to 25 points based on 
the degree of fault of the person to whom the notice or order was issued 
in causing or failing to correct the violation, condition, or practice 
which led to the notice or order, either through act or omission. Points 
shall be assessed as follows:
    (A) A violation which occurs through no negligence shall be assigned 
no penalty points for negligence;
    (B) A violation which is caused by negligence shall be assigned 12 
points or less, depending on the degree of negligence;
    (C) A violation which occurs through a greater degree of fault than 
negligence shall be assigned 13 to 25 points, depending on the degree of 
fault.
    (ii) In determining the degree of negligence involved in a violation 
and the number of points to be assigned, the following definitions 
apply:
    (A) No negligence means an inadvertent violation which was 
unavoidable by the exercise of reasonable care.
    (B) Negligence means the failure of a permittee to prevent the 
occurrence of any violation of his or her permit or any requirement of 
the Act or this Chapter due to indifference, lack or diligence, or lack 
of reasonable care, or the failure to abate any violation of such permit 
or the Act due to indifference, lack of diligence, or lack of reasonable 
care.
    (C) A greater degree of fault than negligence means reckless, 
knowing, or intentional conduct.
    (iii) In calculating points to be assigned for negligence, the acts 
of all persons working on the coal exploration or surface coal mining 
and reclamation site shall be attributed to the person to whom the 
notice or order was issued, unless that person establishes that they 
were acts of deliberate sabotage.
    (4) Good faith in attempting to achieve compliance.
    (i) The Office shall add points based on the degree of good faith of 
the person to whom the notice or order was issued in attempting to 
achieve rapid compliance after notification of the violation. Points 
shall be assigned as follows:

------------------------------------------------------------------------
           Degree of good faith                        Points
------------------------------------------------------------------------
Rapid compliance.........................  -1 to -10.
Normal compliance........................  0.
------------------------------------------------------------------------


[[Page 400]]

    (ii) The following definitions shall apply under paragraph (b)(4)(i) 
of this section:
    (A) Rapid compliance means that the person to whom the notice or 
order was issued took extraordinary measures to abate the violation in 
the shortest possible time and that abatement was achieved before the 
time set for abatement.
    (B) Normal compliance means the person to whom the notice or order 
was issued abated the violation within the time given for abatement.
    (iii) If the consideration of this criterion is impractical because 
of the length of the abatement period, the assessment may be made 
without considering this criterion and may be reassessed after the 
violation has been abated.



Sec. 845.14  Determination of amount of penalty.

    The Office shall determine the amount of any civil penalty by 
converting the total number of points assigned under 30 CFR 845.13 to a 
dollar amount, according to the following schedule:

------------------------------------------------------------------------
                            Points                              Dollars
------------------------------------------------------------------------
1............................................................         32
2............................................................         64
3............................................................         86
4............................................................        108
5............................................................        110
6............................................................        132
7............................................................        254
8............................................................        276
9............................................................        298
10...........................................................        320
11...........................................................        342
12...........................................................        364
13...........................................................        386
14...........................................................        508
15...........................................................        530
16...........................................................        552
17...........................................................        574
18...........................................................        596
19...........................................................        618
20...........................................................        640
21...........................................................        662
22...........................................................        684
23...........................................................        706
24...........................................................        728
25...........................................................        750
26...........................................................        860
27...........................................................      1,070
28...........................................................      1,080
29...........................................................      1,090
30...........................................................      1,100
31...........................................................      1,210
32...........................................................      1,320
33...........................................................      2,430
34...........................................................      2,540
35...........................................................      2,650
36...........................................................      2,760
37...........................................................      2,870
38...........................................................      2,980
39...........................................................      3,090
40...........................................................      3,200
41...........................................................      3,310
42...........................................................      3,420
43...........................................................      3,530
44...........................................................      3,640
45...........................................................      3,750
46...........................................................      3,860
47...........................................................      3,970
48...........................................................      5,080
49...........................................................      5,190
50...........................................................      5,300
51...........................................................      5,410
52...........................................................      5,520
53...........................................................      5,630
54...........................................................      5,740
55...........................................................      5,850
56...........................................................      5,960
57...........................................................      6,070
58...........................................................      6,180
59...........................................................      6,290
60...........................................................      6,400
61...........................................................      6,510
62...........................................................      6,620
63...........................................................      6,730
64...........................................................      6,840
65...........................................................      6,950
66...........................................................      7,060
67...........................................................      7,170
68...........................................................      7,280
69...........................................................      7,390
70...........................................................      7,500
------------------------------------------------------------------------


[47 FR 35640, Aug. 16, 1982, as amended at 62 FR 63276, Nov. 28, 1997; 
66 FR 58647, Nov. 21, 2001; 70 FR 70701, Nov. 22, 2005; 74 FR 34493, 
July 15, 2009]



Sec. 845.15  Assessment of separate violations for each day.

    (a) The Office may assess separately a civil penalty for each day 
from the date of issuance of the notice of violation or cessation order 
to the date set for abatement of the violation. In determining whether 
to make such an assessment, the Office shall consider the factors listed 
in 30 CFR 845.13 and may consider the extent to which the person to whom 
the notice or order was issued gained any economic benefit as a result 
of a failure to comply. For any violation which continues for two or 
more days and which is assigned more than 70 points under Sec. 
845.13(b), the Office shall assess a penalty for a minimum of two 
separate days.
    (b) In addition to the civil penalty provided for in paragraph (a), 
whenever a violation contained in a notice of violation or cessation 
order has not been abated within the abatement period set

[[Page 401]]

in the notice or order or as subsequently extended pursuant to section 
521(a) of the Act, a civil penalty of not less than $1,025 shall be 
assessed for each day during which such failure to abate continues, 
except that:
    (1)(i) If suspension of the abatement requirements of the notice or 
order is ordered in a temporary relief proceeding under section 525(c) 
of the Act, after a determination that the person to whom the notice or 
order was issued will suffer irreparable loss or damage from the 
application of the requirements, the period permitted for abatement 
shall not end until the date on which the Office of Hearings and Appeals 
issues a final order with respect to the violation in question; and
    (ii) If the person to whom the notice or order was issued initiates 
review proceedings under section 526 of the Act with respect to the 
violation, in which the obligations to abate are suspended by the court 
pursuant to section 526(c) of the Act, the daily assessment of a penalty 
shall not be made for any period before entry of a final order by the 
court;
    (2) Such penalty for the failure to abate the violation shall not be 
assessed for more than 30 days for each such violation. If the permittee 
has not abated the violation within the 30-day period, the Office shall 
take appropriate action pursuant to section 518(e), 518(f), 521(a)(4), 
or 521(c) of the Act within 30 days to ensure that abatement occurs or 
to ensure that there will not be a reoccurrence of the failure to abate.

[47 FR 35640, Aug. 16, 1982, as amended at 62 FR 63277, Nov. 28, 1997; 
66 FR 58647, Nov. 21, 2001; 70 FR 70701, Nov. 22, 2005]



Sec. 845.16  Waiver of use of formula to determine civil penalty.

    (a) The Director, upon his own initiative or upon written request 
received within 15 days of issuance of a notice of violation or a 
cessation order, may waive the use of the formula contained in 30 CFR 
845.13 to set the civil penalty, if he or she determines that, taking 
into account exceptional factors present in the particular case, the 
penalty is demonstrably unjust. However, the Director shall not waive 
the use of the formula or reduce the proposed assessment on the basis of 
an argument that a reduction in the proposed penalty could be used to 
abate violations of the Act, this chapter, any applicable program, or 
any condition of any permit or exploration approval. The basis for every 
waiver shall be fully explained and documented in the records of the 
case.
    (b) If the Director waives the use of the formula, he or she shall 
use the criteria set forth in 30 CFR 845.13(b) to determine the 
appropriate penalty. When the Director has elected to waive the use of 
the formula, he or she shall give a written explanation of the basis for 
the assessment made to the person to whom the notice or order was 
issued.



Sec. 845.17  Procedures for assessment of civil penalties.

    (a) Within 15 days of service of a notice or order, the person to 
whom it was issued may submit written information about the violation to 
the Office and to the inspector who issued the notice of violation or 
cessation order. The Office shall consider any information so submitted 
in determining the facts surrounding the violation and the amount of the 
penalty.
    (b) The Office shall serve a copy of the proposed assessment and of 
the work sheet showing the computation of the proposed assessment on the 
person to whom the notice or order was issued, by certified mail, or by 
any alternative means consistent with the rules governing service of a 
summons or complaint under rule 4 of the Federal Rules of Civil 
Procedure, within 30 days of the issuance of the notice or order.
    (1) If a copy of the proposed assessment and work sheet or the 
certified mail is tendered at the address of that person required under 
30 CFR 816.11, or at any address at which that person is in fact 
located, and he or she refuses to accept delivery of or to collect such 
documents, the requirements of this paragraph shall be deemed to have 
been complied with upon such tender.
    (2) Failure by the Office to serve any proposed assessment within 30 
days shall not be grounds for dismissal of all or part of such 
assessment unless the person against whom the proposed penalty has been 
assessed--

[[Page 402]]

    (i) Proves actual prejudice as a result of the delay; and,
    (ii) Makes a timely objection to the delay. An objection shall be 
timely only if made in the normal course of administrative review.
    (c) Unless a conference has been requested, the Office shall review 
and reassess any penalty if necessary to consider facts which were not 
reasonably available on the date of issuance of the proposed assessment 
because of the length of the abatement period. The Office shall serve a 
copy of any such reassessment and of the worksheet showing the 
computation of the reassessment in the manner provided in paragraph (b), 
within 30 days after the date the violation is abated.

[47 FR 35640, Aug. 16, 1982, as amended at 56 FR 28446, June 20, 1991]



Sec. 845.18  Procedures for assessment conference.

    (a) The Office shall arrange for a conference to review the proposed 
assessment or reassessment, upon written request of the person to whom 
the notice or order was issued, if the request is received within 30 
days from the date the proposed assessment or reassessment is received.
    (b)(1) The Office shall assign a conference officer to hold the 
assessment conference. The assessment conference shall not be governed 
by section 554 of title 5 of the United States Code, regarding 
requirements for formal adjudicatory hearings. The assessment conference 
shall be held within 60 days from the date the conference request is 
received or the end of the abatement period, whichever is later: 
Provided, That a failure by the Office to hold such conference within 60 
days shall not be grounds for dismissal of all or part of an assessment 
unless the person against whom the proposed penalty has been assessed 
proves actual prejudice as a result of the delay.
    (2) The Office shall post notice of the time and place of the 
conference at the State or field office closest to the mine at least 5 
days before the conference. Any person shall have a right to attend and 
participate in the conference.
    (3) The conference officer shall consider all relevant information 
on the violation. Within 30 days after the conference is held, the 
conference officer shall either:
    (i) Settle the issues, in which case a settlement agreement shall be 
prepared and signed by the conference officer on behalf of the Office 
and by the person assessed; or
    (ii) Affirm, raise, lower, or vacate the penalty.
    (4) An increase or reduction of a proposed civil penalty assessment 
of more than 25 percent and more than $500 shall not be final and 
binding on the Secretary, until approved by the Director or his or her 
designee.
    (c) The conference officer shall promptly serve the person assessed 
with a notice of his or her action in the manner provided in 30 CFR 
845.17(b) and shall include a worksheet if the penalty has been raised 
or lowered. The reasons for the conference officer's action shall be 
fully documented in the file.
    (d)(1) If a settlement agreement is entered into, the person 
assessed will be deemed to have waived all rights to further review of 
the violation or penalty in question, except as otherwise expressly 
provided for in the settlement agreement. The settlement agreement shall 
contain a clause to this effect.
    (2) If full payment of the amount specified in the settlement 
agreement is not received by the Office within 30 days after the date of 
signing, the Office may enforce the agreement or rescind it and proceed 
according to paragraph (b)(3)(ii) within 30 days from the date of the 
rescission.
    (e) The conference officer may terminate the conference when he or 
she determines that the issues cannot be resolved or that the person 
assessed is not diligently working toward resolution of the issues.
    (f) At formal review proceedings under sections 518, 521(a)(4), and 
525 of the Act, no evidence as to statements made or evidence produced 
by one party at a conference shall be introduced as evidence by another 
party or to impeach a witness.

[47 FR 35640, Aug. 16, 1982, as amended at 53 FR 3675, Feb. 8, 1988; 56 
FR 10063, Mar. 8, 1991]

[[Page 403]]



Sec. 845.19  Request for hearing.

    (a) The person charged with the violation may contest the proposed 
penalty or the fact of the violation by submitting a petition and an 
amount equal to the proposed penalty or, if a conference has been held, 
the reassessed or affirmed penalty to the Office of Hearings and Appeals 
(to be held in escrow as provided in paragraph (b) of this section) 
within 30 days from receipt of the proposed assessment or reassessment 
or 30 days from the date of service of the conference officer's action, 
whichever is later. The fact of the violation may not be contested if it 
has been decided in a review proceeding commenced under 30 CFR 843.16.
    (b) The Office of Hearings and Appeals shall transfer all funds 
submitted under paragraph (a) of this section to the Office, which shall 
hold them in escrow pending completion of the administrative and 
judicial review process, at which time it shall disburse them as 
provided in 30 CFR 845.20.

[47 FR 35640, Aug. 16, 1982, as amended at 56 FR 10063, Mar. 8, 1991]



Sec. 845.20  Final assessment and payment of penalty.

    (a) If the person to whom a notice of violation or cessation order 
is issued fails to request a hearing as provided in Sec. 845.19, the 
proposed assessment shall become a final order of the Secretary and the 
penalty assessed shall become due and payable upon expiration of the 
time allowed to request a hearing.
    (b) If any party requests judicial review of a final order of the 
Secretary, the proposed penalty shall continue to be held in escrow 
until completion of the review. Otherwise, subject to paragraph (c) of 
this section, the escrowed funds shall be transferred to the Office in 
payment of the penalty, and the escrow shall end.
    (c) If the final decision in the administrative and judicial review 
results in an order reducing or eliminating the proposed penalty 
assessed under this part, the Office shall within 30 days of receipt of 
the order refund to the person assessed all or part of the escrowed 
amount, with interest from the date of payment into escrow to the date 
of the refund at the rate of 6 percent or at the prevailing Department 
of the Treasury rate, whichever is greater.
    (d) If the review results in an order increasing the penalty, the 
person to whom the notice or order was issued shall pay the difference 
to the Office within 15 days after the order is mailed to such person.



Sec. 845.21  Use of civil penalties for reclamation.

    (a) To the extent authorized in the applicable annual appropriations 
act or other relevant statute, the Director of OSMRE may utilize money 
collected by the United States pursuant to the assessment of civil 
penalties under section 518 of the Act for reclamation of lands 
adversely affected by coal mining practices after August 3, 1977, until 
such funds are expended.
    (b) The Director may allocate funds at his discretion for 
reclamation projects on lands within any State or on Federal lands or 
Indian lands based on the following priorities:
    (1) Emergency projects as defined in Sec. 700.5 of this chapter;
    (2) Reclamation projects which qualify as priority 1 under section 
403 of the Act;
    (3) Reclamation Projects which qualify as priority 2 under section 
403 of the Act; and
    (4) Reclamation of Federal bond forfeiture sites.
    (c) Notwithstanding paragraph (b) of this section, at his 
discretion, the Director may allocate funds for any other reclamation 
project which constitutes a danger to the environment or to the public 
health and safety.

[53 FR 16017, May 4, 1988, as amended at 54 FR 19342, May 4, 1989; 73 FR 
67631, Nov. 14, 2008]



PART 846_INDIVIDUAL CIVIL PENALTIES--Table of Contents



Sec.
846.1 Scope.
846.12 When an individual civil penalty may be assessed.
846.14 Amount of individual civil penalty.
846.17 Procedure for assessment of individual civil penalty.
846.18 Payment of penalty.

    Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C. 
3701.

[[Page 404]]


    Source: 53 FR 3675, Feb. 8, 1988, unless otherwise noted.



Sec. 846.1  Scope.

    This part covers the assessment of individual civil penalties under 
section 518(f) of the Act.



Sec. 846.12  When an individual civil penalty may be assessed.

    (a) Except as provided in paragraph (b) of this section, the Office 
may assess an individual civil penalty against any corporate director, 
officer or agent of a corporate permittee who knowingly and willfully 
authorized, ordered or carried out a violation, failure or refusal.
    (b) The Office shall not assess an individual civil penalty in 
situations resulting from a permit violation by a corporate permittee 
until a cessation order has been issued by the Office to the corporate 
permittee for the violation, and the cessation order has remained 
unabated for 30 days.



Sec. 846.14  Amount of individual civil penalty.

    (a) In determining the amount of an individual civil penalty 
assessed under Sec. 846.12, the Office shall consider the criteria 
specified in section 518(a) of the Act, including:
    (1) The individual's history of authorizing, ordering or carrying 
out previous violations, failures or refusals at the particular surface 
coal mining operation;
    (2) The seriousness of the violation, failure or refusal (as 
indicated by the extent of damage and/or the cost of reclamation), 
including any irreparable harm to the environment and any hazard to the 
health or safety of the public; and
    (3) The demonstrated good faith of the individual charged in 
attempting to achieve rapid compliance after notice of the violation, 
failure or refusal.
    (b) The penalty shall not exceed $7,500 for each violation. Each day 
of a continuing violation may be deemed a separate violation and the 
Office may assess a separate individual civil penalty for each day the 
violation, failure or refusal continues, from the date of service of the 
underlying notice of violation, cessation order or other order 
incorporated in a final decision issued by the Secretary, until 
abatement or compliance is achieved.

[53 FR 3675, Feb. 8, 1988, as amended at 62 FR 63277, Nov. 28, 1997; 70 
FR 70701, Nov. 22, 2005; 74 FR 34493, July 15, 2009]



Sec. 846.17  Procedure for assessment of individual civil penalty.

    (a) Notice. The Office shall serve on each individual to be assessed 
an individual civil penalty a notice of proposed individual civil 
penalty assessment, including a narrative explanation of the reasons for 
the penalty, the amount to be assessed, and a copy of any underlying 
notice of violation and cessation order.
    (b) Final order and opportunity for review. The notice of proposed 
individual civil penalty assessment shall become a final order of the 
Secretary 30 days after service upon the individual unless:
    (1) The individual files within 30 days of service of the notice of 
proposed individual civil penalty assessment a petition for review with 
the Hearings Division, Office of Hearings and Appeals, U.S. Department 
of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 
(Phone: 703-235-3800), in accordance with 43 CFR 4.1300 et seq.; or
    (2) The Office and the individual or responsible corporate permittee 
agree within 30 days of service of the notice of proposed individual 
civil penalty assessment to a schedule or plan for the abatement or 
correction of the violation, failure or refusal.
    (c) Service. For purposes of this section, service shall be 
performed on the individual to be assessed an individual civil penalty, 
by certified mail, or by any alternative means consistent with the rules 
governing service of a summons and complaint under rule 4 of the Federal 
Rules of Civil Procedure. Service shall be complete upon tender of the 
notice of proposed assessment and included information or of the 
certified mail and shall not be deemed incomplete because of refusal to 
accept.

[53 FR 3675, Feb. 8, 1988, as amended at 56 FR 28446, June 20, 1991; 67 
FR 5204, Feb. 5, 2002]

[[Page 405]]



Sec. 846.18  Payment of penalty.

    (a) No abatement or appeal. If a notice of proposed individual civil 
penalty assessment becomes a final order in the absence of a petition 
for review or abatement agreement, the penalty shall be due upon 
issuance of the final order.
    (b) Appeal. If an individual named in a notice of proposed 
individual civil penalty assessment files a petition for review in 
accordance with 43 CFR 4.1300 et seq., the penalty shall be due upon 
issuance of a final administrative order affirming, increasing or 
decreasing the proposed penalty.
    (c) Abatement agreement. Where the Office and the corporate 
permittee or individual have agreed in writing on a plan for the 
abatement of or compliance with the unabated order, an individual named 
in a notice of proposed individual civil penalty assessment may postpone 
payment until receiving either a final order from the Office stating 
that the penalty is due on the date of such final order, or written 
notice that abatement or compliance is satisfactory and the penalty has 
been withdrawn.
    (d) Delinquent payment. Following the expiration of 30 days after 
the issuance of a final order assessing an individual civil penalty, any 
delinquent penalty shall be subject to interest at the rate established 
by the U.S. Department of the Treasury for late charges on late payments 
to the Federal Government. The Treasury current value of funds rate is 
published by the Fiscal Service in the notices section of the Federal 
Register and on Treasury's Web site. Interest on unpaid penalties will 
run from the date payment first was due until the date of payment. 
Failure to pay overdue penalties may result in one or more of the 
actions specified in Sec. 870.23(a) through (f) of this chapter. 
Delinquent penalties are subject to late payment penalties specified in 
Sec. 870.21(c) of this chapter and processing and handling charges 
specified in Sec. 870.21(d) of this chapter.

[53 FR 3675, Feb. 8, 1988, as amended at 73 FR 67631, Nov. 14, 2008]



PART 847_ALTERNATIVE ENFORCEMENT--Table of Contents



Sec.
847.1 Scope.
847.2 General provisions.
847.11 Criminal penalties.
847.16 Civil actions for relief.

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

    Source: 65 FR 79671, Dec. 19, 2000, unless otherwise noted.



Sec. 847.1  Scope.

    This part governs the use of measures provided in sections 518(e), 
518(g) and 521(c) of the Act for criminal penalties and civil actions to 
compel compliance with provisions of the Act.



Sec. 847.2  General provisions.

    (a) Whenever a court of competent jurisdiction enters a judgment 
against or convicts a person under these provisions, we must update AVS 
to reflect the judgment or conviction.
    (b) The existence of a performance bond or bond forfeiture cannot be 
used as the sole basis for determining that an alternative enforcement 
action is unwarranted.
    (c) Each State regulatory program must include provisions for civil 
actions and criminal penalties that are no less stringent than those in 
this part and include the same or similar procedural requirements.
    (d) Nothing in this part eliminates or limits any additional 
enforcement rights or procedures available under Federal or State law.



Sec. 847.11  Criminal penalties.

    Under sections 518(e) and (g) of the Act, we, the regulatory 
authority, may request the Attorney General to pursue criminal penalties 
against any person who--
    (a) Willfully and knowingly violates a condition of the permit;
    (b) Willfully and knowingly fails or refuses to comply with--
    (1) Any order issued under section 521 or 526 of the Act; or
    (2) Any order incorporated into a final decision issued by the 
Secretary under the Act (except for those orders specifically excluded 
under section 518(e) of the Act); or

[[Page 406]]

    (c) Knowingly makes any false statement, representation, or 
certification, or knowingly fails to make any statement, representation, 
or certification in any application, record, report, plan, or other 
document filed or required to be maintained under the regulatory program 
or any order or decision issued by the Secretary under the Act.

[65 FR 79671, Dec. 19, 2000, as amended at 72 FR 68031, Dec. 3, 2007]



Sec. 847.16  Civil actions for relief.

    (a) Under section 521(c) of the Act, we, the regulatory authority, 
may request the Attorney General to institute a civil action for relief 
whenever you, the permittee, or your agent--
    (1) Violate or fail or refuse to comply with any order or decision 
that we issue under the Act or regulatory program;
    (2) Interfere with, hinder, or delay us in carrying out the 
provisions of the Act or its implementing regulations;
    (3) Refuse to admit our authorized representatives onto the site of 
a surface coal mining and reclamation operation;
    (4) Refuse to allow our authorized representatives to inspect a 
surface coal mining and reclamation operation;
    (5) Refuse to furnish any information or report that we request 
under the Act or regulatory program; or
    (6) Refuse to allow access to, or copying of, those records that we 
determine necessary to carry out the provisions of the Act and its 
implementing regulations.
    (b) A civil action for relief includes a permanent or temporary 
injunction, restraining order, or any other appropriate order by a 
district court of the United States for the district in which the 
surface coal mining and reclamation operation is located or in which you 
have your principal office.
    (c) Temporary restraining orders will be issued in accordance with 
Rule 65 of the Federal Rules of Civil Procedure, as amended.
    (d) Any relief the court grants to enforce an order under paragraph 
(b) of this section will continue in effect until completion or final 
termination of all proceedings for review of that order under the Act or 
its implementing regulations unless, beforehand, the district court 
granting the relief sets aside or modifies the order.

[65 FR 79671, Dec. 19, 2000, as amended at 72 FR 68031, Dec. 3, 2007]

[[Page 407]]



    SUBCHAPTER M_TRAINING, EXAMINATION, AND CERTIFICATION OF BLASTERS



PART 850_PERMANENT REGULATORY PROGRAM REQUIREMENTS_STANDARDS FOR CERTIFICATION 

OF BLASTERS--Table of Contents



Sec.
850.1 Scope.
850.5 Definition.
850.10 Information collection.
850.12 Responsibility.
850.13 Training.
850.14 Examination.
850.15 Certification.

    Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq.

    Source: 48 FR 9492, Mar. 4, 1983, unless otherwise noted.



Sec. 850.1  Scope.

    This part establishes the requirements and the procedures applicable 
to the development of regulatory programs for training, examination, and 
certification of persons engaging in or directly responsible for the use 
of explosives in surface coal mining operations.



Sec. 850.5  Definition.

    As used in this part--
    Blaster means a person directly responsible for the use of 
explosives in surface coal mining operations who is certified under this 
part.



Sec. 850.10  Information collection.

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget under 44 U.S.C. 
3507 and assigned clearance number 1029-0080. The information is being 
collected to meet the requirements of sections 503, 515, and 719 of Pub. 
L. 95-87. This information will be used by the regulatory authority to 
assist in implementing the blaster certification program. The obligation 
to respond is mandatory.



Sec. 850.12  Responsibility.

    (a) The regulatory authority is responsible for promulgating rules 
governing the training, examination, certification and enforcement of a 
blaster certification program for surface coal mining operations. When 
the regulatory authority is a State, the State shall submit these rules 
of the Office of Surface Mining for approval under parts 731 and 732 of 
this chapter.
    (b) The regulatory authority shall develop and adopt a program to 
examine and certify all persons who are directly responsible for the use 
of explosives in a surface coal mining operation within 12 months after 
approval of a State program or implementation of a Federal program or 
within 12 months after March 4, 1983 of this rule, whichever is later. 
The Director may approve an extension of the 12-month period upon a 
demonstration of good cause.

[48 FR 9492, Mar. 4, 1983, as amended at 48 FR 44781, Sept. 30, 1983]



Sec. 850.13  Training.

    (a) The regulatory authority shall establish procedures which 
require that--
    (1) Persons seeking to become certified as blasters receive training 
including, but not limited to, the technical aspects of blasting 
operations and State and Federal laws governing the storage, 
transportation, and use of explosives; and
    (2) Persons who are not certified and who are assigned to a blasting 
crew or assist in the use of explosives receive direction and on-the-job 
training from a blaster.
    (b) The regulatory authority shall ensure that courses are available 
to train persons responsible for the use of explosives in surface coal 
mining operations. The courses shall provide training and discuss 
practical applications of--
    (1) Explosives, including--
    (i) Selection of the type of explosive to be used;
    (ii) Determination of the properties of explosives which will 
produce desired results at an acceptable level of risk; and
    (iii) Handling, transportation, and storage;
    (2) Blast designs, including--

[[Page 408]]

    (i) Geologic and topographic considerations;
    (ii) Design of a blast hole, with critical dimensions;
    (iii) Pattern design, field layout, and timing of blast holes; and
    (iv) Field applications;
    (3) Loading blastholes, including priming and boostering;
    (4) Initiation systems and blasting machines;
    (5) Blasting vibrations, airblast, and flyrock, including--
    (i) Monitoring techniques, and
    (ii) Methods to control adverse affects;
    (6) Secondary blasting applications;
    (7) Current Federal and State rules applicable to the use of 
explosives;
    (8) Blast records;
    (9) Schedules;
    (10) Preblasting surveys, including--
    (i) Availability,
    (ii) Coverage, and
    (iii) Use of in-blast design;
    (11) Blast-plan requirements;
    (12) Certification and training;
    (13) Signs, warning signals, and site control;
    (14) Unpredictable hazards, including--
    (i) Lightning,
    (ii) Stray currents,
    (iii) Radio waves, and
    (iv) Misfires.



Sec. 850.14  Examination.

    (a) The regulatory authority shall ensure that candidates for 
blaster certification are examined by reviewing and verifying the--
    (1) Competence of persons directly responsible for the use of 
explosives in surface coal mining operations through a written 
examination in technical aspects of blasting and State and Federal laws 
governing the storage, use, and transportation of explosives; and
    (2) Practical field experience of the candidates as necessary to 
qualify a person to accept the responsibility for blasting operations in 
surface coal mining operations. Such experience shall demonstrate that 
the candidate possesses practical knowledge of blasting techniques, 
understands the hazards involved in the use of explosives, and otherwise 
has exhibited a pattern of conduct consistent with the acceptance of 
responsibility for blasting operations.
    (b) Applicants for blaster certification shall be examined, at a 
minimum, in the topics set forth in Sec. 850.13(b).



Sec. 850.15  Certification.

    (a) Issuance of certification. The regulatory authority shall 
certify for a fixed period those candidates examined and found to be 
competent and to have the necessary experience to accept responsibility 
for blasting operations in surface coal mining operations.
    (b) Suspension and revocation. (1) The regulatory authority, when 
practicable, following written notice and opportunity for a hearing, 
may, and upon a finding of willful conduct, shall suspend or revoke the 
certification of a blaster during the term of the certification or take 
other necessary action for any of the following reasons:
    (i) Noncompliance with any order of the regulatory authority.
    (ii) Unlawful use in the work place of, or current addiction to, 
alcohol, narcotics, or other dangerous drugs.
    (iii) Violation of any provision of the State or Federal explosives 
laws or regulations.
    (iv) Providing false information or a misrepresentation to obtain 
certification.
    (2) If advance notice and opportunity for hearing cannot be 
provided, an opportunity for a hearing shall be provided as soon as 
practical following the suspension, revocation, or other adverse action.
    (3) Upon notice of a revocation, the blaster shall immediately 
surrender to the regulatory authority the revoked certificate.
    (c) Recertification. The regulatory authority may require the 
periodic reexamination, training, or other demonstration of continued 
blaster competency.
    (d) Protection of certification. Certified blasters shall take every 
reasonable precaution to protect their certificates from loss, theft, or 
unauthorized duplication. Any such occurrence shall be reported 
immediately to the certifying authority.

[[Page 409]]

    (e) Conditions. The regulatory authority shall specify conditions 
for maintaining certification which shall include the following:
    (1) A blaster shall immediately exhibit his or her certificate to 
any authorized representative of the regulatory authority or the Office 
upon request.
    (2) Blasters' certifications shall not be assigned or transferred.
    (3) Blasters shall not delegate their responsibility to any 
individual who is not a certified blaster.



                       SUBCHAPTERS N	O [RESERVED]


[[Page 410]]



                  SUBCHAPTER P_PROTECTION OF EMPLOYEES



PART 865_PROTECTION OF EMPLOYEES--Table of Contents



Sec.
865.1 Scope.
865.11 Protected activity.
865.12 Procedures for filing an application for review of 
          discrimination.
865.13 Investigation and conference procedures.
865.14 Request for hearing.
865.15 Formal adjudicatory proceedings.

    Authority: Secs. 201, 501, 502 and 703, Pub. L. 95-87, 91 Stat. 445 
(30 U.S.C. 1201.)

    Source: 42 FR 62712, Dec. 13, 1977, unless otherwise noted. 
Redesignated at 44 FR 15312, Mar. 13, 1979.



Sec. 865.1  Scope.

    This part establishes procedures regarding--
    (a) The reporting of acts of discriminatory discharge or other acts 
of discrimation under the Act caused by any person. Forms of 
discrimination include, but are not limited to: Firing, suspension, 
transfer or demotion, denial or reduction of wages and benefits, 
coercion by promises of benefits or threats of reprisal, and 
interference with the exercise of any rights afforded under the Act:
    (b) The investigation of applications for review and holding of 
informal conferences about the alleged discrimination; and
    (c) The request for formal hearings with the Office of Hearings and 
Appeals.



Sec. 865.11  Protected activity.

    (a) No person shall discharge or in any other way discriminate 
against or cause to be fired or discriminated against any employee or 
any authorized representative of employees because that employee or 
representative has--
    (1) Filed, instituted or caused to be filed or instituted any 
proceedings under the Act by--
    (i) Reporting alleged violations or dangers to the Secretary, the 
State Regulatory Authority, or the employer or his representative.
    (ii) Requesting an inspection or investigation; or
    (iii) Taking any other action which may result in a proceeding under 
the Act.
    (2) Made statements, testified, or is about to do so--
    (i) In any informal or formal adjudicatory proceeding;
    (ii) In any informal conference proceeding;
    (iii) In any rulemaking proceeding;
    (iv) In any investigation, inspection or other proceeding under the 
Act;
    (v) In any judicial proceeding under the Act.
    (3) Has exercised on his own behalf or on behalf of others any right 
granted by the Act.
    (b) Each employer conducting operations which are regulated under 
this Act, shall within 30 days from the effective day of these 
regulations, provide a copy of this part to all current employees and to 
all new employees at the time of their hiring.

[42 FR 62712, Dec. 13, 1977; 43 FR 2722, Jan. 19, 1978. Redesignated at 
44 FR 15312, Mar. 13, 1979]



Sec. 865.12  Procedures for filing an application for review of 

discrimination.

    (a) Who may file. Any employee, or any authorized representative of 
employees, who believes that he has been discriminated against by any 
person in violation of Sec. 865.11(a) of this part may file an 
application for review. For the purpose of these regulations, an 
application for review means the presentation of a written report of 
discrimination stating the reasons why the person believes he has been 
discriminated against and the facts surrounding the alleged 
discrimination.
    (b) Where to file. The employee or representative may file the 
application for review at any location of the Office and each office 
shall maintain a log of all filing.
    (c) Time for filing. The employee or representative shall file an 
application for review within 30 days after the alleged discrimination 
occurs. An application is considered filed--

[[Page 411]]

    (1) On the date delivered if delivered a person to the Office, or
    (2) On the date mailed to the Office.
    (d) Running of the time of filing. The time for filing begins when 
the employee knows or has reason to know of the alleged discriminatory 
activity.



Sec. 865.13  Investigation and conference procedures.

    (a) Within 7 days after receipt of any application for review, the 
Office shall mail a copy of the application for review to the person 
alleged to have caused the discrimination, shall file the application 
for review with the Office of Hearings and Appeals and shall notify the 
employee and the alleged discriminating person that the Office will 
investigate the complaint. The alleged discriminating person may file a 
response to the application for review within 10 days after he receives 
the copy of the application for review. The response shall specifically 
admit, deny or explain each of the facts alleged in the application 
unless the alleged discriminating person is without knowledge in which 
case he shall so state.
    (b) The Office shall initiate an investigation of the alleged 
discrimination with 30 days after receipt of the application for review. 
The Office shall complete the investigation with 60 days of the date of 
the receipt of the application for review. If circumstances surrounding 
the investigation prevent completion within the 60-day period, the 
Office shall notify the person who filed the application for review and 
the alleged discriminating person of the delay, the reason for the 
delay, and the expected completion date for the investigation.
    (c) Within 7 days after completion of the investigation the Office 
shall invite the parties to an informal conference to discuss the 
findings and preliminary conclusions of the investigation. The purpose 
of the informal conference is to attempt to conciliate the matter. If a 
complaint is resovled at an informal conference, the terms of the 
agreement will be recorded in a written document that will be signed by 
the alleged discriminating person, the employee and the representative 
of the Office. If the Office concludes on the basis of a subsequent 
investigation that any party to the agreement has failed in any material 
respect to comply with the terms of any agreement reached during an 
informal conference, the Office shall take appropriate action to obtain 
compliance with the agreement.
    (d) Following the investigation and any informal conference held, 
the Office shall complete a report of investigation which shall include 
a summary of the results of the conference. Copies of this report shall 
be available to the parties in the case.



Sec. 865.14  Request for hearing.

    (a) If the Office determines that a violation of this part has 
probably occurred and was not resolved at an informal conference, the 
Director shall request a hearing on the employee's behalf before the 
Office of Hearings and Appeals within 10 days of the scheduled informal 
hearing. the parties shall be notified of the detemination. If the 
Director declines to request a hearing the employee shall be notified 
within 10 days of the scheduled informal conference and informed of his 
right to request a hearing on his own behalf.
    (b) The employee may request a hearing with the Office of Hearings 
and Appeals after 60 days have elapsed from the filing of his 
application.



Sec. 865.15  Formal adjudicatory proceedings.

    (a) Formal adjudication of a complaint filed under this part shall 
be conducted in the Office of Hearings and Appeals under 43 CFR part 4.
    (b) A hearing shall be held as promptly as possible consistent with 
the opportunity for discovery provided for under 43 CFR part 4.
    (c) Upon a finding of violation of Sec. 865.11 of this part, the 
Secretary shall order the appropriate affirmative relief including, but 
not limited to, the rehiring or reinstatement of the employee or 
representative of employees to his former position with compensation. At 
the request of the employee a sum equal to the aggregate amount of all 
costs and expenses including attorneys'

[[Page 412]]

fees which have been reasonably incurred by the employee for, or in 
connection with, the institution and prosecution of the proceedings 
shall be assessed against the person committing the violation.
    (d) On or after 10 days after filing an application for review under 
this part the Secretary or the employee may seek temporary relief in the 
Office of Hearings and Appeals under 43 CFR part 4.

[[Page 413]]



              SUBCHAPTER R_ABANDONED MINE LAND RECLAMATION



PART 870_ABANDONED MINE RECLAMATION FUND_FEE COLLECTION AND COAL PRODUCTION 

REPORTING--Table of Contents



Sec.
870.1 Scope.
870.5 Definitions.
870.10 Information collection.
870.11 Applicability.
870.12 Reclamation fee.
870.13 Fee rates.
870.14 Determination of percentage-based fees.
870.15 Reclamation fee payment.
870.16 Acceptable payment methods.
870.17 Filing the OSM-1 Form.
870.18 General rules for calculating excess moisture.
870.19 How to calculate excess moisture in HIGH-rank coals.
870.20 How to calculate excess moisture in LOW-rank coals.
870.21 Late payments.
870.22 Maintaining required production records.
870.23 Consequences of noncompliance.

    Authority: 28 U.S.C. 1746, 30 U.S.C. 1201 et seq., and Pub. L. 105-
277.

    Source: 47 FR 28593, June 30, 1982, unless otherwise noted.



Sec. 870.1  Scope.

    This part sets out our procedures to collect fees for the Fund and 
to report coal production.

[73 FR 67631, Nov. 14, 2008]



Sec. 870.5  Definitions.

    As used in this Part--
    Anthracite, bituminous and subbituminous coal means all coals other 
than lignite coal.
    Calendar quarter means a 3-month period within a calendar year. The 
first calendar quarter begins on January 1 of the calendar year and ends 
on the last day of March. The second calendar quarter begins on the 
first day of April and ends on the last day of June. The third calendar 
quarter begins on the first day of July and ends on the last day of 
September. The fourth calendar quarter begins on the first day of 
October and ends on the last day of December.
    Excess moisture means the difference between total moisture and 
inherent moisture, calculated according to Sec. 870.19 for high-rank 
coals or the difference between total moisture and inherent moisture 
calculated according to Sec. 870.20 for low-rank coals.
    Expended means that moneys have been obligated, encumbered, or 
committed for reclamation by contract by the OSM, State, or Tribe for 
work to be accomplished or services to be rendered.
    Fee compliance officer means any person authorized by the Secretary 
to exercise authority in matters relating to this part.
    In situ coal mining means activities conducted on the surface or 
underground in connection with in-place distillation, retorting, 
leaching or other chemical or physical processing of coal. The term 
includes, but is not limited to, in situ gasification, in situ leaching, 
slurry mining, solution mining, bore hole mining, and fluid recovery 
mining. At this time, part 870 considers only in situ gasification.
    Inherent moisture means moisture that exists as an integral part of 
the coal seam in its natural state, including water in pores, but 
excluding that present in macroscopically visible fractures, as 
determined according to Sec. 870.19(a) or Sec. 870.20(a).
    Lignite coal means consolidated lignite coal having less than 8,300 
British thermal units per pound, moist and mineral-matter-free. Moist, 
mineral-matter free British thermal units per pound are determined by 
Parr's formula, equation 3, on page 222 of ``Standard Specification for 
Classification of Coals by Rank,'' in American Society for Testing and 
Materials ASTM D 388-77 (Philadelphia, 1977). Parr's formula follows:

Moist, Mn-Free Btu=
(Bu-50S)/[100-(1.08A+0.55S)]x100

where:

Mn = Mineral matter
Btu = British thermal units per pound (calorific value)
A = percentage of ash, and
S = percentage of sulfur

[[Page 414]]

``Moist'' refers to coal containing its natural inherent or bed 
moisture, but not including water adhering to the surface of the coal.

    Mineral owner means any person or entity owning 10 percent or more 
of the mineral estate for a permit. If no single mineral owner meets the 
10 percent rule, then the largest single mineral owner shall be 
considered to be the mineral owner. If there are several persons who 
have successively transferred the mineral rights, information shall be 
provided on the last owner(s) in the chain prior to the permittee, i.e. 
the person or persons who have granted the permittee the right to 
extract the coal.
    Reclaimed coal means coal recovered from a deposit that is not in 
its original geological location, such as refuse piles or culm banks or 
retaining dams and ponds that are or have been used during the mining or 
preparation process, and stream coal deposits. Reclaimed coal operations 
are considered to be surface coal mining operations for fee liability 
and calculation purposes.
    Surface coal mining means the extraction of coal from the earth by 
removing the materals over the coal seam before recovering the coal and 
includes auger coal mining. For purposes of subchapter R, reclaiming 
coal operations are considered surface coal mining.
    Ton means 2,000 pounds avoirdupois (0.90718 metric ton).
    Total moisture means the measure of weight loss in an air atmosphere 
under rigidly controlled conditions of temperature, time and air flow, 
as determined according to either Sec. 870.19(a) or Sec. 870.20(a).
    Underground coal mining means the extraction of coal from the earth 
by developing entries from the surface to the coal seam before 
recovering the coal by underground extraction methods, and includes in 
situ mining.
    Value means gross value at the time of initial bona fide sale, 
transfer of ownership, or use by the operator, but does not include the 
reclamation fee required by this part.

[47 FR 28593, June 30, 1982, as amended at 53 FR 19726, May 27, 1988; 59 
FR 28168, May 31, 1994; 60 FR 9980, Feb. 22, 1995; 62 FR 60142, Nov. 6, 
1997; 73 FR 67631, Nov. 14, 2008]



Sec. 870.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
part 870 and the OSM-1 Form and assigned control number 1029-0063. The 
information is used to maintain a record of coal produced nationwide 
each calendar quarter, the method of coal removal, the type of coal, and 
the basis for coal tonnage reporting. Persons must respond to meet the 
requirements of SMCRA. A Federal agency may not conduct or sponsor, and 
you are not required to respond to, a collection of information unless 
it displays a currently valid OMB control number.

[73 FR 67631, Nov. 14, 2008]



Sec. 870.11  Applicability.

    The regulations in this part apply to all surface and underground 
coal mining operations except--
    (a) The extraction of coal by a landowner for his own noncommercial 
use from land owned or leased by him;
    (b) The extraction of coal as an incidental part of Federal, State, 
or local government-financed highway or other construction;
    (c) The extraction of coal incidental to the extraction of other 
minerals where coal does not exceed 16\2/3\ percent of the total tonnage 
of coal and other minerals removed for commercial use or sale
    (1) In accordance with part 702 of this chapter for Federal program 
States and on Indian lands or
    (2) In any twelve consecutive months in a State with an approved 
State program until counterpart regulations pursuant to part 702 of this 
chapter have been incorporated into the State program and in accordance 
with such counterpart regulations, thereafter; and
    (d) The extraction of less than 250 tons of coal within twelve 
consecutive months.

[47 FR 28593, June 30, 1982, as amended at 54 FR 52123, Dec. 20, 1989; 
54 FR 52123, Dec. 20, 1989; 73 FR 67631, Nov. 14, 2008]



Sec. 870.12  Reclamation fee.

    (a) The operator shall pay a reclamation fee on each ton of coal 
produced

[[Page 415]]

for sale, transfer, or use, including the products of in situ mining.
    (b) The fee shall be determined by the weight and value at the time 
of initial bona fide sale, transfer of ownership, or use by the 
operator.
    (1) The initial bona fide sale, transfer of ownership, or use shall 
be determined by the first transaction or use of the coal by the 
operator immediately after it is severed, or removed from a reclaimed 
coal refuse deposit.
    (2) The value of the coal shall be determined F.O.B. mine.
    (3) The weight of each ton shall be determined by the actual gross 
weight of the coal.
    (i) Impurities that have not been removed prior to the time of 
initial bona fide sale, transfer of ownership, or use by the operator, 
excluding excess moisture for which a reduction has been taken pursuant 
to Sec. 870.18, shall not be deducted from the gross weight.
    (ii) Operators selling coal on a clean coal basis shall retain 
records that show run-of-mine tonnage, and the basis for the clean coal 
transaction.
    (iii) Insufficient records shall subject the operator to fees based 
on raw tonnage data.
    (c) If the operator combines surface mined coal, including reclaimed 
coal, with underground mined coal before the coal is weighed for fee 
purposes, the higher reclamation fee shall apply, unless the operator 
can substantiate the amount of coal produced by surface mining by 
acceptable engineering calculations or other reports which the Director 
may require.
    (d) The reclamation fee shall be paid after the end of each calendar 
quarter beginning with the calendar quarter starting October 1, 1977.

[47 FR 28593, June 30, 1982, as amended at 53 FR 19726, May 27, 1988; 59 
FR 28169, May 31, 1994; 69 FR 56130, Sept. 17, 2004]



Sec. 870.13  Fee rates.

    (a) Fees for coal produced for sale, transfer, or use through 
September 30, 2007--(1) Surface mining fees. The fee for anthracite, 
bituminous, and subbituminous coal, including reclaimed coal, is 35 
cents per ton unless the value of such coal is less than $3.50 per ton, 
in which case the fee is 10 percent of the value.
    (2) Underground mining fees. The fee for anthracite, bituminous, and 
subbituminous coal is 15 cents per ton unless the value of such coal is 
less than $1.50 per ton, in which case the fee is 10 percent of the 
value.
    (3) Surface and underground mining fees for lignite coal. The fee 
for lignite coal is 10 cents per ton unless the value of such coal is 
less than $5.00 per ton, in which case the fee charged is 2 percent of 
the value.
    (4) In situ coal mining fees. The fee for in situ mined coal, except 
lignite coal, is 15 cents per ton based on Btu's per ton in place 
equated to the gas produced at the site as certified through analysis by 
an independent laboratory. The fee for in situ mined lignite is 10 cents 
per ton based on the Btu's per ton of coal in place equated to the gas 
produced at the site as certified through analysis by an independent 
laboratory.
    (b) Fees for coal produced for sale, transfer, or use from October 
1, 2007, through September 30, 2012. Fees for coal produced for sale, 
transfer, or use from October 1, 2007, through September 30, 2012, are 
shown in the following table:

------------------------------------------------------------------------
          Type of fee              Type of coal        Amount of fee
------------------------------------------------------------------------
(1) Surface mining fee........  Anthracite,        (i) If value of coal
                                 bituminous, and    is $3.15 per ton or
                                 subbituminous,     more, fee is 31.5
                                 including          cents per ton.
                                 reclaimed.        (ii) If value of coal
                                                    is less than $3.15
                                                    per ton, fee is 10
                                                    percent of the
                                                    value.
(2) Underground mining fee....  Anthracite,        (i) If value of coal
                                 bituminous, and    is $1.35 per ton or
                                 subbituminous.     more, fee is 13.5
                                                    cents per ton.
                                                   (ii) If value of coal
                                                    is less than $1.35
                                                    per ton, fee is 10
                                                    percent of the
                                                    value.
(3) Surface and underground     Lignite..........  (i) If value of coal
 mining fee.                                        is $4.50 per ton or
                                                    more, fee is 9 cents
                                                    per ton.
                                                   (ii) If value of coal
                                                    is less than $4.50
                                                    per ton, fee is 2
                                                    percent of the
                                                    value.

[[Page 416]]

 
(4) In situ coal mining fee...  All types other    13.5 cents per ton
                                 than lignite.      based on Btu's per
                                                    ton in place equated
                                                    to the gas produced
                                                    at the site as
                                                    certified through
                                                    analysis by an
                                                    independent
                                                    laboratory.
(5) In situ coal mining fee...  Lignite..........  9 cents per ton based
                                                    on the Btu's per ton
                                                    of coal in place
                                                    equated to the gas
                                                    produced at the site
                                                    as certified through
                                                    analysis by an
                                                    independent
                                                    laboratory.
------------------------------------------------------------------------

    (c) Fees for coal produced for sale, transfer, or use from October 
1, 2012, through September 30, 2021. The fees for coal produced for 
sale, transfer, or use from October 1, 2012, through September 30, 2021, 
are shown in the following table:

------------------------------------------------------------------------
          Type of fee              Type of coal        Amount of fee
------------------------------------------------------------------------
(1) Surface mining fee........  Anthracite,        (i) If value of coal
                                 bituminous, and    is $2.80 per ton or
                                 subbituminous,     more, fee is 28
                                 including          cents per ton.
                                 reclaimed coal.   (ii) If value of coal
                                                    is less than $2.80
                                                    per ton, fee is 10
                                                    percent of the
                                                    value.
(2) Underground mining fee....  Anthracite,        (i) If value of coal
                                 bituminous, and    is $1.20 per ton or
                                 subbituminous.     more, fee is 12
                                                    cents per ton.
                                                   (ii) If value of coal
                                                    is less than $1.20
                                                    per ton, fee is 10
                                                    percent of the
                                                    value.
(3) Surface and underground     Lignite..........  (i) If value of coal
 mining fee.                                        is $4.00 per ton or
                                                    more, fee is 8 cents
                                                    per ton.
                                                   (ii) If value of coal
                                                    is less than $4.00
                                                    per ton, fee is 2
                                                    percent of the
                                                    value.
(4) In situ coal mining fee...  All types other    12 cents per ton
                                 than lignite.      based on Btu's per
                                                    ton in place equated
                                                    to the gas produced
                                                    at the site as
                                                    certified through
                                                    analysis by an
                                                    independent
                                                    laboratory.
(5) In situ coal mining fee...  Lignite..........  8 cents per ton based
                                                    on the Btu's per ton
                                                    of coal in place
                                                    equated to the gas
                                                    produced at the site
                                                    as certified through
                                                    analysis by an
                                                    independent
                                                    laboratory.
------------------------------------------------------------------------


[47 FR 28593, June 30, 1982, as amended at 69 FR 56130, Sept. 17, 2004; 
73 FR 67631, Nov. 14, 2008]



Sec. 870.14  Determination of percentage-based fees.

    (a) If you pay a fee based on a percentage of the value of coal, you 
must include documentation supporting the claimed coal value with your 
fee payment and production report. We may review this information and 
any additional documentation we may require, including examination of 
your books and records. We may accept the valuation you claim, or we may 
determine another value of the coal.
    (b) If we determine that a higher fee must be paid, you must pay the 
additional fee together with interest computed under Sec. 870.21.

[73 FR 67632, Nov. 14, 2008]



Sec. 870.15  Reclamation fee payment.

    (a) You must pay the reclamation fee based on calendar quarter 
tonnage no later than 30 days after the end of each calendar quarter.
    (b) Along with any fee payment due, you must submit to us a 
completed Coal Sales and Reclamation Fee Report (OSM-1 Form). You can 
file the OSM-1 Form either in paper format or in electronic format as 
specified in Sec. 870.17. On the OSM-1 Form, you must report:
    (1) The tonnage of coal sold, used, or transferred;
    (2) The name and address of any person or entity who is the owner of 
10 percent or more of the mineral estate for a given permit; and
    (3) The name and address of any person or entity who purchases 10 
percent or more of the production from a given permit, during the 
applicable quarter.
    (c) If no single mineral owner or purchaser meets the 10 percent 
criterion in paragraphs (b)(2) and (b)(3) of this section, then you must 
report the name and address of the largest single mineral owner and 
purchaser. If several persons have successively transferred

[[Page 417]]

the mineral rights, you must include on the OSM-1 Form information on 
the last owner(s) in the chain before the permittee, i.e. the person or 
persons who have granted the permittee the right to extract the coal.
    (d) At the time of reporting, you may designate the information 
required by paragraphs (b) and (c) of this section as confidential.

[73 FR 67632, Nov. 14, 2008]



Sec. 870.16  Acceptable payment methods.

    (a) If you owe total quarterly reclamation fees of $25,000 or more 
for one or more mines, you must:
    (1) Use an electronic fund transfer mechanism approved by the U.S. 
Department of the Treasury;
    (2) Forward payments by electronic transfer;
    (3) Include the applicable Master Entity No.(s) (Part 1-Block 4 on 
the OSM-1 Form), and OSM Document No.(s) (Part 1-upper right corner of 
the OSM-1 Form) on the wire message; and
    (4) Use our approved form or approved electronic form to report coal 
tonnage sold, used, or for which ownership was transferred to the 
address indicated in the Instructions for Completing the OSM-1 Form.
    (b) If you owe less than $25,000 in quarterly reclamation fees for 
one or more mines, you may:
    (1) Forward payments by electronic transfer in accordance with the 
procedures specified in paragraph (a) of this section; or
    (2) Submit a check or money order payable to the Office of Surface 
Mining Reclamation and Enforcement in the same envelope with the OSM-1 
Form to: Office of Surface Mining Reclamation and Enforcement, P.O. Box 
360095M, Pittsburgh, Pennsylvania 15251.
    (c) If you pay more than $25,000 by a method other than an 
electronic fund transfer mechanism approved by the U.S. Department of 
the Treasury, you will be in violation of the Surface Mining Control and 
Reclamation Act of 1977, as amended.

[73 FR 67632, Nov. 14, 2008]



Sec. 870.17  Filing the OSM-1 Form.

    (a) Filing an OSM-1 Form electronically. You may submit a quarterly 
electronic OSM-1 Form in place of a quarterly paper OSM-1 Form. 
Submitting the OSM-1 Form electronically is optional. If you submit your 
form electronically, you must use a methodology and medium approved by 
us and do one of the following:
    (1) Maintain a properly notarized paper copy of the identical OSM-1 
Form for review and approval by our Fee Compliance auditors (in order to 
comply with the notary requirement in SMCRA); or
    (2) Submit an electronically signed and dated statement made under 
penalty of perjury that the information contained in the OSM-1 Form is 
true and correct.
    (b) Filing a paper OSM-1 Form. Alternatively, you may submit a 
quarterly paper OSM-1 Form. If you choose to submit your form on paper, 
you must do one of the following:
    (1) Submit a properly notarized copy of the OSM-1 Form; or
    (2) Submit the OSM-1 Form with a signed and dated statement made 
under penalty of perjury that the information contained in the form is 
true and correct. Under the unsworn statement option, you must sign the 
following statement: ``I declare under penalty of perjury that the 
foregoing is true and correct. Executed on [date].''

[73 FR 67632, Nov. 14, 2008]



Sec. 870.18  General rules for calculating excess moisture.

    If you are an operator who mined coal after June 1988, you may 
deduct the weight of excess moisture in the coal to determine 
reclamation fees you owe under 30 CFR 870.12(b)(3)(i). Excess moisture 
is the difference between total moisture and inherent moisture. To 
calculate excess moisture in HIGH-rank coal, follow Sec. 870.19. To 
calculate excess moisture in LOW-rank coal, follow Sec. 870.20. Report 
your calculations on the OSM-1 form, Coal Reclamation Fee Report, for 
every calendar quarter in which you claim a deduction. Some cautions:
    (a) You or your customer may do any test required by Sec. Sec. 
870.19 and 870.20. But

[[Page 418]]

whoever does a test, you are to keep test results and all related 
records for at least six years after the test date.
    (b) If OSM disallows any or all of an allowance for excess moisture, 
you must submit an additional fee plus interest computed according to 
Sec. 870.21(a) and penalties computed according to Sec. 870.21(c).
    (c) The following definitions are applicable to Sec. Sec. 870.19 
and 870.20. ASTM standards D4596-93, Standard Practice for Collection of 
Channel Samples of Coal in a Mine; D5192-91, Standard Practice for 
Collection of Coal Samples from Core; and, D1412-93, Standard Test 
Method for Equilibrium Moisture of Coal at 96 to 97 Percent Relative 
Humidity and 30 [deg]C are incorporated by reference as published in the 
1994 Annual Book of ASTM Standards, Volume 05.05. The Director of the 
Federal Register approved this incorporation by reference in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51. Each applicable ASTM standard is 
incorporated as it exists on the date of the approval, and a notice of 
any change in it will be published in the Federal Register. You may 
obtain copies from the ASTM, 100 Barr Harbor Drive, West Conshohocken, 
Pennsylvania 19428. A copy of the ASTM standards is available for 
inspection at the Office of Surface Mining Reclamation and Enforcement, 
Administrative Record, Room 101, 1951 Constitution Avenue, NW., 
Washington, DC, or at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call 202-741-6030, or go to: http://www.archives.gov/federal--register/
code--of--federal--regulations/ibr--locations.html.
    (1) As-shipped coal means raw or prepared coal that is loaded for 
shipment from the mine or loading facility.
    (2) Blended coal means coals of various qualities and predetermined 
quantities mixed to control the final product.
    (3) Channel sample means a sample of coal collected according to 
ASTM standard D4596-93 from a channel extending from the top to the 
bottom of a coal seam.
    (4) Commingled coal means coal from different sources and/or types 
combined prior to shipment or use.
    (5) Core sample means a cylindrical sample of coal that represents 
the thickness of a coal seam penetrated by drilling according to ASTM 
standard D5192-91.
    (6) Correction factor means the difference between the equilibrium 
moisture and the inherent moisture in low rank coals for the purpose of 
Sec. 870.20(a).
    (7) Equilibrium moisture means the moisture in the coal as 
determined through ASTM standard D1412-93.
    (8) High-rank coals means anthracite, bituminous, and subbituminous 
A and B coals.
    (9) Low-rank coals means subbituminous C and lignite coals.
    (10) Slurry pond means any natural or artificial pond or lagoon used 
for the settlement and draining of the solids from the slurry resulting 
from the coal washing process.
    (11) Tipple coal means coal from a mine or loading facility that is 
ready for shipment.

[62 FR 60142, Nov. 6, 1997, as amended at 73 FR 67633, Nov. 14, 2008]



Sec. 870.19  How to calculate excess moisture in HIGH-rank coals.

    Here are the requirements for calculating the excess moisture in 
high-rank coals for a calendar quarter. ASTM standards D2234-89, 
Standard Test Methods for Collection of a Gross Sample of Coal; D3302-
91, Standard Test Method for Total Moisture in Coal; D5192-91, Standard 
Practice for Collection of Coal Samples from Core; D1412-93, Standard 
Test Method for Equilibrium Moisture of Coal at 96 to 97 Percent 
Relative Humidity and 30 [deg]C; and, D4596-93, Standard Practice for 
Collection of Channel Samples of Coal in a Mine are incorporated by 
reference as published in the 1994 Annual Book of ASTM Standards, Volume 
05.05. The Director of the Federal Register approved this incorporation 
by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Each 
applicable ASTM standard is incorporated as it exists on the date of the 
approval, and a notice of any change in it will be published in the 
Federal Register. You may obtain copies from the ASTM, 100 Barr Harbor 
Drive, West Conshohocken,

[[Page 419]]

Pennsylvania 19428. A copy of the ASTM standards is available for 
inspection at the Office of Surface Mining Reclamation and Enforcement, 
Administrative Record, Room 101, 1951 Constitution Avenue, NW., 
Washington, DC, or at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call 202-741-6030, or go to: http://www.archives.gov/federal--register/
code--of--federal--regulations/ibr--locations.html.
    (a)(1) Calculate the excess moisture percentage using one of these 
equations:
[GRAPHIC] [TIFF OMITTED] TR06NO97.000

    (2) EM equals excess moisture percentage. TM equals total as-shipped 
moisture percentage calculated according to Table 1 of this section. IM 
equals inherent moisture percentage calculated according to Table 2 of 
this section.
    (b) Multiply the excess moisture percentage by the tonnage from the 
bonafide sales, transfers of ownership, or uses by the operator during 
the quarter.
[GRAPHIC] [TIFF OMITTED] TR06NO97.001


[[Page 420]]


[GRAPHIC] [TIFF OMITTED] TR06NO97.002


[62 FR 60143, Nov. 6, 1997]



Sec. 870.20  How to calculate excess moisture in LOW-rank coals.

    Here are the requirements for calculating the excess moisture in 
low-rank coals for a calendar quarter. ASTM standards D2234-89, Standard 
Test Methods for Collection of a Gross Sample of Coal; D3302-91, 
Standard Test Method for Total Moisture in Coal; and, D1412-93, Standard 
Test Method for Equilibrium Moisture of Coal at 96 to 97 Percent 
Relative Humidity and 30 [deg]C are incorporated by reference as 
published in the 1994 Annual Book of ASTM Standards, Volume 05.05. The 
Director of the Federal Register approved this incorporation by 
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Each 
applicable ASTM standard is incorporated as it exists on the date of the 
approval, and a notice of any change in it will be published in the 
Federal Register. You may obtain copies from the ASTM, 100 Barr Harbor 
Drive, West Conshohocken, Pennsylvania 19428. A copy of the ASTM 
standards is available for inspection at the Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, Room 101, 1951 
Constitution Avenue, NW.,

[[Page 421]]

Washington, DC, or at the National Archives and Records Administration 
(NARA). For information on the availability of this material at NARA, 
call 202-741-6030, or go to: http://www.archives.gov/federal--register/
code--of--federal--regulations/ibr--locations.html.
    (a)(1) Calculate the excess moisture percentage using one of these 
equations:
[GRAPHIC] [TIFF OMITTED] TR06NO97.003

    (2) EM equals excess moisture percentage. TM equals total as-shipped 
moisture percentage calculated according to Table 1 of this section. IM 
equals inherent moisture percentage calculated according to Tables 2 and 
3 of this section.
    (b) Multiply the excess moisture percentage by the tonnage from the 
bona fide sales, transfers of ownership, or uses by the operator during 
the quarter.
[GRAPHIC] [TIFF OMITTED] TR06NO97.004


[[Page 422]]


[GRAPHIC] [TIFF OMITTED] TR06NO97.005

[GRAPHIC] [TIFF OMITTED] TR06NO97.006


[62 FR 60146, Nov. 6, 1997, as amended at 75 FR 60276, Sept. 29, 2010]



Sec. 870.21  Late payments.

    (a) Fee payments postmarked later than 30 days after the calendar 
quarter for which the fee was owed are subject to interest. Late 
reclamation fee payments are subject to interest at the rate established 
by the U.S. Department of the Treasury for late charges on payments to 
the Federal Government. The Treasury current value of funds rate is 
published annually in the Federal Register and on Treasury's Web site.
    (b) We will charge interest on unpaid reclamation fees from the 31st 
day following the end of the calendar quarter for which the fee payment 
is owed to the date of payment. If you are delinquent, we will bill you 
monthly and initiate whatever action is necessary

[[Page 423]]

to collect full payment of all fees and interest.
    (c) When a reclamation fee debt is more than 91 days overdue, a 6 
percent annual penalty on the amount owed for fees will begin and will 
run until the date of payment. This penalty is in addition to the 
interest described in paragraph (a) of this section.
    (d) For all delinquent fees, interest, and penalties, you must pay a 
processing and handling charge that we will set based upon the following 
components:
    (1) For debts referred to a collection agency, the amount charged to 
us by the collection agency;
    (2) For debts we processed and handled, a standard amount we set 
annually based upon similar charges by collection agencies for debt 
collection;
    (3) For debts referred to the Office of the Solicitor within the 
U.S. Department of the Interior, but paid before litigation, the 
estimated average cost to prepare the case for litigation as of the time 
of payment;
    (4) For debts referred to the Office of the Solicitor within the 
U.S. Department of the Interior, and litigated, the estimated cost to 
prepare and litigate a debt case as of the time of payment; and
    (5) If not otherwise provided for, all other administrative expenses 
associated with collection, including, but not limited to, billing, 
recording payments, and follow-up actions.
    (e) We will not charge prejudgment interest on any processing and 
handling charges.

[73 FR 67633, Nov. 14, 2008]



Sec. 870.22  Maintaining required production records.

    (a) If you engage in or conduct a surface coal mining operation, you 
must maintain up-to-date records that contain at least the following 
information:
    (1) The tons of coal you produced, bought, sold, or transferred, the 
amount of money you received per ton, the name of person to whom you 
sold or transferred the coal, and the date of each sale or transfer;
    (2) The tons of coal you used and your date of your consumption;
    (3) The tons of coal you stockpiled or inventoried that are not 
classified as sold for fee computation purposes under Sec. 870.12; and
    (4) For in situ coal mining operations, the total Btu value of gas 
you produced, the Btu value of a ton of coal in a place certified at 
least semiannually by an independent laboratory, and the amount of money 
you received for gas sold, transferred, or used.
    (b) We must have access to your records of any surface coal mining 
operation for review. Your records must be available to us at reasonable 
times.
    (c) We may inspect and copy any of your books or records that are 
necessary to substantiate the accuracy of your OSM-1 Form and payments. 
If the fee is paid at the maximum rate, we will not copy information 
relative to price. We will protect all copied information as authorized 
or required by the Privacy Act (5 U.S.C. 552a) and the Freedom of 
Information Act (5 U.S.C. 552).
    (d) You must maintain your books and records for 6 years from the 
end of the calendar quarter in which the fee was due or paid, whichever 
is later.
    (e) If you do not maintain or make available your books and records 
as required in this section, we will estimate the fee due under this 
part through use of average production figures based upon the nature and 
acreage of your coal mining operation.
    (1) We will assess the fee at the amount we estimate plus an 
additional 20 percent to account for possible error in our fee liability 
estimate.
    (2) After you receive our fee liability estimate, you may request 
that we revise that estimate based upon your information. However, you 
must demonstrate that our fee liability estimate is incorrect. You may 
do this by providing adequate documentation that we find to be 
acceptable and comparable to the information required in Sec. 
870.19(a).

[73 FR 67633, Nov. 14, 2008]



Sec. 870.23  Consequences of noncompliance.

    If you do not maintain adequate records, provide us with access to 
records of a surface coal mining operation, or pay overdue reclamation 
fees, including interest on late payments or

[[Page 424]]

underpayments, we may take one or more of the following actions:
    (a) Start a legal action against you;
    (b) Report you to the Internal Revenue Service;
    (c) Report you to State agencies responsible for taxation;
    (d) Report you to credit bureaus;
    (e) Refer you to collection agencies; or
    (f) Take some other appropriate action against you.

[73 FR 67633, Nov. 14, 2008]



PART 872_MONEYS AVAILABLE TO ELIGIBLE STATES AND INDIAN TRIBES--Table of 

Contents



Sec.
872.1 What does this Part do?
872.5 Definitions.
872.10 Information collection.
872.11 Where do moneys in the Fund come from?
872.12 Where do moneys distributed from the Fund and other sources go?
872.13 What moneys does OSM distribute each year?
872.14 What are State share funds?
872.15 How does OSM distribute and award State share funds?
872.16 Are there any restrictions on how States may use State share 
          funds?
872.17 What are Tribal share Funds?
872.18 How does OSM distribute and award Tribal share funds?
872.19 Are there any restrictions on how Indian tribes may use Tribal 
          share funds?
872.20 What will OSM do with unappropriated AML funds currently 
          allocated to the Rural Abandoned Mine Program?
872.21 What are historic coal funds?
872.22 How does OSM distribute and award historic coal funds?
872.23 Are there any restrictions on how you may use historic coal 
          funds?
872.24 What are Federal expense funds?
872.25 Are there any restrictions on how OSM may use Federal expense 
          funds?
872.26 What are minimum program make up funds?
872.27 How does OSM distribute and award minimum program make up funds?
872.28 Are there any restrictions on how you may use minimum program 
          make up funds?
872.29 What are prior balance replacement funds?
872.30 How does OSM distribute and award prior balance replacement 
          funds?
872.31 Are there any restrictions on how you may use prior balance 
          replacement funds?
872.32 What are certified in lieu funds?
872.33 How does OSM distribute and award certified in lieu funds?
872.34 Are there any restrictions on how you may use certified in lieu 
          funds?
872.35 When will OSM reduce the amount of prior balance replacement 
          funds or certified in lieu funds distributed to you?

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

    Source: 73 FR 67634, Nov. 14, 2008, unless otherwise noted.



Sec. 872.1  What does this part do?

    This part sets forth procedures and general responsibilities for 
managing funds received under Title IV of the Surface Mining Control and 
Reclamation Act of 1977, as amended.



Sec. 872.5  Definitions.

    As used in this part--
    Allocate means to identify moneys in our records at the time they 
are received by the Fund. The allocation process identifies moneys in 
the Fund by the type of funds collected, including the specific State or 
Indian tribal share.
    Award means to approve our grant agreement authorizing you to draw 
down and expend program funds.
    Distribute means to annually assign funds to a specific State or 
Indian tribe. After distribution, funds are available for award in a 
grant to that specific State or Indian tribe.
    Indian Abandoned Mine Reclamation Fund or Indian Fund means a 
separate fund that an Indian tribe established to account for moneys we 
award under parts 885 or 886 of this chapter or other moneys these 
regulations authorize to be deposited in the Indian Fund.
    Reclamation plan or State reclamation plan means a plan that a State 
or Indian tribe submitted and that we approved under section 405 of 
SMCRA and part 884 of this chapter.
    State Abandoned Mine Reclamation Fund or State Fund means a separate 
fund that a State established to account for moneys we award under parts 
885 or 886 of this chapter or other moneys these regulations authorize 
to be deposited in the State Fund.



Sec. 872.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and

[[Page 425]]

Budget (OMB) has approved the information collection requirements of 
part 872 and assigned it control number 1029-0054. The information is 
used to determine whether States and Indian tribes will be granted funds 
for reclamation activities. States and Indian tribes must respond to 
obtain a benefit in accordance with SMCRA. A Federal agency may not 
conduct or sponsor, and you are not required to respond to, a collection 
of information unless it displays a currently valid OMB control number.



Sec. 872.11  Where do moneys in the Fund come from?

    Revenue to the Fund includes--
    (a) Reclamation fees we collect under section 402 of SMCRA and part 
870 of this chapter;
    (b) Amounts we collect from charges for use of land acquired or 
reclaimed with moneys from the Fund under part 879 of this chapter;
    (c) Moneys we recover through satisfaction of liens filed against 
privately owned lands reclaimed with moneys from the Fund under part 882 
of this chapter;
    (d) Moneys we recover from the sale of lands acquired with moneys 
from the Fund or by donation;
    (e) Moneys donated to us for the purpose of abandoned mine land 
reclamation; and
    (f) Interest and any other income earned from investment of the 
Fund. We will credit interest and other income only to the Secretary's 
share.



Sec. 872.12  Where do moneys distributed from the Fund and other sources go?

    (a) Each State or Indian tribe with an approved reclamation plan 
must establish an account to be known as a State or Indian Abandoned 
Mine Reclamation Fund. These funds will be managed in accordance with 
the OMB Circular A-102.
    (b) Revenue for the State and Indian Abandoned Mine Reclamation 
Funds will include--
    (1) Amounts we granted for purposes of conducting the approved 
reclamation plan;
    (2) Moneys collected from charges for uses of land acquired or 
reclaimed with moneys from the State or Indian Abandoned Mine 
Reclamation Fund under part 879 of this chapter;
    (3) Moneys recovered through the satisfaction of liens filed against 
privately owned lands;
    (4) Moneys the State or Indian tribe recovered from the sale of 
lands acquired under Title IV of SMCRA; and
    (5) Such other moneys as the State or Indian tribe decides should be 
deposited in the State or Indian Abandoned Mine Reclamation Fund for use 
in carrying out the approved reclamation program.
    (c) Moneys deposited in State or Indian Abandoned Mine Reclamation 
Funds must be used to carry out the reclamation plan approved under part 
884 of this chapter and projects approved under Sec. 886.27 of this 
chapter.



Sec. 872.13  What moneys does OSM distribute each year?

    (a) Under Title IV of SMCRA, each Federal fiscal year we must 
distribute to you, the States and Indian tribes with approved 
reclamation plans, the moneys listed in this section. We distribute all 
Fund moneys and other moneys from the Treasury that have been designated 
for mandatory distribution. We provide information to you showing how we 
calculated your distribution. We distribute the following moneys:
    (1) State share funds to uncertified States as described in Sec. 
872.14;
    (2) Tribal share funds to uncertified Indian tribes as described in 
Sec. 872.17;
    (3) Historic coal funds to uncertified States and Indian tribes as 
described in Sec. 872.21;
    (4) Minimum program make up funds to eligible uncertified States and 
Indian tribes as described in Sec. 872.26;
    (5) Prior balance replacement funds to certified and uncertified 
States and Indian tribes as described in Sec. 872.29; and
    (6) Certified in lieu funds to certified States and Indian tribes as 
described in Sec. 872.32.
    (b) We calculate annual fee collections for coal produced in the 
previous Federal fiscal year on a net cash basis. This means that we use 
collections that are paid for the current Federal fiscal year to adjust 
fees that were

[[Page 426]]

overpaid or underpaid in prior fiscal years.
    (c) We distribute any Congressionally-appropriated funds for grants 
to you out of the Federal expense funds when the appropriation becomes 
available.
    (d) You may apply for any or all distributed funds at any time after 
the distribution using the procedures in part 885 of this chapter for 
certified States and Indian tribes or part 886 for uncertified States 
and Indian tribes.



Sec. 872.14  What are State share funds?

    ``State share funds'' are moneys we distribute to you from your 
State share of the Fund each Federal fiscal year under section 
402(g)(1)(A) of SMCRA. Your State share of the Fund is 50 percent of the 
reclamation fees we collected from within your State (excluding fees 
collected on Indian lands) and allocated to you, the State, in the Fund 
for coal produced in the previous fiscal year.



Sec. 872.15  How does OSM distribute and award State share funds?

    (a) To be eligible to receive State share funds, you must meet the 
following criteria:
    (1) You must have and maintain an approved reclamation plan under 
part 884 of this chapter; and
    (2) You cannot be certified under section 411(a) of SMCRA.
    (b) If you meet the eligibility requirements in paragraph (a) of 
this section, we will distribute and award these State share funds to 
you as follows:
    (1) We annually distribute State share funds to you as shown in the 
following table:

------------------------------------------------------------------------
                                              The amount of State share
For the Federal fiscal year(s) beginning .  funds we annually distribute
                    . .                         to you will be . . .
------------------------------------------------------------------------
(i) October 1, 2007 and October 1, 2008...  50 percent of your 50
                                             percent share of
                                             reclamation fees collected
                                             on prior fiscal year coal
                                             production.
(ii) October 1, 2009 and October 1, 2010..  75 percent of your 50
                                             percent share of
                                             reclamation fees collected
                                             on prior fiscal year coal
                                             production.
(iii) October 1, 2011 and continuing        100 percent of your 50
 through September 30, 2022.                 percent share of
                                             reclamation fees collected
                                             on prior fiscal year coal
                                             production.
(iv) October 1, 2022 (fiscal year 2023)...  The amount remaining in your
                                             State share of the Fund.
------------------------------------------------------------------------

    (2) We award these funds to you in grants according to the 
provisions of part 886 of this chapter.



Sec. 872.16  Are there any restrictions on how States may use State share 

funds?

    Yes. You may only use State share funds for:
    (a) Coal reclamation under Sec. 874.12 of this chapter;
    (b) Water supply restoration under Sec. 874.14 of this chapter;
    (c) Noncoal reclamation under Sec. 875.12 of this chapter that is 
requested under section 409(c) of SMCRA;
    (d) Deposit into an acid mine drainage abatement and treatment fund 
under part 876 of this chapter;
    (e) Land acquisition under Sec. 879.11 of this chapter; and
    (f) Maintenance of the AML inventory under section 403(c) of SMCRA.



Sec. 872.17  What are Tribal share funds?

    ``Tribal share funds'' are moneys we distribute to you from your 
Tribal share of the Fund each Federal fiscal year under section 
402(g)(1)(B) of SMCRA. Your Tribal share of the Fund is 50 percent of 
the reclamation fees we collected and allocated to you, the Indian 
tribe(s), in the Fund for coal produced in the previous fiscal year from 
the Indian lands in which you have an interest.



Sec. 872.18  How will OSM distribute and award Tribal share funds?

    (a) To be eligible to receive Tribal share funds, you must meet the 
following criteria:
    (1) You must have and maintain an approved reclamation plan under 
part 884 of this chapter; and
    (2) You cannot be certified under section 411(a) of SMCRA.
    (b) If you meet the eligibility requirements in paragraph (a) of 
this section, we will distribute and award these Tribal share funds to 
you as follows:

[[Page 427]]

    (1) We annually distribute Tribal share funds to you as shown in the 
following table:

------------------------------------------------------------------------
                                             The amount of Tribal share
For the Federal fiscal year(s) beginning .  funds we annually distribute
                    . .                         to you will be . . .
------------------------------------------------------------------------
(i) October 1, 2007 and October 1, 2008...  50 percent of your 50
                                             percent share of
                                             reclamation fees collected
                                             on prior fiscal year coal
                                             production.
(ii) October 1, 2009 and October 1, 2010..  75 percent of your 50
                                             percent share of
                                             reclamation fees collected
                                             on prior fiscal year coal
                                             production.
(iii) October 1, 2011 and continuing        100 percent of your 50
 through September 30, 2022.                 percent share of
                                             reclamation fees collected
                                             on prior fiscal year coal
                                             production.
(iv) October 1, 2022 (fiscal year 2023)...  The amount remaining in your
                                             Tribal share of the Fund.
------------------------------------------------------------------------

    (2) We award these funds to you in grants according to the 
provisions of part 886 of this chapter.



Sec. 872.19  Are there any restrictions on how Indian tribes may use Tribal 

share funds?

    Yes. You may only use Tribal share funds for:
    (a) Coal reclamation under Sec. 874.12 of this chapter;
    (b) Water supply restoration under Sec. 874.14 of this chapter;
    (c) Noncoal reclamation under Sec. 875.12 of this chapter that is 
requested under section 409(c) of SMCRA;
    (d) Deposit into an acid mine drainage abatement and treatment fund 
under part 876 of this chapter;
    (e) Land acquisition under Sec. 879.11 of this chapter; and
    (f) Maintenance of the AML inventory under section 403(c) of SMCRA.



Sec. 872.20  What will OSM do with unappropriated AML funds currently 

allocated to the Rural Abandoned Mine Program ?

    Under section 402(h)(4)(B) of SMCRA, we will make available any 
moneys that remain allocated to RAMP and that were not appropriated or 
moved to other allocations before December 20, 2006, for possible 
transfer to the three United Mine Workers of America (UMWA) health care 
plans described in section 402(h)(2) of SMCRA.



Sec. 872.21  What are historic coal funds?

    (a) ``Historic coal funds'' are moneys provided under section 
402(g)(5) of SMCRA based on the amount of coal produced before August 3, 
1977, in your State or on Indian lands in which you have an interest. 
Under the Surface Mining Control and Reclamation Act Amendments of 2006, 
which were enacted as Division C, Title II, Subtitle A of P.L. 109-432, 
each year we allocate and distribute 30 percent of annual AML fee 
collections for coal produced in the previous fiscal year plus 60 
percent of any other revenue to the Fund as historic coal funds to 
supplement grants to States and Indian tribes.
    (b) Historic coal funds also include moneys we reallocate under 
sections 401(f)(3)(A)(i), 411(h)(1)(A)(ii), and 411(h)(4) of SMCRA, 
including:
    (1) The moneys we reallocate based on prior balance replacement 
funds distributed under Sec. 872.29, which will be available to 
supplement grants beginning with Federal fiscal year 2023; and
    (2) The moneys we reallocate based on certified in lieu funds 
distributed under Sec. 872.32, which will be available to supplement 
grants in Federal fiscal years 2009 through 2022.



Sec. 872.22  How does OSM distribute and award historic coal funds?

    (a) To be eligible to receive historic coal funds, you must meet the 
following criteria:
    (1) You must have and maintain an approved reclamation plan under 
part 884 of this chapter;
    (2) You cannot be certified under section 411(a) of SMCRA; and
    (3) You must have unfunded Priority 1 and 2 coal problems remaining 
under sections 403(a)(1) and (2) of SMCRA.
    (b) If you meet the eligibility requirements in paragraph (a) of 
this section, we distribute these moneys to you using a formula based on 
the amount of coal historically produced before August 3, 1977, in your 
State or from the Indian lands concerned.
    (c) We annually distribute historic coal funds to you as shown in 
the following table:

[[Page 428]]



------------------------------------------------------------------------
                                             The amount of historic coal
For the Federal fiscal years beginning . .  funds we annually distribute
                     .                          to you will be . . .
------------------------------------------------------------------------
 (1) October 1, 2007 and October 1, 2008..  50 percent of the amount we
                                             calculate using the formula
                                             described in paragraph (b)
                                             of this section.
 (2) October 1, 2009 and October 1, 2010..  75 percent of the amount we
                                             calculated using the
                                             formula described in
                                             paragraph (b) of this
                                             section.
 (3) October 1, 2011 and continuing         100 percent of the amount we
 through September 30, 2022.                 calculate using the formula
                                             described in paragraph (b)
                                             of this section.
 (4) October 1, 2022 (fiscal year 2023),    100 percent of the amount we
 and thereafter.                             calculate using the formula
                                             described in paragraph (b)
                                             of this section until funds
                                             are no longer available or
                                             you have reclaimed your
                                             remaining Priority 1 and 2
                                             coal problems.
------------------------------------------------------------------------

    (d) In any given year, we will only distribute to you the historic 
coal funds that you need to reclaim your unfunded Priority 1 or 2 coal 
problems. Your distribution of State or Tribal share funds under Sec. 
872.14 or Sec. 872.17 plus your distribution of historic coal funds 
along with unused funds from prior allocations could be more than you 
need to reclaim your remaining high priority problems. If that occurs, 
we will reduce the historic coal funds we distribute to you to the 
amount that you need to fully fund reclamation of all your remaining 
Priority 1 or 2 coal problems.
    (e) We award these funds to you in grants according to the 
provisions of part 886 of this chapter.



Sec. 872.23  Are there any restrictions on how you may use historic coal 

funds?

    Yes. You may only use historic coal funds for:
    (a) Coal reclamation under Sec. 874.12 of this chapter;
    (b) Water supply restoration under Sec. 874.14 of this chapter;
    (c) Noncoal reclamation under Sec. 875.12 of this chapter that is 
requested under section 409(c) of SMCRA;
    (d) Deposit into an acid mine drainage abatement and treatment fund 
under part 876 of this chapter;
    (e) Land acquisition under Sec. 879.11 of this chapter; and
    (f) Maintenance of the AML inventory under section 403(c) of SMCRA.



Sec. 872.24  What are Federal expense funds?

    ``Federal expense funds'' are moneys available in the Fund that are 
not allocated or distributed as State share funds (Sec. 872.14), Tribal 
share funds (Sec. 872.17), historic coal funds (Sec. 872.21), or 
minimum program make up funds (Sec. 872.26). Congress must appropriate 
Federal expense funds before we may expend them.



Sec. 872.25  Are there any restrictions on how OSM may use Federal expense 

funds?

    (a) We may use Federal expense funds only for the purposes in 
sections 402(g)(3)(A) through (D) and 402(g)(4) of SMCRA, which include 
the following:
    (1) The Small Operator Assistance Program under section 507(c) of 
SMCRA (not more than $10 million annually);
    (2) Emergency projects under State, Tribal, and Federal programs 
under section 410 of SMCRA;
    (3) Nonemergency projects in States and on lands within the 
jurisdiction of Indian tribes that do not have an approved abandoned 
mine reclamation program under section 405 of SMCRA;
    (4) The Secretary's administration of Title IV of SMCRA and this 
subchapter; and
    (5) Projects authorized under section 402(g)(4) in States and on 
lands within the jurisdiction of Indian tribes that do not have an 
approved abandoned mine reclamation program under section 405 of SMCRA.
    (b) We will not deduct moneys that we have annually allocated or 
distributed as Federal expense funds under sections 402(g)(3)(A) through 
(D) or (4) of SMCRA for any State or Indian tribe from moneys we 
annually allocate or distribute to a State or Indian tribe under the 
authority of sections 402(g)(1) or (5) of SMCRA.
    (c) We expend moneys under the authority in section 402(g)(3)(C) of 
SMCRA only in States or on Indian lands where the State or Indian tribe 
does not have an abandoned mine reclamation program approved under 
section 405 of SMCRA.

[[Page 429]]



Sec. 872.26  What are minimum program make up funds?

    (a) ``Minimum program make up funds'' are additional moneys we 
distribute each Federal fiscal year to eligible States and Indian tribes 
to make up the difference between their total distribution of other 
funds and $3 million. The source of these funds is moneys in the 
Secretary's 20 percent share of the Fund that are authorized for 
mandatory distribution.
    (b) To be eligible to receive funds under this section, you must 
meet the following criteria:
    (1) You must have and maintain an approved reclamation plan under 
part 884 of this chapter;
    (2) You cannot have certified under section 411(a) of SMCRA;
    (3) The total amount you receive annually from State share funds 
(Sec. 872.14) or Tribal share funds (Sec. 872.17), historic coal funds 
(Sec. 872.21), and prior balance replacement funds (Sec. 872.29) must 
be less than $3 million; and
    (4) You must need more than the total of funds you will receive from 
State or Tribal share, historic coal, and prior balance replacement 
funds to reclaim Priority 1 and 2 coal problems under sections 403(a)(1) 
and (2) of SMCRA in your State or on Indian lands within your 
jurisdiction.
    (c) We will make funds available to the States of Missouri and 
Tennessee under this section to reclaim Priority 1 and 2 coal problems 
included in the AML inventory, provided each State has a reclamation 
plan approved under part 884 of this chapter.



Sec. 872.27  How does OSM distribute and award minimum program make up funds?

    (a) If you meet the eligibility requirements in Sec. 872.26(b), we 
will distribute these minimum program make up funds to you as follows:
    (1) We calculate your total distribution under this part by first 
adding, in order, your prior balance replacement funds distribution 
(Sec. 872.29), your applicable State or Tribal share funds distribution 
(Sec. 872.14 or Sec. 872.17), and your historic coal funds 
distribution (Sec. 872.21). If the sum of these funds is less than $3 
million, we calculate the amount of minimum program make up funds to add 
to your distribution under this section to increase it to that level.
    (2) For each of the Federal fiscal years 2007 through 2022, we add 
minimum program make up funds to your combined distribution of prior 
balance replacement, State or Tribal share, and historic coal funds as 
shown in the following table:

------------------------------------------------------------------------
                                                The amount of minimum
   For each of the Federal fiscal years     program make up funds we add
              beginning . . .               to your distribution will be
                                                        . . .
------------------------------------------------------------------------
(i) October 1, 2007 and October 1, 2008...  50 percent of the amount
                                             that we calculated should
                                             be added under paragraph
                                             (a)(1) of this section.
(ii) October 1, 2009 and October 1, 2010..  75 percent of the amount
                                             that we calculated should
                                             be added under paragraph
                                             (a)(1) of this section.
(iii) October 1, 2011 and continuing        100 percent of the amount
 through September 30, 2022.                 that we calculated should
                                             be added under paragraph
                                             (a)(1) of this section as
                                             long as you have at least
                                             $3 million of Priority 1
                                             and 2 coal problems
                                             remaining.
(iv) October 1, 2022 and thereafter.......  to the extent funds are
                                             available, 100 percent of
                                             the amount that we
                                             calculated should be added
                                             under paragraph (a)(1)
                                             until you have less than $3
                                             million of Priority 1 and 2
                                             coal problems remaining.
------------------------------------------------------------------------

    (b) We award these funds to you in grants according to the 
provisions of part 886 of this chapter.



Sec. 872.28  Are there any restrictions on how you may use minimum program 

make up funds?

    Yes. You may only use minimum program make up funds for:
    (a) Priority 1 and 2 coal reclamation under sections 403(a)(1) and 
(2) of SMCRA;
    (b) Priority 3 reclamation that is part of Priority 1 or 2 coal 
reclamation under sections 403(a)(1) or (2) of SMCRA and Sec. 874.13 of 
this chapter;



Sec. 872.29  What are prior balance replacement funds?

    ``Prior balance replacement funds'' are moneys we must distribute to 
you instead of the moneys we allocated to your State or Tribal share of 
the Fund before October 1, 2007, but did not distribute to you because 
Congress did not appropriate them. They come from general funds of the 
United States

[[Page 430]]

Treasury that are otherwise unappropriated. Under section 411(h)(1) of 
SMCRA, we distribute prior balance replacement funds to you, the State 
or Indian tribe, for seven years starting in the Federal fiscal year 
beginning October 1, 2008.



Sec. 872.30  How does OSM distribute and award prior balance replacement 

funds?

    (a) We distribute prior balance replacement funds to you as follows:
    (1) In an amount equal to the aggregate, unappropriated amount 
allocated to you before October 1, 2007, under sections 402(g)(1)(A) or 
(B) of SMCRA;
    (2) If you are, or are not, certified under section 411(a) of SMCRA; 
and
    (3) Subject to Sec. 872.35, in seven equal annual installments 
beginning with the 2008 Federal fiscal year which starts on October 1, 
2007.
    (b) We award these funds to you in grants according to the 
provisions of part 885 of this chapter for certified States and Indian 
tribes or part 886 of this chapter for uncertified States and Indian 
tribes.
    (c) At the same time we distribute prior balance replacement funds 
to you under this section, we transfer the same amount to historic coal 
funds from moneys in your State or Tribal share of the Fund that were 
allocated to you before October 1, 2007. The transferred funds will be 
available for annual grants under Sec. 872.21 for the Federal fiscal 
year beginning October 1, 2022, and annually thereafter. We will 
allocate, distribute, and award the transferred funds according to the 
provisions of Sec. Sec. 872.21, 872.22, and 872.23.



Sec. 872.31  Are there any restrictions on how you may use prior balance 

replacement funds?

    (a) Yes. If you are certified under section 411(a) of SMCRA, you may 
only use prior balance replacement funds for those purposes your State 
legislature or Tribal council establishes, giving priority to addressing 
the impacts of mineral development.
    (b) Yes. If you are not certified under section 411(a) of SMCRA, you 
may only use prior balance replacement funds for the purposes in section 
403 of SMCRA, which include:
    (1) Reclamation of coal problems under Sec. 874.12 of this chapter;
    (2) Water supply restoration under Sec. 874.14 of this chapter; and
    (3) Maintenance of the AML inventory.



Sec. 872.32  What are certified in lieu funds?

    ``Certified in lieu funds'' are moneys that we distribute to you, 
the certified State or Indian tribe, in lieu of moneys allocated to your 
State or Tribal share of the Fund after October 1, 2007. Certified in 
lieu funds come from general funds of the United States Treasury that 
are otherwise unappropriated. Beginning with the 2009 Federal fiscal 
year which starts on October 1, 2008, we distribute certified in lieu 
funds to you under section 411(h)(2) of SMCRA.



Sec. 872.33  How does OSM distribute and award certified in lieu funds?

    (a) You must be certified under section 411(a) of SMCRA to receive 
certified in lieu funds.
    (b) If you meet the eligibility requirement in paragraph (a) of this 
section, we distribute these certified in lieu funds to you as follows:
    (1) Starting in the Federal fiscal year that begins on October 1, 
2008, we annually distribute funds to you based on 50 percent of 
reclamation fees received for coal produced during the previous Federal 
fiscal year in your State or on Indian lands within your jurisdiction;
    (2) The funds we annually distribute to you are in lieu of moneys we 
otherwise would distribute to you from State share funds under Sec. 
872.14 or Tribal share funds under Sec. 872.17 had you not been 
excluded from receiving those funds under section 401(f)(3)(B) of SMCRA; 
and
    (3) Subject to Sec. 872.35, we annually distribute certified in 
lieu funds to you as shown in the following table:

------------------------------------------------------------------------
                                             The amount of certified in
In the Federal fiscal year(s) beginning on     lieu funds we annually
                   . . .                      distribute to you will be
                                                   equal to . . .
------------------------------------------------------------------------
(i) October 1, 2008.......................  25 percent of your 50
                                             percent share of annual
                                             reclamation fee
                                             collections.
(ii) October 1, 2009......................  50 percent of your 50
                                             percent share of annual
                                             reclamation fee
                                             collections.
(iii) October 1, 2010.....................  75 percent of your 50
                                             percent share of annual
                                             reclamation fee
                                             collections.

[[Page 431]]

 
(iv) October 1, 2011, and thereafter......  100 percent of your 50
                                             percent share of annual
                                             reclamation fee
                                             collections.
------------------------------------------------------------------------

    (c) We award these funds to you in grants according to the 
provisions of part 885 of this chapter.
    (d) At the same time we distribute certified in lieu funds to you 
under this section, we transfer the same amount to historic coal funds 
and make those funds available for annual grants under Sec. 872.21 that 
same Federal fiscal year. We allocate, distribute, and award the 
transferred funds according to the provisions of Sec. Sec. 872.21, 
872.22, and 872.23.
    (e) We will distribute to you the amounts we withhold under 
paragraph (b) of this section in two equal annual installments. We will 
do this in Federal fiscal years 2018 and 2019.



Sec. 872.34  Are there any restrictions on how you may use certified in lieu 

funds?

    There are no limitations or restrictions on the use of certified in 
lieu funds in the Surface Mining Control and Reclamation Act Amendments 
of 2006 which were enacted as Division C, Title II, Subtitle A of P.L. 
109-432.



Sec. 872.35  When will OSM reduce the amount of prior balance replacement 

funds or certified in lieu funds distributed to you?

    (a) In any fiscal year in which the amount of Treasury funds 
required to be transferred under Sec. Sec. 872.30 and 872.33 of this 
chapter and under section 402(i)(1) of SMCRA exceeds the maximum annual 
limit of $490 million, we will adjust the amount of these payments to 
reduce them to the level of the cap. Each distribution or transfer for 
the FY will be reduced by the same percentage.
    (b) We will not include amounts under section 402(h)(5)(A) as part 
of this calculation.



PART 873_FUTURE RECLAMATION SET-ASIDE PROGRAM--Table of Contents



Sec.
873.1 Scope.
873.11 Applicability.
873.12 Future set-aside program criteria.

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

    Source: 59 FR 28170, May 31, 1994, unless otherwise noted.



Sec. 873.1  Scope.

    This part provides requirements for the award of grants to States or 
Indian tribes for the establishment of special trust accounts that will 
provide funds for coal reclamation purposes after September 30, 1995.



Sec. 873.11  Applicability.

    The provisions of this part apply to funds awarded, as defined in 
Sec. 872.5 of this chapter, under section 402(g)(6)(A) of SMCRA before 
its amendment on December 20, 2006, and their use by the States or 
Indian tribes for coal reclamation purposes after September 30, 1995.

[73 FR 67638, Nov. 14, 2008]



Sec. 873.12  Future set-aside program criteria.

    (a) Any State or Indian tribe may receive and retain, without regard 
to the limitation referred to in section 402(g)(1)(D) of SMCRA, up to 10 
percent of the total of the funds distributed annually to such State or 
Indian tribe under sections 402(g)(1) and (5) of SMCRA for a future set-
aside fund if such amounts were awarded before December 20, 2006. The 
State or Indian tribe must deposit all set-aside funds awarded into a 
special fund established under State or Indian tribal law. The State or 
Indian tribe must expend amounts awarded (together with all interest 
earned on such amounts) solely to achieve the priorities stated in 
section 403(a) of SMCRA.
    (b) Moneys the State or Indian tribe deposited in the special fund 
account, together with any interest earned, are considered State or 
Indian tribal moneys.

[73 FR 67638, Nov. 14, 2008]



PART 874_GENERAL RECLAMATION REQUIREMENTS--Table of Contents



Sec.
874.1 Scope.
874.5 Definitions.
874.10 Information collection.

[[Page 432]]

874.11 Applicability.
874.12 Eligible coal lands and water.
874.13 Reclamation objectives and priorities.
874.14 Water supply restoration.
874.15 Limited liability.
874.16 Contractor eligibility.
874.17 AML agency procedures for reclamation projects receiving less 
          than 50 percent government funding.

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

    Source: 47 FR 28596, June 30, 1982, unless otherwise noted.



Sec. 874.1  Scope.

    This part establishes land and water eligibility requirements, 
reclamation objectives and priorities, and reclamation contractor 
responsibility.

[59 FR 28171, May 31, 1994]



Sec. 874.5  Definitions.

    As used in this Part--
    Reclamation plan or State reclamation plan means a plan that a State 
or Indian tribe submitted and that we approved under section 405 of 
SMCRA and part 884 of this chapter.

[73 FR 67638, Nov. 14, 2008]



Sec. 874.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
part 874 and assigned it control number 1029-0113. This information is 
used to ensure that appropriate reclamation projects involving the 
incidental extraction of coal are conducted under the authority of 
section 528(2) of SMCRA and that selected projects contain sufficient 
environmental safeguards. Persons must respond to obtain a benefit. A 
Federal agency may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

[73 FR 67639, Nov. 14, 2008]



Sec. 874.11  Applicability.

    You must comply with the requirements in this part for--
    (a) Reclamation projects using moneys from the Fund;
    (b) Reclamation projects using prior balance replacement funds 
provided to uncertified States and Indian tribes under Sec. 872.29 of 
this chapter; or
    (c) Coal reclamation projects by certified States and Indian tribes 
required to maintain certification under section 411(a) of SMCRA and the 
agreement required by Sec. Sec. 875.13(a)(3) and 875.14(b) of this 
chapter to maintain that certification.

[73 FR 67639, Nov. 14, 2008]



Sec. 874.12  Eligible coal lands and water.

    Coal lands and water are eligible for reclamation activities if--
    (a) They were mined for coal or affected by coal mining processes;
    (b) They were mined prior to August 3, 1977, and left or abandoned 
in either an unreclaimed or inadequately reclaimed condition; and
    (c) There is no continuing responsibility for reclamation by the 
operator, permittee, or agent of the permittee under statutes of the 
State or Federal government, or as a result of bond forfeiture. Bond 
forfeiture will render lands or water ineligible only if the amount 
forfeited is sufficient to pay the total cost of the necessary 
reclamation. In cases where the forfeited bond is insufficient to pay 
the total cost of reclamation, additional moneys from the Fund or any 
prior balance replacement funds provided under Sec. 872.29 of this 
chapter may be used.
    (d) Notwithstanding paragraphs (a), (b), and (c) of this section, 
coal lands and waters in a State or on Indian lands damaged and 
abandoned after August 3, 1977, by coal mining processes are also 
eligible for funding if the Secretary finds in writing that:
    (1) They were mined for coal or affected by coal mining processes; 
and
    (2) The mining occurred and the site was left in either an 
unreclaimed or inadequately reclaimed condition between August 4, 1977, 
and:
    (i) The date on which the Secretary approved a State regulatory 
program pursuant to section 503 of the Act (30 U.S.C. 1253) for a State 
or September 28, 1994, for an Indian tribe, and that any funds for 
reclamation or abatement that are available pursuant to a bond or other 
form of financial guarantee or from any other source are not sufficient 
to provide for adequate reclamation or abatement at the site; or

[[Page 433]]

    (ii) November 5, 1990, that the surety of the mining operator became 
insolvent during such period and that, as of November 5, 1990, funds 
immediately available from proceedings relating to such insolvency or 
from any financial guarantee or other source are not sufficient to 
provide for adequate reclamation or abatement at the site; and
    (3) The site qualifies as a priority 1 or 2 site pursuant to section 
403(a)(1) and (2) of the Act. Priority will be given to those sites that 
are in the immediate vicinity of a residential area or that have an 
adverse economic impact upon a community.
    (e) An uncertified State or Indian tribe may expend funds made 
available under paragraphs 402(g)(1) and (5) of SMCRA and prior balance 
replacement funds under section 411(h)(1) of SMCRA for the reclamation 
and abatement of any site eligible under paragraph (d) of this section, 
if the State or Indian tribe, with the concurrence of the Secretary, 
makes the findings required in paragraph (d) of this section and the 
State or Indian tribe determines that the reclamation priority of the 
site is the same or more urgent than the reclamation priority for the 
lands and water eligible under paragraphs (a), (b), or (c) of this 
section that qualify as a Priority 1 or 2 site under section 403(a) of 
SMCRA.
    (f) With respect to lands eligible under paragraph (d) or (e) of 
this section, moneys available from sources outside the Fund or that are 
ultimately recovered from responsible parties must either be used to 
offset the cost of the reclamation or transferred to the Fund if not 
required for further reclamation activities at the permitted site.
    (g) If reclamation of a site covered by an interim or permanent 
program permit is carried out under the Abandoned Mine Land Program, the 
permittee of the site shall reimburse the Abandoned Mine Land Fund for 
the cost of reclamation that is in excess of any bond forfeited to 
ensure reclamation. Neither the Secretary nor a State or Indian tribe 
performing reclamation under paragraph (d) or (e) of this section shall 
be held liable for any violations of any performance standards or 
reclamation requirements specified in Title V of the Act nor shall a 
reclamation activity undertaken on such lands or waters be held to any 
standards set forth in Title V of the Act.
    (h) Surface coal mining operations on lands eligible for remining 
pursuant to section 404 of the Act shall not affect the eligibility of 
such lands for reclamation activities after the release of the bonds or 
deposits posted by any such operation as provided by Sec. 800.40 of 
this chapter. If the bond or deposit for a surface coal mining operation 
on lands eligible for remining is forfeited, funds available under this 
title may be used if the amount of such bond or deposit is not 
sufficient to provide for adequate reclamation or abatement, except that 
if conditions warrant the Secretary shall immediately exercise his/her 
authority under section 410 of the Act.

[47 FR 28596, June 30, 1982, as amended at 59 FR 28171, May 31, 1994; 73 
FR 67639, Nov. 14, 2008]



Sec. 874.13  Reclamation objectives and priorities.

    (a) When you conduct reclamation projects under this part you may 
follow OSM's ``Final Guidelines for Reclamation Programs and Projects'' 
(66 FR 31250, June 11, 2001) and the expenditures must reflect the 
following priorities in the order stated:
    (1) Priority 1: The protection of public health, safety, and 
property from extreme danger of adverse effects of coal mining 
practices, including the restoration of land and water resources and the 
environment that:
    (i) Have been degraded by the adverse effects of coal mining 
practices; and
    (ii) Are adjacent to a site that has been or will be addressed to 
protect the public health, safety, and property from extreme danger of 
adverse effects of coal mining practices.
    (2) Priority 2: The protection of public health and safety from 
adverse effects of coal mining practices, including the restoration of 
land and water resources and the environment that:
    (i) Have been degraded by the adverse effects of coal mining 
practices; and
    (ii) Are adjacent to a site that has been or will be addressed to 
protect the public health and safety from adverse effects of coal mining 
practices.

[[Page 434]]

    (3) Priority 3: The restoration of land and water resources and the 
environment previously degraded by adverse effects of coal mining 
practices, including measures for the conservation and development of 
soil, water (excluding channelization), woodland, fish and wildlife, 
recreation resources, and agricultural productivity. Priority 3 land and 
water resources that are geographically contiguous with existing or 
remediated Priority 1 or 2 problems will be considered adjacent under 
paragraphs (a)(1)(ii) or (a)(2)(ii) of this section.
    (b) This paragraph applies to State or Tribal share funds available 
under Sec. Sec. 872.14 and 872.17 of this chapter and historic coal 
funds available under Sec. 872.21 of this chapter. You may expend these 
funds to reclaim Priority 3 lands and waters, if either of the following 
conditions applies:
    (1) You have completed all of the Priority 1 and Priority 2 
reclamation in the jurisdiction of your State or Indian tribe; or
    (2) The expenditure for Priority 3 reclamation is made in 
conjunction with the expenditure of funds for Priority 1 or Priority 2 
reclamation projects including past, current, and future Priority 1 or 
Priority 2 reclamation projects. Expenditures under this paragraph must 
either:
    (i) Facilitate the Priority 1 or Priority 2 reclamation; or
    (ii) Provide reasonable savings towards the objective of reclaiming 
all Priority 3 land and water problems within the jurisdiction of your 
State or Indian tribe.

[73 FR 67639, Nov. 14, 2008]



Sec. 874.14  Water supply restoration.

    (a) Any State or Indian tribe that has not certified completion of 
all coal-related reclamation under section 411(a) of SMCRA may expend 
funds under Sec. Sec. 872.16, 872.19, 872.23, and 872.31 of this 
chapter for water supply restoration projects. For purposes of this 
section, ``water supply restoration projects'' are those that protect, 
repair, replace, construct, or enhance facilities related to water 
supplies, including water distribution facilities and treatment plants 
that have been adversely affected by coal mining practices. For funds 
awarded before December 20, 2006, any uncertified State or Indian tribe 
may expend up to 30 percent of the funds distributed to it for water 
supply restoration projects.
    (b) If the adverse effect on water supplies referred to in this 
section occurred both prior to and after August 3, 1977, the project 
shall remain eligible, notwithstanding the criteria specified in 30 CFR 
874.12(b), if the State or Indian tribe finds in writing, as part of its 
eligibility opinion, that such adverse affects are due predominately to 
effects of mining processes undertaken and abandoned prior to August 3, 
1977.
    (c) If the adverse effect on water supplies referred to in this 
section occurred both prior to and after the dates (and under the 
criteria) set forth under section 402(g)(4)(B) of the Act, the project 
shall remain eligible, notwithstanding the criteria specified in 30 CFR 
874.12(b), if the State or Indian tribe finds in writing, as part of its 
eligibility opinion, that such adverse effects are due predominately to 
the effects of mining processes undertaken and abandoned prior to those 
dates.
    (d) Enhancement of facilities or utilities under this section shall 
include upgrading necessary to meet any local, State, or Federal public 
health or safety requirement. Enhancement shall not include, however, 
any service area expansion of a utility or facility not necessary to 
address a specific abandoned mine land problem.

[59 FR 28171, May 31, 1994, as amended at 73 FR 67639, Nov. 14, 2008]



Sec. 874.15  Limited liability.

    No State or Indian tribe shall be liable under any provision of 
Federal law for any costs or damages as a result of action taken or 
omitted in the course of carrying out an approved State or Indian tribe 
abandoned mine reclamation plan. This section shall not preclude 
liability for costs or damages as a result of gross negligence or 
intentional misconduct by the State or Indian tribe. For purposes of 
this section, reckless, willful, or wanton misconduct shall constitute 
gross negligence or intentional misconduct.

[59 FR 28172, May 31, 1994]

[[Page 435]]



Sec. 874.16  Contractor eligibility.

    To receive moneys from the Fund or Treasury funds provided to 
uncertified States and Indian tribes under Sec. 872.29 of this chapter 
or to certified States or Indian tribes for coal AML reclamation as 
required to maintain certification under section 411(a) of SMCRA, every 
successful bidder for an AML contract must be eligible under Sec. Sec. 
773.12, 773.13, and 773.14 of this chapter at the time of contract award 
to receive a permit or be provisionally issued a permit to conduct 
surface coal mining operations.

[73 FR 67639, Nov. 14, 2008]



Sec. 874.17  AML agency procedures for reclamation projects receiving less 

than 50 percent government funding.

    This section tells you, the AML agency, what to do when considering 
an abandoned mine land reclamation project as government-financed 
construction under part 707 of this chapter. This section only applies 
if the level of funding for the construction will be less than 50 
percent of the total cost because of planned coal extraction.
    (a) Consultation with the Title V regulatory authority. In 
consultation with the Title V regulatory authority, you must make the 
following determinations:
    (1) You must determine the likelihood of the coal being mined under 
a Title V permit. This determination must take into account available 
information such as:
    (i) Coal reserves from existing mine maps or other sources;
    (ii) Existing environmental conditions;
    (iii) All prior mining activity on or adjacent to the site;
    (iv) Current and historic coal production in the area; and
    (v) Any known or anticipated interest in mining the site.
    (2) You must determine the likelihood that nearby or adjacent mining 
activities might create new environmental problems or adversely affect 
existing environmental problems at the site.
    (3) You must determine the likelihood that reclamation activities at 
the site might adversely affect nearby or adjacent mining activities.
    (b) Concurrence with the Title V regulatory authority. If, after 
consulting with the Title V regulatory authority, you decide to proceed 
with the reclamation project, then you and the Title V regulatory 
authority must concur in the following determinations:
    (1) You must concur in a determination of the limits on any coal 
refuse, coal waste, or other coal deposits which can be extracted under 
the part 707 exemption or counterpart State/Indian Tribe laws and 
regulations.
    (2) You must concur in the delineation of the boundaries of the AML 
project.
    (c) Documentation. You must include in the AML case file:
    (1) The determinations made under paragraphs (a) and (b) of this 
section;
    (2) The information taken into account in making the determinations; 
and
    (3) The names of the parties making the determinations.
    (d) Special requirements. For each project, you must:
    (1) Characterize the site in terms of mine drainage, active slides 
and slide-prone areas, erosion and sedimentation, vegetation, toxic 
materials, and hydrologic balance;
    (2) Ensure that the reclamation project is conducted in accordance 
with the provisions of 30 CFR subchapter R;
    (3) Develop specific-site reclamation requirements, including 
performance bonds when appropriate in accordance with State procedures; 
and
    (4) Require the contractor conducting the reclamation to provide 
prior to the time reclamation begins applicable documents that clearly 
authorize the extraction of coal and payment of royalties.
    (e) Limitation. If the reclamation contractor extracts coal beyond 
the limits of the incidental coal specified in paragraph (b)(1) of this 
section, the contractor must obtain a permit under Title V of SMCRA for 
such coal.

[64 FR 7483, Feb. 12, 1999]

[[Page 436]]



PART 875_CERTIFICATION AND NONCOAL RECLAMATION--Table of Contents



Sec.
875.1 Scope.
875.5 Definitions.
875.10 Information collection.
875.11 Applicability.
875.12 Eligible lands and water prior to certification.
875.13 Certification of completion of coal sites.
875.14 Eligible lands and water after certification.
875.15 Reclamation priorities for noncoal program.
875.16 Exclusion of certain noncoal reclamation sites.
875.17 Land acquisition authority--noncoal.
875.18 Lien requirements.
875.19 Limited liability.
875.20 Contractor eligibility.

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

    Source: 47 FR 28596, June 30, 1982, unless otherwise noted.



Sec. 875.1  Scope.

    This part establishes land and water eligibility requirements and 
for noncoal reclamation.



Sec. 875.5  Definitions.

    As used in this Part--
    Reclamation plan or State reclamation plan means a plan that a State 
or Indian tribe submitted and that we approved under section 405 of 
SMCRA and part 884 of this chapter.

[73 FR 67640, Nov. 14, 2008]



Sec. 875.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
part 875 and assigned it control number 1029-0103. This information 
establishes procedures and requirements for State and Indian tribes to 
conduct noncoal reclamation under abandoned mine land funding. The 
information is needed to assure compliance with SMCRA and the Omnibus 
Budget Reconciliation Act of 1990. Persons must respond to obtain a 
benefit. A Federal agency may not conduct or sponsor, and you are not 
required to respond to, a collection of information unless it displays a 
currently valid OMB control number.

[73 FR 67640, Nov. 14, 2008]



Sec. 875.11  Applicability.

    (a) If you are a State or Indian tribe that has not certified under 
section 411(a) of SMCRA, you must follow these noncoal reclamation 
requirements when you use State share funds under Sec. 872.16, Tribal 
share funds under Sec. 872.19, or historic coal funds under Sec. 
872.23 to conduct reclamation projects on lands or water affected by 
mining of minerals and materials other than coal.
    (b) If you are a State or Indian tribe that has certified under 
section 411(a) of SMCRA:
    (1) you must use State or Tribal share funds distributed to you 
under section 402(g)(1) of SMCRA before October 1, 2007 in accordance 
with this part; and
    (2) you may use prior balance replacement funds distributed to you 
under section 411(h)(1) of SMCRA, certified in lieu funds distributed to 
you under section 411(h)(2), or both to maintain certification as 
required by Sec. Sec. 875.13 and 875.14. The noncoal reclamation 
requirements of this part do not apply to the use of prior balance 
replacement funds or certified in lieu funds.

[73 FR 67640, Nov. 14, 2008]



Sec. 875.12  Eligible lands and water prior to certification.

    Noncoal lands and water are eligible for reclamation if:
    (a) They were mined or affected by mining processes;
    (b) They were mined and left or abandoned in either an unreclaimed 
or inadequately reclaimed condition prior to August 3, 1977;
    (c) There is no continuing responsibility for reclamation by the 
operator, permittee, or agent of the permittee under statutes of the 
State or Federal Government or by the State as a result of bond 
forfeiture. Bond forfeiture will render lands or water ineligible only 
if the amount forfeited is sufficient to pay the total cost of the 
necessary reclamation. In cases where the forfeited bond is insufficient 
to pay the total

[[Page 437]]

cost of reclamation, moneys sufficient to complete the reclamation may 
be sought under part 886 of this chapter;
    (d) The reclamation has been requested by the Governor of the State 
or equivalent head of the Indian tribe; and
    (e) The reclamation is necessary to protect the public health, 
safety, general welfare, and property from extreme danger of adverse 
effects of noncoal mining practices.

[59 FR 28172, May 31, 1994, as amended at 73 FR 67640, Nov. 14, 2008]



Sec. 875.13  Certification of completion of coal sites.

    (a) The Governor of a State, or the equivalent head of an Indian 
tribe, may submit to the Secretary a certification of completion of coal 
sites. The certification must express the finding that the State or 
Indian tribe has achieved all existing known coal-related reclamation 
objectives for eligible lands and waters under section 404 of SMCRA or 
has instituted the necessary processes to reclaim any remaining coal 
related problems. In addition to the above finding, the certification of 
completion must contain:
    (1) A description of both the rationale and the process used to 
arrive at the above finding for the completion of all coal-related 
reclamation under section 403(a)(1) through (3).
    (2) A brief summary and resolution of all relevant public comments 
concerning coal-related impacts, problems, and reclamation projects 
received by the State or Indian tribe prior to preparation of the 
certification of completion.
    (3) A State or Indian tribe agreement to acknowledge and give top 
priority to any coal-related problem(s) that may be found or occur after 
submission of the certification of completion and during the life of the 
approved abandoned mine reclamation program.
    (b) After review and verification of the information contained in 
the certification of completion, the Director shall provide notice in 
the Federal Register and opportunity for public comment. After receipt 
and evaluation of all public comments and a determination by the 
Director that the certification is correct, the Director shall concur 
with the certification and provide final notice of such concurrence in 
the Federal Register. This concurrence shall be based upon the State's 
or Indian tribes commitment to give top priority to any coal problem 
which may thereafter be found or occur.
    (c) Following concurrence by the Director, a State or Indian tribe 
may implement a noncoal reclamation program pursuant to provisions in 
section 411 of SMCRA.
    (d) The Director may, on his or her own initiative, make the 
certification referred to in paragraph (a) of this section on behalf of 
your State or Indian tribe if:
    (1) Based upon information contained in the AML inventory, the 
Director determines that all coal reclamation projects meeting the 
priorities described in Sec. 874.13(a) of this chapter in the 
jurisdiction of your State or Indian tribe have been completed; and
    (2) Before making any determination, the Director provides the 
public an opportunity to comment through a notice in the Federal 
Register.

[59 FR 28172, May 31, 1994, as amended at 73 FR 67640, Nov. 14, 2008]



Sec. 875.14  Eligible lands and water after certification.

    (a) Following certification, eligible noncoal lands, waters, and 
facilities are those--
    (1) Which were mined or processed for minerals or which were 
affected by such mining or processing, and abandoned or left in an 
inadequate reclamation status before August 3, 1977. However, for 
Federal lands, waters, and facilities under the jurisdiction of the 
Forest Service, the eligibility date is August 28, 1974. For Federal 
lands, waters and facilities under the jurisdiction of the Bureau of 
Land Management, the eligibility date is November 26, 1980; and
    (2) For which there is no continuing reclamation responsibility 
under State or other Federal laws.
    (b) If eligible coal problems are found or occur after 
certification, you must submit to us a plan that describes the approach 
and funds that will be used to address those problems in a timely 
manner. You may address any eligible coal problems with the certified in 
lieu

[[Page 438]]

funds that you have already received or will receive from Sec. 872.32 
of this chapter. You may also use the prior balance replacement funds 
received from Sec. 872.29 of this chapter to address coal problems 
subsequent to certification. Any coal reclamation projects that you do 
must conform to sections 401 through 410 of SMCRA and part 874 of this 
chapter.

[73 FR 67640, Nov. 14, 2008]



Sec. 875.15  Reclamation priorities for noncoal program.

    (a) This section applies to reclamation projects involving the 
restoration of lands and water adversely affected by past mineral 
mining; projects involving the protection, repair, replacement, 
construction, or enhancement of utilities (such as those relating to 
water supply, roads, and other such facilities serving the public 
adversely affected by mineral mining and processing practices); and the 
construction of public facilities in communities impacted by coal or 
other mineral mining and processing practices.
    (b) Following certification pursuant to Sec. 875.13, the projects 
and construction of public facilities identified in paragraph (a) of 
this section shall reflect the following priorities in the order stated:
    (1) The protection of public health, safety, general welfare and 
property from the extreme danger of adverse effects of mineral mining 
and processing practices;
    (2) The protection of public health, safety, and general welfare 
from the adverse effects of mineral mining and processing practices; and
    (3) The restoration of land and water resources and the environment 
previously degraded by the adverse effects of mineral mining and 
processing practices.
    (c) Enhancement of facilities or utilities shall include upgrading 
necessary to meet local, State, or Federal public health or safety 
requirements. Enhancement shall not include, however, any service area 
expansion of a utility or facility not necessary to address a specific 
abandoned mine land problem.
    (d) Notwithstanding the requirements specified in paragraph (b) of 
this section, where the Governor of a State or the equivalent head of an 
Indian tribe, after determining that there is a need for activities or 
construction of specific public facilities related to the coal or 
minerals industry in States or on Tribal lands impacted by coal or 
minerals development, submits a grant application as required by 
paragraph (e) of this section and the Director concurs in such need, as 
set forth in paragraph (f) of this section, the Director may grant funds 
made available under section 402(g)(1) of the Act, 30 U.S.C. 1232, to 
carry out such activities or construction.
    (e) To qualify for funding pursuant to the authority in paragraph 
(d) of this section, a State or Indian tribe must submit a grant 
application that specifically sets forth:
    (1) The need or urgency for the activity or the construction of the 
public facility;
    (2) The expected impact the project will have on the coal or 
minerals industry in the State or Indian tribe;
    (3) The availability of funding from other sources and, if other 
funding is provided, its percentage of the total costs involved;
    (4) Documentation from other local, State, and Federal agencies with 
oversight for such utilities or facilities regarding what funding 
resources they have available and why this specific project is not being 
fully funded by their agency;
    (5) The impact on the State or Indian tribe, the public, and the 
minerals industry if the activity or facility is not funded;
    (6) The reason why this project should be selected before a priority 
project relating to the protection of the public health and safety or 
the environment from the damages caused by past mining activities; and
    (7) An analysis and review of the procedures used by the State or 
Indian tribe to notify and involve the public in this funding request 
and a copy of all comments received and their resolution by the State or 
Indian tribe.
    (f) After review of the information contained in the application, 
the Director will, if necessary to ensure adequate public notification, 
prepare a Federal Register notice regarding

[[Page 439]]

the State's or Indian Tribe's submission and provide for public comment. 
The Director will then:
    (1) Evaluate any comments received;
    (2) Determine whether the funding meets the requirements of this 
part;
    (3) Determine whether the funding is in the best interest of the 
State or Indian tribe AML program;
    (4) If the determinations under paragraphs (f)(2) and (f)(3) of this 
section are positive, approve the request for funding the activity or 
construction; and
    (5) Approve funding under paragraph (f)(4) of this section only at a 
cost commensurate with its benefits towards achieving the purposes of 
the Surface Mining Control and Reclamation Act of 1977.

[59 FR 28173, May 31, 1994, as amended at 68 FR 9502, Feb. 27, 2003]



Sec. 875.16  Exclusion of certain noncoal reclamation sites.

    (a) You, the uncertified State or Indian tribe, may not use moneys 
from the Fund or from prior balance replacement funds provided under 
Sec. 872.29 of this chapter for the reclamation of sites and areas 
designated for remedial action under the Uranium Mill Tailings Radiation 
Control Act of 1978 (42 U.S.C. 7901 et seq.) or that have been listed 
for remedial action under the Comprehensive Environmental Response 
Compensation and Liability Act of 1980 (42 U.S.C. 9601 et seq.).
    (b) You, the certified State or Indian tribe, may not use moneys 
distributed from the Fund under section 402(g)(1) of SMCRA for the 
reclamation of sites and areas designated for remedial action under the 
Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et 
seq.) or that have been listed for remedial action under the 
Comprehensive Environmental Response Compensation and Liability Act of 
1980 (42 U.S.C. 9601 et seq.).

[73 FR 67640, Nov. 14, 2008]



Sec. 875.17  Land acquisition authority--noncoal.

    The requirements specified in parts 877 (Rights of Entry) and 879 
(Acquisition, Management and Disposition of Lands and Water) shall apply 
to a State's or Indian tribe's noncoal program except that, for purposes 
of this section, the references to coal shall not apply. In lieu of the 
term coal, the word noncoal should be used.

[59 FR 28173, May 31, 1994]



Sec. 875.18  Lien requirements.

    The lien requirements found in part 882--Reclamation on Private Land 
shall apply to a State's or Indian tribe's noncoal reclamation program 
under section 411 of the Act, except that for purposes of this section, 
references made to coal shall not apply. In lieu of the term coal, the 
word noncoal should be used.

[59 FR 28173, May 31, 1994]



Sec. 875.19  Limited liability.

    No State or Indian tribe shall be liable under any provision of 
Federal law for any costs or damages as a result of action taken or 
omitted in the course of carrying out an approved State or Indian tribe 
abandoned mine reclamation plan. This section shall not preclude 
liability for costs or damages as a result of gross negligence or 
intentional misconduct by the State or Indian tribe. For purposes of the 
preceding sentence, reckless, willful, or wanton misconduct shall 
constitute gross negligence or intentional misconduct.

[59 FR 28173, May 31, 1994]



Sec. 875.20  Contractor eligibility.

    Every successful bidder for any contract by an uncertified State or 
Indian tribe under this part, or for a contract by a certified State or 
Indian tribe to undertake noncoal reclamation using moneys distributed 
from the Fund under section 402(g)(1) of SMCRA, must be eligible under 
Sec. Sec. 773.12, 773.13, and 773.14 of this chapter at the time of 
contract award to receive a permit or be provisionally issued a permit 
to conduct surface coal mining operations. This section does not apply 
to any contract by a certified State or Indian tribe that is not for 
coal reclamation.

[73 FR 67641, Nov. 14, 2008]

[[Page 440]]



PART 876_ACID MINE DRAINAGE TREATMENT AND ABATEMENT PROGRAM--Table of Contents



Sec.
876.1 Scope.
876.10 Information collection.
876.12 Eligibility.

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

    Source: 59 FR 28174, May 31, 1994, unless otherwise noted.



Sec. 876.1  Scope.

    This part establishes the requirements and procedures for the 
preparation, submission and approval of State or Indian tribe Acid Mine 
Drainage Treatment and Abatement Programs.



Sec. 876.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
part 876 and assigned it control number 1029-0104. OSM will use the 
information to determine if the State's or Indian tribe's Acid Mine 
Drainage Abatement and Treatment Programs is in compliance with 
legislative mandate. States and Indian tribes are required to respond to 
obtain a benefit in accordance with SMCRA. A Federal agency may not 
conduct or sponsor, and you are not required to respond to, a collection 
of information unless it displays a currently valid OMB control number.

[73 FR 67641, Nov. 14, 2008]



Sec. 876.12  Eligibility.

    (a) Beginning December 20, 2006, any uncertified State or Indian 
tribe having an approved reclamation program may receive and retain, 
without regard to the limitation in section 402(g)(1)(D) of SMCRA, up to 
30 percent of the total of the funds distributed annually to that State 
or Indian tribe under section 402(g)(1) of SMCRA (State or Tribal share) 
and section 402(g)(5) of SMCRA (historic coal funds). For funds awarded 
before December 20, 2006, any uncertified State or Indian tribe may 
retain up to 10 percent of the funds distributed to it for an acid mine 
drainage fund. All amounts set aside under this section must be 
deposited into an acid mine drainage abatement and treatment fund 
established under State or Indian tribal law.
    (b) Before depositing funds under this part, an uncertified State or 
Indian tribe must:
    (1) Establish a special fund account providing for the earning of 
interest on fund balances; and
    (2) Specify that moneys in the account may only be used for the 
abatement of the causes and treatment of the effects of acid mine 
drainage in a comprehensive manner within qualified hydrologic units (as 
defined in paragraph (c) of this section) affected by coal mining 
practices.
    (c) As used in paragraph (b) of this section, ``qualified hydrologic 
unit'' means a hydrologic unit:
    (1) In which the water quality has been significantly affected by 
acid mine drainage from coal mining practices in a manner that adversely 
impacts biological resources; and
    (2) That contains lands and waters that are:
    (i) Eligible under section 404 of SMCRA and include any of the 
priorities described in section 403(a) of SMCRA; and
    (ii) The subject of the expenditure from the forfeiture of a bond 
required under section 509 of SMCRA or from other State sources to abate 
and treat acid mine drainage.
    (d) After the conditions specified in paragraphs (a) and (b) of this 
section are met, OSM may approve a grant and the State or Indian tribe 
may deposit moneys into the special fund account. The moneys so 
deposited, together with any interest earned, must be considered State 
or Indian tribal moneys.

[73 FR 67641, Nov. 14, 2008]



PART 877_RIGHTS OF ENTRY--Table of Contents



Sec.
877.1 Scope.
877.10 Information collection.
877.11 Written consent for entry.
877.13 Entry and consent to reclaim.
877.14 Entry for emergency reclamation.

    Authority: Secs. 201(c), 407 (a) and (b), 410, and 412(a), Pub. L. 
95-87, 91 Stat. 449, 462, 463, and 466 (30 U.S.C. 1211, 1237, 1240, and 
1242).

    Source: 47 FR 28597, June 30, 1982, unless otherwise noted.

[[Page 441]]



Sec. 877.1  Scope.

    This part establishes procedures for entry upon lands or property by 
OSM, States, and Indian tribes for reclamation purposes.



Sec. 877.10  Information collection.

    The information collection requirements contained in Sec. Sec. 
877.11 and 877.13(b) were approved by the Office of Management and 
Budget (OMB) under 44 U.S.C. 3507 and assigned clearance number 1029-
0055. This information is being collected to meet the mandate of section 
407 of the Act, which provides that States or Indian tribes, pursuant to 
an approved reclamation program, may use the police power, if necessary, 
to effect entry upon private lands to conduct reclamation activities or 
exploratory studies if the landowner's consent is refused or the 
landowner is not available.
    This information will be used by the regulatory authority to ensure 
that the State/Indian tribe has sufficient programmatic capability to 
conduct reclamation activities on private lands. The obligation to 
respond is mandatory.



Sec. 877.11  Written consent for entry.

    Written consent from the owner of record and lessee, or their 
authorized agents, is the preferred means for obtaining agreements to 
enter lands in order to carry out reclamation activities. Nonconsensual 
entry by exercise of the police power will be undertaken only after 
reasonable efforts have been made to obtain written consent.



Sec. 877.13  Entry and consent to reclaim.

    (a) OSM, the State, or Indian tribe or its agents, employees, or 
contractors may enter upon land to perform reclamation activities or 
conduct studies or exploratory work to determine the existence of the 
adverse effects of past coal mining if consent from the owner is 
obtained.
    (b) If consent is not obtained, then, prior to entry under this 
section, the OSM, State, or Indian tribe shall find in writing, with 
supporting reasons that--
    (1) Land or water resources have been or may be adversely affected 
by past coal mining practices;
    (2) The adverse effects are at a state where, in the interest of the 
public health, safety, or the general welfare, action to restore, 
reclaim, abate, control, or prevent should be taken; and
    (3) The owner of the land or water resources where entry must be 
made to restore, reclaim, abate, control, or prevent the adverse effects 
of past coal mining practices is not known or readily available, or the 
owner will not give permission for OSM, State, or Indian tribe or its 
agents, employees, or contractors to enter upon such property to 
restore, reclaim, abate, control, or prevent the effects of past coal 
mining practices.
    (c) If consent is not obtained, OSM, State, or Indian tribe shall 
give notice of its intent to enter for purposes of conducting 
reclamation at least 30 days before entry upon the property. The notice 
shall be in writing and shall be mailed, return receipt requested, to 
the owner, if known, with a copy of the findings required by this 
section. If the owner is not known, or if the current mailing address of 
the owner is not known, notice shall be posted in one or more places on 
the property to be entered where it is readily visible to the public and 
advertised once in a newspaper of general circulation in the locality in 
which the land is located. The notice posted on the property and 
advertised in the newspaper shall include a statement of where the 
findings required by this section may be inspected or obtained.



Sec. 877.14  Entry for emergency reclamation.

    (a) OSM, its agents, employees, or contractors shall have the right 
to enter upon any land where an emergency exists and on any other land 
to have access to the land where the emergency exists to restore, 
reclaim, abate, control, or prevent the adverse effects of coal mining 
practices and to do all things necessary to protect the public health, 
safety, or general welfare.
    (b) Prior to entry under this section, OSM shall make a written 
finding with supporting reasons that the situation

[[Page 442]]

qualifies as an emergency in accordance with the requirements set out in 
section 410 of the Act.
    (c) Notice to the owner shall not be required prior to entry for 
emergency reclamation. OSM shall make reasonable efforts to notify the 
owner and obtain consent prior to entry, consistent with the emergency 
conditions that exist. Written notice shall be given to the owner as 
soon after entry as practical in accordance with the requirements set 
out in Sec. 877.13(c) of this chapter.



PART 879_ACQUISITION, MANAGEMENT, AND DISPOSITION OF LANDS AND WATER--Table of 

Contents



Sec.
879.1 Scope.
879.5 Definitions.
879.11 Land eligible for acquisition.
879.12 Procedures for acquisition.
879.13 Acceptance of gifts of land.
879.14 Management of acquired land.
879.15 Disposition of reclaimed land.

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

    Source: 47 FR 28597, June 30, 1982, unless otherwise noted.



Sec. 879.1  Scope.

    This part establishes procedures for acquisition of eligible land 
and water resources for emergency abatement activities and reclamation 
purposes by you, a State or Indian tribe with an approved reclamation 
program which has not certified completion of coal reclamation, or by 
us. It also provides for the management and disposition of lands 
acquired by the OSM, State, or Indian tribe.

[73 FR 67641, Nov. 14, 2008]



Sec. 879.5  Definitions.

    As used in this part--
    Reclamation plan or State reclamation plan means a plan that a State 
or Indian tribe submitted and that we approved under section 405 of 
SMCRA and part 884 of this chapter.

[73 FR 67641, Nov. 14, 2008]



Sec. 879.11  Land eligible for acquisition.

    (a) We may acquire land adversely affected by past coal mining 
practices with moneys from the Fund. If approved in advance by us, you, 
an uncertified State or Indian tribe, may also acquire land adversely 
affected by past coal mining practices with moneys from the Fund or with 
prior balance replacement funds provided under Sec. 872.29 of this 
chapter. Our approval must be in writing, and we must make a finding 
that the land acquisition is necessary for successful reclamation and 
that--
    (1) The acquired land will serve recreation, historic, conservation, 
and reclamation purposes or provide open space benefits after 
restoration, reclamation, abatement, control, or prevention of the 
adverse effects of past coal mining practices; and
    (2) Permanent facilities will be constructed on the land for the 
restoration, reclamation, abatement, control, or prevention of the 
adverse effects of past coal mining practices. For the purposes of this 
paragraph, ``permanent facility'' means any structure that is built, 
installed or established to serve a particular purpose or any 
manipulation or modification of the site that is designed to remain 
after the reclamation activity is completed, such as a relocated stream 
channel or diversion ditch.
    (b) You, an uncertified State or Indian tribe, if approved in 
advance by us, may acquire coal refuse disposal sites, including the 
coal refuse, with moneys from the Fund and with prior balance 
replacement funds provided under Sec. 872.29 of this chapter. We, OSM, 
also may use moneys from the Fund to acquire coal refuse disposal sites, 
including the coal refuse.
    (1) Before the approval of the acquisition, the reclamation program 
seeking to acquire the site will make a finding in writing that the 
acquisition is necessary for successful reclamation and will serve the 
purposes of their reclamation program.
    (2) Where an emergency situation exists and a written finding as set 
out in Sec. 877.14 of this chapter has been made, we may acquire lands 
where public ownership is necessary and will prevent recurrence of the 
adverse effects of past coal mining practices.
    (c) Land adversely affected by past coal mining practices may be 
acquired by us if the acquisition is an integral

[[Page 443]]

and necessary element of an economically feasible plan or project to 
construct or rehabilitate housing which meets the specific requirements 
in section 407(h) of SMCRA.
    (d) Land or interests in land needed to fill voids, seal abandoned 
tunnels, shafts, and entryways or reclaim surface impacts of underground 
or surface mines may be acquired by the OSM, State, or Indian tribe if 
OSM finds that acquisition is necessary under part 875 of this chapter.
    (e) The OSM, State, or Indian tribe which acquires land under this 
part shall acquire only such interests in the land as are necessary for 
the reclamation work planned or the postreclamation use of the land. 
Interests in improvements on the land, mineral rights, or associated 
water rights may be acquired if--
    (1) The customary practices and laws of the State in which the land 
is located will not allow severance of such interests from the surface 
estate; or
    (2) Such interests are necessary for the reclamation work planned or 
for the postreclamation use of the land; and
    (3) Adequate written assurances cannot be obtained from the owner of 
the severed interest that future use will not be in conflict with the 
reclamation to be accomplished.

[47 FR 28597, June 30, 1982, as amended at 73 FR 67641, Nov. 14, 2008]



Sec. 879.12  Procedures for acquisition.

    (a) An appraisal of all land or interest in land to be acquired 
shall be obtained by the OSM, State, or Indian tribe. The appraisal 
shall state the fair market value of the land as adversely affected by 
past mining.
    (b) When practical, acquisition shall be by purchase from a willing 
seller. The amount paid for land or interests in land acquired shall 
reflect the fair market value of the land or interests in land as 
adversely affected by past mining.
    (c) When necessary, land or interests in land may be acquired by 
condemnation. Condemnation procedures shall not be started until all 
reasonable efforts have been made to purchase the land or interests in 
lands from a willing seller.
    (d) The OSM, State, or Indian tribe which acquires land under this 
part shall comply, at a minimum, with the Uniform Relocation Assistance 
and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4601, et 
seq., and 41 CFR part 114-50.



Sec. 879.13  Acceptance of gifts of land.

    (a) The OSM, State, or Indian tribe under an approved reclamation 
plan may accept donations of title to land or interests in land if the 
land proposed for donation meets the requirements set out in Sec. 
879.11.
    (b) Offers to make a gift of land or interest in land to the U.S. 
Government shall be in writing and comply with U.S. Department of the 
Interior regulations for land donations. The States and Indian tribes 
may use procedures provided by applicable State or Indian tribal law.



Sec. 879.14  Management of acquired land.

    Land acquired under this part may be used for any lawful purpose 
that is consistent with the necessary reclamation activities. Procedures 
for collection of user charges or the waiver of such charges by the OSM, 
State, or Indian tribe shall provide that all user fees collected shall 
be deposited in the appropriate Abandoned Mine Reclamation Fund.



Sec. 879.15  Disposition of reclaimed land.

    (a) Prior to the disposition of any land acquired under this part, 
OSM, State, or Indian tribe shall publish a notice of proposed land 
disposition, hold public hearings, if required, and make written 
findings in accordance with the authority contained in section 407(g)(2) 
of the Act.
    (b) OSM may transfer administrative responsibility for land acquired 
by OSM to any Federal Department or Agency, with or without cost to that 
Department or Agency. OSM may transfer title for land acquired by OSM to 
any State or Indian tribe or to any agency or political subdivision of a 
State or Indian tribe, with or without cost to that entity, for the 
purposes set out in paragraphs (e) or (f) of this section. The agreement 
under which a transfer is made shall specify--

[[Page 444]]

    (1) The purposes for which the land may be used, which shall be 
consistent with the authorization under which the land was acquired; and
    (2) That the title of administrative responsibility for the land 
shall revert to OSM, State, or Indian tribe if, at any time in the 
future, OSM finds that the land is not used for the purposes specified.
    (c) OSM may accept title for abandoned and unreclaimed land to be 
reclaimed and administered by OSM. If a State or Indian tribe transfers 
land to OSM under this section, that State or Indian tribe shall have a 
preference right to purchase such land from OSM after reclamation is 
completed. The price to be paid by the State or Indian tribe shall be 
the fair market value of the land in its reclaimed condition less any 
portion of the land acquisition price paid by the State or Indian tribe.
    (d) OSM may sell land acquired and reclaimed under this part, except 
that acquired for housing under Sec. 879.11(c), to the State or local 
government at less than fair market value but in no case less than 
purchase price plus reclamation cost provided such land is used for a 
valid public purpose.
    (e) OSM may transfer or sell land acquired for housing under Sec. 
879.11(c), with or without monetary consideration, to any State or 
political subdivision of a State, to an Indian tribe, or to any firm, 
association, or corporation. The conditions of transfer or sale shall be 
in accordance with section 407(h) of the Act.
    (f) OSM may transfer title for land acquired for housing under Sec. 
879.11(c) by grants or commitments for grants, or may advance money 
under such terms and conditions as required, to--
    (1) Any State or Indian tribe; or
    (2) A department, agency, or instrumentality of a State; or
    (3) Any public body or nonprofit organization designated by a State.
    (g)(1) OSM may sell or authorize the States or Indian tribes to sell 
land acquired under this part by public sale if--
    (i) Such land is suitable for industrial, commercial, residential, 
or recreational development;
    (ii) Such development is consistent with local, State, of Federal 
land use plans for the area in which the land is located; and
    (iii) Retention by OSM, State, or Indian tribe, or disposal under 
other paragraphs of this section is not in the public interest.
    (2) Disposal procedures will be in accordance with section 407(g) of 
the Act and applicable State or Indian tribal requirements.
    (3) States may transfer title or administrative responsibility for 
land to cities, municipalities, or quasi-governmental bodies, provided 
that the State provide for the reverter of the title or administrative 
responsibility if the land is no longer used for the purposes originally 
proposed.
    (h) We will handle all moneys received under this paragraph as 
unused funds in accordance with Sec. 886.20 of this chapter.

[47 FR 28597, June 30, 1982, as amended at 73 FR 67642, Nov. 14, 2008]



PART 880_MINE FIRE CONTROL--Table of Contents



Sec.
880.1 Scope.
880.5 Definitions.
880.11 Qualifications of projects.
880.12 Cooperative agreements.
880.13 Project implementation.
880.14 Administration of contributions.
880.15 Assistance by States or Indian tribes, local authorities, and 
          private parties.
880.16 Civil rights.

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

    Source: 48 FR 37378, Aug. 18, 1983, unless otherwise noted.



Sec. 880.1  Scope.

    Projects for the control or extinguishment of outcrop or underground 
fires in coal formations under the authority of the Act of August 31, 
1954 (30 U.S.C. 551-558); section 205(a)(2) of the Appalachian Regional 
Development Act of 1965 (Pub. L. 89-4, 79 Stat. 5), and the Energy 
Policy Act of 1992 (Pub. L. 102-486).

[59 FR 52377, Oct. 17, 1994]



Sec. 880.5  Definitions.

    As used in the regulations in this part and in cooperative 
agreements, entered into pursuant to the regulations in this part:

[[Page 445]]

    (a) Government means the United States of America;
    (b) Commission means the Appalachian Regional Development Commission 
established by section 101 of the Appalachian Regional Development Act 
of 1965;
    (c) Local authorities means the State or local governmental bodies 
organized and existing under the authority of State laws, including, but 
not limited to, a county, city, township, town, or borough;
    (d) Approved abandoned mine reclamation program means a program 
meeting the requirements defined in section 405 of PL 95-87, as amended;
    (e) Operating coal mine means a coal mine for which the regulatory 
authority has not terminated its jurisdiction as set out under 30 CFR 
700.11(d)(1);
    (f) Inactive coal mine means a coal mine for which the regulatory 
authority has terminated its jurisdiction as set out under 30 CFR 
700.11(d)(1);
    (g) Project means a project whose purpose is to control or 
extinguish fires in coal formations.
    (h) Reclamation plan or State reclamation plan means a plan that a 
State or Indian tribe submitted and that we approved under section 405 
of SMCRA and part 884 of this chapter.

[48 FR 37378, Aug. 18, 1983. Redesignated and amended at 59 FR 52377, 
Oct. 17, 1994; 73 FR 67642, Nov. 14, 2008]



Sec. 880.11  Qualifications of projects.

    The purpose of all projects is to prevent injury and loss of life, 
protect public health, conserve natural resources, or protect public and 
private property. Federal funds cannot be used to fund projects in 
privately owned operating coal mines. Further, any such cooperative 
agreement that is entered into under the Energy Policy Act of 1992 with 
an AML State eligible to receive funds from the Appalachian Regional 
Development Commission is not subject to review by that Commission.

[59 FR 52377, Oct. 17, 1994]



Sec. 880.12  Cooperative agreements.

    (a) OSM shall, upon application by a State or Indian tribe with an 
approved abandoned mine reclamation program, enter into a cooperative 
agreement with the State or Indian tribe to control or extinguish fires 
in coal formations.
    (b) OSM may conduct coal formation fire control projects in States 
not having an approved abandoned mine reclamation program or on Indian 
lands if the tribe does not have an approved abandoned mine reclamation 
program. However, upon application by such a State or Indian tribe, OSM 
may enter into a cooperative agreement with the State or Indian tribe 
and the local authorities to control or extinguish fires in coal 
formations. OSM shall require in connection with any project for the 
control or extinguishment of fires in any inactive coal mine on lands 
not owned or controlled by the United States or any of its agencies, 
except where such project is necessary for the protection of lands or 
other property owned or controlled by the United States or any of its 
agencies in such a State that: (1) the State or the person owning or 
controlling such lands contribute on a matching basis 50 percent of the 
cost of planning and executing such project, or (2) if such State or 
person furnishes evidence satisfactory to the Secretary of an inability 
to make the immediately matching contribution herein provided for, that 
such State or person pay the Government, within such time as the 
Secretary shall determine, an amount equal to 50 percent of the cost of 
planning and executing such project. If the project is funded by the 
Appalachian Regional Commission, the Federal share shall not exceed 75 
percent of the cost of the project.
    (c) OSM is authorized to conduct fire control projects on lands 
owned or controlled by the United States. However, upon application by 
another Federal agency having jurisdiction for lands owned or controlled 
by the United States, or a State or Indian tribe having an approved 
abandoned mine reclamation program and agreements with Federal agencies 
to conduct such projects on Federal lands within its boundaries, OSM may 
enter into an agreement with either the other Federal agency or State or 
Indian tribe to

[[Page 446]]

control or extinguish fires in coal formations. There are no cost 
sharing requirements for this type of project.

[59 FR 52378, Oct. 17, 1994]



Sec. 880.13  Project implementation.

    (a) Under cooperative agreements with States or Indian tribes having 
an approved AML reclamation plan:
    (1) States or Indian tribes will design, plan, and engineer a method 
of operation for control or extinguishment of the outcrop or underground 
mine fire, and will execute the project through a project contract, or, 
if the work is to be done in phases, a series of project contracts.
    (2) If OSM assistance is required, OSM will be reimbursed by the 
State or Indian tribe for all costs incurred, including OSM employees' 
time.
    (b) In States and on Indian lands under the jurisdiction of tribes 
not having approved AML reclamation plans and on Federal lands, OSM has 
the authority to design, plan, and engineer a method of operation for 
control or extinguishment of the outcrop or underground mine fire, and 
will execute the project through a project contract, or, if the work is 
to be done in phases, a series of project contracts. OSM, may, at its 
discretion, delegate authority to perform this work to States or Indian 
tribes or other Federal agencies.

[59 FR 52378, Oct. 17, 1994]



Sec. 880.14  Administration of contributions.

    Financial contributions made by a State or Indian tribe, local 
authorities, or another Federal agency will be deposited in a trust fund 
in the Treasury of the United States. These contributions can be 
withdrawn by OSM and expended by the organization executing the project 
(OSM, a State, Indian tribe, or another Federal agency) pursuant to the 
cooperative agreement as necessary in performance of the project work. 
Withdrawals and expenditures from the trust fund will be made only for 
costs connected with the project. Any part of the money contributed by a 
State, Indian tribe, local authority, or another Federal agency for an 
individual project that remains unexpended upon the completion or 
termination of project will be returned to the State, Indian tribe, 
local authority, or other Federal agency.

[59 FR 52378, Oct. 17, 1994]



Sec. 880.15  Assistance by States or Indian tribes, local authorities, and 

private parties.

    States Indian tribes, local authorities, or private parties, as may 
be appropriate in each particular project, and without cost or charge to 
project costs may:
    (a) Provide assistance in planning and engineering the project, as 
requested by the organization executing the project;
    (b) Furnish best available information, data, and maps on the 
location of the project and the location of water, sewer, and power 
lines within the project area, and maps or plats showing properties and 
lands on which releases, consents, or rights or interests in lands have 
been obtained;
    (c) Obtain and deliver to OSM releases, proper consent or the 
necessary rights or interests in lands, and other documents required by 
OSM for approval of the project, and in form and substance satisfactory 
to OSM;
    (d) Furnish a certification in form and substance satisfactory to 
OSM that the releases, consents, or the necessary rights or interests in 
lands, are from all the legal property owners within the project area;
    (e) Agree to indemnify and hold the Government harmless should any 
property owner within the project area make any claim for damage 
resulting from the work within the project area if releases, consents or 
rights or interests were not obtained from such property owner by the 
State or local authorities;
    (f) Grant to the Government the right to enter upon streets, roads, 
and other land owned or controlled by the State or the local authorities 
overlying or adjacent to the project fire area, and to conduct thereon 
the operations referred to in the cooperative agreement and project 
contract, and agree to hold the Government harmless from any claim for 
damage arising out of the project operations to property owned, 
possessed or controlled by the State or

[[Page 447]]

local authorities in the vicinity of the project area;
    (g) Furnish noncombustible materials suitable for implementing the 
planned fire control work. This material may be waste or borrow material 
obtained at the site or brought in from off-site.
    (h) Maintain and perform maintenance work on the project as may be 
provided in the cooperative agreement;
    (i) Agree not to mine or permit mining of coal or other minerals on 
property owned or controlled by the State or local authorities, if 
required by OSM, to assure the success of, or protection to, the project 
work and the control or extinguishment of the fire, and for such period 
of time as may be required by OSM; and
    (j) If necessary, procure the enactment of State or local laws 
providing for the control and extinguishment of outcrop and underground 
fires in coal formations on State or privately owned lands and the 
cooperation of the State or local authorities in the work and the 
requisite authority to permit the States or local authorities to meet 
the obligations imposed by the regulations in this part of a cooperative 
agreement.

[51 FR 5493, Feb. 13, 1986. Redesignated at 59 FR 52377, Oct. 17, 1994, 
and amended at 59 FR 52378, Oct. 17, 1994]



Sec. 880.16  Civil rights.

    State and local authorities shall comply with Title VI of the Civil 
Rights Act of 1964 (Pub. L. 88-352) and all requirements imposed by or 
pursuant to the regulations of the Department of the Interior entitled 
``Nondiscrimination in Federally-assisted Programs of the Department of 
the Interior-Effectuation of Title VI of the Civil Rights Act of 1964'' 
(43 CFR part 17) and shall give assurances of compliance in such form as 
may be required by the Director.

[48 FR 37378, Aug. 18, 1983. Redesignated at 59 FR 52378, Oct. 17, 1994]



PART 881_SUBSIDENCE AND STRIP MINE REHABILITATION, APPALACHIA--Table of 

Contents



Sec.
881.1 Purpose and scope.
881.2 Definitions.
881.3 Qualification of projects.
881.4 Application of contribution.
881.5 Cooperative agreements.
881.6 Project contract.
881.7 Administration of contributions.
881.8 Withholding of payments.
881.9 Reports.
881.10 Obligations of States or local authorities.
881.11 Nondiscrimination.
881.12 Civil rights.

    Authority: Sec. 205, 79 Stat. 13 (40 U.S.C. App. 205), and Pub. L. 
95-87, 30 U.S.C. 1201 et seq.

    Source: 48 FR 37379, Aug. 18, 1983, unless otherwise noted.



Sec. 881.1  Purpose and scope.

    The regulations in this part provide for contributions by the 
Secretary with respect to projects in the Appalachian Region for the 
sealing and filling of voids in abandoned coal mines or for the 
reclamation and rehabilitation of existing strip and surface mine areas 
under the authority of subsection (a)(1) of section 205 of the 
Appalachian Region Development Act of 1965 (Pub. L. 89-4, 79 Stat. 5)



Sec. 881.2  Definitions.

    As used in the regulations in this part and in cooperative 
agreements entered into pursuant to the regulations in this part:
    (a) Government means the United States of America;
    (b) Commission means the Appalachian Regional Development Commission 
established by section 101 of the Appalachian Regional Development Act 
of 1965;
    (c) State means any one of the States listed in section 403 of the 
Appalachian Regional Development Act of 1965; and
    (d) Local authorities or local bodies of government means a county, 
city, township, town, or borough, and other local governmental bodies 
organized and existing under authority or State laws.

[[Page 448]]



Sec. 881.3  Qualification of projects.

    (a) Projects for the reclamation and rehabilitation of strip-mined 
areas will be considered only if all of the lands embraced within the 
project are lands owned by the Federal Government, a State, or local 
bodies of government.
    (b) Projects must be submitted by a State to the Commission and 
receive the approval of that body.



Sec. 881.4  Application of contribution.

    (a) A State in its application for contribution to a project shall 
fully describe the conditions existing in the project area and give a 
full justification for the project in terms of the relationship of the 
potential benefits that will result from the project to the estimated 
costs of the project and in terms of the improvement, on a continuing 
basis, to the economic potential of the State or area which the project 
will bring about. If the project entails the reclamation and 
rehabilitation of strip and surface mined areas, the application shall 
state the uses to which the lands will be put.
    (b) Before submitting a project to the Secretary for approval, the 
Director shall obtain from the State the following:
    (1) Copies of inspection procedures, designs, plans and methods of 
engineering proposed for the construction, installation, services or 
work to be performed to accomplish the objectives of the project;
    (2) Accurate information, data, and maps of the location of the 
project, the area involved, and, if the project consists of work 
designed to prevent or alleviate subsidence, information, data, and maps 
(if available) of the seams of coal to be filled or flushed;
    (3) The proposed advertisement for bids for each project contract, 
which advertisement shall include suitable references concerning the 
fact that the project is one to the cost of which the Government will 
contribute under the Appalachian Regional Development Act of 1965, and 
that the State's acceptance of liability arising out of any bid shall be 
subject to contribution by the Government under the provisions of a 
cooperative agreement with the Government for that purpose;
    (4) The proposed project contract, together with specifications and 
drawings pertaining to the equipment, materials, labor and work to be 
performed by the project contractor;
    (5) Releases, proper consent or the necessary rights or interests in 
lands and coal formations, for gaining access to and carrying out work 
in or on the project, and other documents required by OSM for approval 
of the project, and in form and substance satisfactory to OSM;
    (6) Certifications or documents, as may be required by OSM, 
indicating public ownership or control of subsurface coal or mineral 
rights accompanied by appropriate resolutions from the State or local 
authorities to indemnify and hold the Government harmless should any 
property owner within the project area make any claim for damage 
resulting from the work within the project area if releases, consents or 
rights or interests were not obtained from such property owner by the 
State or local authorities, and not to mine or permit mining of coals or 
other minerals in property owned or controlled by the State or local 
authorities.
    (7) If the project is for the rehabilitation or reclamation of a 
strip mine area, evidence satisfactory to the Secretary that the State 
or local authority owns the lands upon which the project is proposed to 
be carried out, and that effective installation, operation, and 
maintenance safeguards will be enforced;
    (8) The estimated total cost of the proposed project and, if the 
work is proposed to be performed in phases, the estimated cost of each 
phase.
    (c) If the Secretary approves the project, the Director will submit 
to the State a coopertive agreement establishing the estimated cost of 
the project in the amount approved by the Secretary.



Sec. 881.5  Cooperative agreements.

    (a) Each project shall be covered by a cooperative agreement between 
the Government, as represented by the Director, and the State. The 
agreement shall establish the total estimated cost of the project and, 
if the project is to

[[Page 449]]

be accomplished in phases, the estimated cost of each phase. The maximum 
obligations of the parties to share the cost of the project shall be 
stated in terms of the total estimated cost of the project and, if 
project is to be accomplished in phases, in terms of the estimated cost 
of each phase. Other responsibilities of the parties shall also be 
described in the agreement, as may be agreed upon and as may be in 
conformity with these regulations, to meet the needs and requirements of 
a particular project.
    (b) The Government's obligation to contribute funds may be less than 
but shall not exceed 75 percent of the total estimated cost of the 
project. The obligation of the State (and, if appropriate, the local 
authorities) to contribute funds may be more but shall not be less than 
25 percent of the total estimated cost of the project.
    (c) None of the funds contributed by the Government or by the State 
shall be used for operating or maintaining the project or for the 
purchase of culm, rock, spoil, or other filling or flushing material.
    (d) The Director may, without approval by the Secretary execute 
amendments to a cooperative agreement which will cover (1) acceptance of 
a bid on a proposed project contract that does not exceed by more than 
20 percent the estimated cost, initially established in the cooperative 
agreement, of the work covered by the proposed project contract, and (2) 
the estimated costs of additional work under a project contract, if the 
estimated cost, initially established in the cooperative agreement, of 
the work covered by the project contract will not be increased by more 
than 20 percent.



Sec. 881.6  Project contract.

    (a) Upon approval of the project by the Secretary, execution of the 
cooperative agreement, and receipt of an acceptable bid, the State shall 
carry out and execute the project through a project contract, or, if the 
work is to be done in phases, a series of project contracts, entered 
into by the State and its contractors or suppliers for the construction, 
installation, services or work to be performed.
    (b) Project contracts shall be entered into only with the lowest 
responsible bidder pursuant to suitable procedures for advertising and 
competitive bidding. The Government's obligation to contribute to the 
cost of a project, or a phase of a project, is limited to the estimated 
costs established in the cooperative agreement. If the bids on work to 
be done under a proposed project contract exceed the estimated cost of 
the work established in the cooperative agreement, the State should not 
enter into the project contract unless the cooperative agreement has 
been amended to provide for an increase in contributions sufficient to 
meet the increase in costs, or unless the State wishes to assume the 
excess cost of the project.
    (c) OSM shall be advised of the time and place of the opening of 
bids on a proposed project contract and may have a representative 
present.
    (d) If the State amends a project contract, or issues a change order 
thereunder, and the amendment or change order results in an expenditure 
under the project contract in excess of the estimated cost of the work 
established in the cooperative agreement, the Government shall be under 
no obligation to contribute to such excess costs unless the cooperative 
agreement has been amended to provide for an increase in contributions 
by the parties sufficient to meet such excess costs.
    (e) The State shall furnish the Director, in duplicate, a certified 
true executed copy of each project contract with related plans, 
specifications, and drawings annexed thereto, promptly upon its 
execution.
    (f) The State shall include in each project contract provisions to 
the effect that--
    (1) Regardless of any agreement between the State and the Government 
respecting contributions by the Government to the cost of the contract 
under the provisions of section 205(a)(1) of the Appalachian Regional 
Development Act of 1965 (Pub. L. 89-4, 79 Stat. 5), the Government shall 
not be considered to be a party to the contract or in any manner liable 
thereunder. Neither the Government nor any of its officers, agents, or 
employees shall be responsible for any loss, expense, damages to 
property, or injuries to persons, which

[[Page 450]]

may arise from or be incident to the use and occupation of any property 
affected by the operations contemplated under the project, or for 
damages to the property of the contractor, or for injuries to the person 
of the contractor, or for damages to the property, or injuries to the 
contractor's officers, agents, servants, or employees, or others who may 
be on said premises at their invitation or the invitation of any of 
them, and the State and the project contractor shall hold the Government 
and any of its officers, agents, or employees, harmless from all such 
claims.
    (2) The Secretary of the Interior or the Director of OSM or their 
authorized representative may enter upon and inspect the project at any 
reasonable time and may confer with the contractor and the State 
regarding the conduct of project operations.
    (3) All laborers and mechanics employed by the contractor or 
subcontractors on the project shall be paid wages at rates not less than 
those prevailing on similar construction in the locality as determined 
by the Secretary of Labor in accordance with the Davis-Bacon Act, as 
amended (40 U.S.C. 276a-276a-5). The Secretary of Labor shall have with 
respect to such labor standards, the authority and functions set forth 
in Reorganization Plan Number 14 of 1950 (15 FR 3176, 64 Stat. 1267, 5 
U.S.C. 133-133z-15), and section 2 of the Act of June 13, 1934, as 
amended (48 Stat. 948, as amended; 40 U.S.C. 276(c)).
    (4) To assure the use of local labor to the maximum extent 
practicable in the implementation of a project:
    (i) Every contractor or subcontractor undertaking to do work on the 
project which is or reasonably may be done as onsite work, in carrying 
out such contract work shall give preference to qualified persons who 
regularly reside in the labor area as designated by the U.S. Department 
of Labor wherein such project is situated, or the subregion, or the 
Appalachian counties of the State wherein such project is situated, 
except:
    (A) To the extent that qualified persons regularly residing in the 
area are not available;
    (B) For the reasonable needs of any such contractor or 
subcontractor, to employ supervisory or specially experienced 
individuals necessary to assure an efficient execution of the contract;
    (C) For the obligation of any such contractor or subcontractor to 
offer employment to present or former employees as the result of a 
lawful collective bargaining contract, provided that in no event shall 
the number of nonresident persons employed under paragraph (f)(4)(i)(C) 
exceed 20 percent of the total number of employees employed by such 
contractor and his subcontractors on such project.
    (ii) Every such contractor and subcontractor shall furnish the 
appropriate U.S. Employment Service offices with a list of all positions 
for which laborers, mechanics, and other employees may be required.
    (iii) Every such contractor and subcontractor shall furnish periodic 
reports to the contracting agency on the extent to which local labor has 
been used in carrying out the contract work.



Sec. 881.7  Administration of contributions.

    (a) The Government's contribution to a State will be made only 
pursuant to a cooperative agreement and only upon the basis of payments 
made, or that are then due and payable, by the State under a project 
contract between the State and its contractor for the construction, 
installation, services or work performed on individual projects and 
shall not exceed 75 percent of such amounts.
    (b) The State shall submit to the Director, not more often than once 
a month and for each cooperative agreement, a separate voucher which 
describes each payment made or that is due and payable by the State 
under a project contract. The amounts claimed under each voucher shall 
be certified by the State as proper charges under the project contract, 
and the State shall also certify that the amounts have either been paid 
or are due and payable thereunder. Insofar as the Government's 
contribution payments related to amounts due and payable rather than 
amounts already paid, the State shall disburse such funds together with 
the funds contributed by the State, promptly upon receipt from the 
Government.

[[Page 451]]

    (c) The State shall maintain suitable records and accounts of its 
transactions with and payments to project contractors, and the 
Government may inspect and audit such accounts and records during normal 
business hours and as it may deem necessary.



Sec. 881.8  Withholding of payments.

    Whenever the Secretary, after reasonable notice and opportunity for 
hearing, finds that there is a failure by the State to expend funds in 
accordance with the terms and conditions governing the Government's 
contribution for an approved project, he shall notify the State that 
further payments will not be made to the State from available 
appropriations until he is satisfied that there will no longer be any 
such failure. Until the Secretary is so satisfied, payment of any 
financial contribution to the State shall be withheld.



Sec. 881.9  Reports.

    At such times and in such detail as the Secretary shall require, the 
State shall furnish to the Secretary a statement with respect to each 
project showing the work done, the status of the project, expenditures, 
and amounts obligated, and such other information as may be required.



Sec. 881.10  Obligations of States or local authorities.

    (a) The State shall have full responsibility for installing, 
operating, and maintaining projects constructed pursuant to the 
regulations in this part.
    (b) The State shall give evidence, satisfactory to the Secretary, 
that it will enforce effective safeguards with respect to installation, 
operation, and maintenance.
    (c) The State shall agree that neither the Government nor any of its 
officers, agents, or employees shall be responsible for any loss, 
expense, damages to property, or injuries to persons, which may arise 
from or be incident to work upon, or to the use and occupation of any 
property affected by operations under, the project, and the State shall 
agree to hold the Government and its officers, agents, or employees 
harmless from all such claims.
    (d) In order to assure effective safeguards with respect to 
installation, operation, and maintenance, the State or local authority 
will be required to own (or control), the land, subsurface, or coal 
seams in instances such as the following:
    (1) If the objective of the project is to prevent or alleviate 
subsidence, the State or local authority shall have or acquire such 
subsurface and underground rights or interests in such coal seams or 
coal measures as may be required to assure the stability and continued 
existence of the project and to such an extent as will give reasonable 
assurance that the work will not be disturbed in the future.
    (2) If the objective of the project is to rehabilitate or reclaim 
strip-mined areas, the land shall be owned by the Federal, State, or 
local body of government. Such ownership shall comprise such mineral, 
subsurface and underground rights and interests as will assure that no 
further mining operations will be conducted upon or under the land in 
the future.
    (3) If the objective of the project is to seal abandoned open 
shafts, slopes, air holes and other mine openings to underground 
workings where public safety hazards exist, or to control or prevent 
erosion, water pollution, or discharge of harmful mine waters, the State 
shall have or acquire such right, title or interest in the lands as will 
assure the stability and continued existence of the project work.
    (4) The extent of ownership or control necessary shall be determined 
with respect to each individual project.
    (e) The State or local authorities, shall agree not to mine or 
permit the mining of coal or other minerals in the land or property 
owned or controlled by the State or local authorities, if required by 
OSM to assure the success or protection of the project work for such 
period of time as may be required by OSM.
    (f) Upon request of OSM, the State or local authority shall furnish 
and disclose the nature and extent of its right, title, or interest in 
lands within, or which may be affected by, the project and submit an 
analysis, in writing, of the title situation, the effectiveness, extent 
and strength of the title which

[[Page 452]]

has been acquired, and an opinion as to the protection which the 
documents conveying the various rights, titles, and interests in the 
land afford the project work and as to any defects in the title.
    (g) If necessary, State and local authorities shall procure the 
enactment of State or local laws or ordinances providing authority to 
participate in the work and projects conducted pursuant to the 
regulations in this part on lands owned by the State, the local 
authorities, or private persons, and the requisite authority to permit 
the State or local authorities to meet the obligations imposed by the 
regulations in this part or a cooperative agreement and to enter into 
project contracts of the kind and nature contemplated for the work to be 
performed.



Sec. 881.11  Nondiscrimination.

    The State shall comply with the provisions of section 301 of 
Executive Order 11246 (Sept. 24, 1965; 30 FR 12319, 12935) and shall 
incorporate the provisions prescribed by section 202 of Executive Order 
11246 in each project contract, and shall undertake and agree to assist 
and cooperate with the Director and the Secretary of Labor, obtain and 
furnish information, carry out sanctions and penalties, and refrain from 
dealing with debarred contractors, all as provided in said section 301.



Sec. 881.12  Civil rights.

    State or local authorities shall comply with Title VI of the Civil 
Rights Act of 1964 (Pub. L. 88-352) and all requirements imposed by or 
pursuant to the regulations of the Department of the Interior entitled 
``Nondiscrimination in Federally-assisted Programs of the Department of 
the Interior--Effectuation of Title VI of the Civil Rights Act of 1964'' 
(43 CFR part 17) and shall give assurances of compliance in such forms 
as may be required by the Director.



PART 882_RECLAMATION ON PRIVATE LAND--Table of Contents



Sec.
882.1 Scope.
882.10 Information collection.
882.12 Appraisals.
882.13 Liens.
882.14 Satisfaction of liens.

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

    Source: 47 FR 28599, June 30, 1982, unless otherwise noted.



Sec. 882.1  Scope.

    This part authorizes reclamation on private land and establishes 
procedures for recovery of the cost of reclamation activities conducted 
on privately owned land by the OSM, State, or Indian tribe.



Sec. 882.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
part 882 and assigned it control number 1029-0057. This information is 
being collected to meet the mandate of section 408 of SMCRA, which 
allows the State or Indian tribe to file liens on private property that 
has been reclaimed under certain conditions. This information will be 
used by the regulatory authority to ensure that the State or Indian 
tribe has sufficient programmatic capability to file liens to recover 
costs for reclaiming private lands. States and Indian tribes are 
required to respond to obtain a benefit in accordance with SMCRA. A 
Federal agency may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

[73 FR 67642, Nov. 14, 2008]



Sec. 882.12  Appraisals.

    (a) A notarized appraisal of private land to be reclaimed which may 
be subject to a lien under Sec. 882.13 shall be obtained from an 
independent appraiser. The appraisal shall state--
    (1) The estimated market value of the property in its unreclaimed 
condition; and
    (2) The estimated market value of the property as reclaimed.
    (b) This appraisal shall be made prior to start of reclamation 
activities. The agency shall furnish to the appraiser information of 
sufficient detail in the from of plans, factual data, specifications, 
etc., to make such appraisals. When reclamation requires more than 6

[[Page 453]]

months to complete, an updated appraisal under paragraph (a)(2) of this 
section shall be made to determine if the increase in value as 
originally appraised has actually occurred. Such updated appraisal shall 
not include any increase in value of the land as unreclaimed. If the 
updated appraised value results in lower increase in value, such 
increase shall be used as a basis for the lien. However, an increase in 
value resulting from the updated appraisal shall not be considered in 
determining a lien. OSM shall provide appraisal standards for Federal 
projects, and the State or Indian tribes shall provide appraisal 
standards for State or Indian tribal projects consistent with generally 
acceptable appraisal practice.



Sec. 882.13  Liens.

    (a) OSM, State, or Indian tribe has the discretionary authority to 
place or waive a lien against land reclaimed if the reclamation results 
in a significant increase in the fair market value; except that--
    (1) A lien must not be placed against the property of a surface 
owner who did not consent to, participate in or exercise control over 
the mining operation which necessitated the reclamation work.
    (2) The basis for making a determination of what constitutes a 
significant increase in market value or what factual situation 
constitutes a waiver of lien will be made by OSM, State, or Indian tribe 
pursuant to the Congressional intent expressed in section 408 of the Act 
and consistent with State or Indian tribal laws governing liens.
    (3) A lien may be waived if findings made prior to construction 
indicate that the reclamation work to be performed on private land shall 
primarily benefit the health, safety, or environmental values of the 
greater community or area in which the land is located; or if the 
reclamation is necessitated by an unforeseen occurrence, and the work 
performed to restore that land will not result in a significant increase 
in the market value of the land as it existed immediately before the 
unforeseen occurrence; and
    (4) OSM, State, or Indian tribe may waive the lien if the cost of 
filing it, including indirect costs to OSM, State, or Indian tribe, 
exceeds the increase in fair market value as a result of reclamation 
activities.
    (b) If a lien is to be filed, the OSM, State, or Indian tribe shall, 
within 6 months after the completion of the reclamation work, file a 
statement in the office having responsibility under applicable law for 
recording judgments and placing liens against land. Such statement shall 
consist of notarized copies of the appraisals obtained under Sec. 
882.12 and may include an account of moneys expended for the reclamation 
work. The amount reported to be the increase in value of the property 
shall constitute the lien to be recorded in compliance with existing 
Federal, State or Indian tribal laws: Provided, however, That prior to 
the time of the actual filing of the proposed lien, the landowner shall 
be notified of the amount of the proposed lien and shall be allowed a 
reasonable time to prepay that amount instead of allowing the lien to be 
filed against the property involved.
    (c) Within 60 days after the lien is filed the landowner may 
petition under local law to determine the increase in market value of 
the land as a result of reclamation work. Any aggrieved party may appeal 
in the manner provided by local law.

[47 FR 28599, June 30, 1982, as amended at 73 FR 67642, Nov. 14, 2008



Sec. 882.14  Satisfaction of liens.

    (a) A lien placed on private property shall be satisfied, to the 
extent of the value of the consideration received, at the time of 
transfer of ownership. Any unsatisfied portion shall remain as a lien on 
the property.
    (b) The OSM, State, or Indian tribe which files a lien on private 
property shall maintain or renew it from time to time as may be required 
under State or local law.
    (c) Moneys derived from the satisfaction of liens established under 
this part shall be deposited in the appropriate abandoned mine 
reclamation fund account.

[[Page 454]]



PART 884_STATE RECLAMATION PLANS--Table of Contents



Sec.
884.1 Scope.
884.5 Definitions.
884.11 State eligibility.
884.13 Content of proposed State reclamation plan.
884.14 State reclamation plan approval.
884.15 State reclamation plan amendments.
884.16 Suspension of plan.
884.17 Other uses by certified States and Indian tribes.

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

    Source: 47 FR 28600, June 30, 1982, unless otherwise noted.



Sec. 884.1  Scope.

    This part establishes the procedures and requirements for the 
preparation, submission and approval of State reclamation plans.



Sec. 884.5  Definitions.

    As used in this part--
    Reclamation plan or State reclamation plan means a plan that a State 
or Indian tribe submitted and that we approved under section 405 of 
SMCRA and part 884 of this chapter.

[73 FR 67642, Nov. 14, 2008]



Sec. 884.11  State eligibility.

    You, a State or Indian tribe, are eligible to submit a reclamation 
plan if you have eligible lands or water as defined in Sec. 700.5 of 
this chapter within your jurisdiction. We may approve your proposed 
reclamation plan if you have an approved State regulatory program under 
section 503 of SMCRA, and you meet the other requirements of this 
chapter and SMCRA. The States of Tennessee and Missouri are exempt from 
the requirement for an approved State regulatory program by section 
402(g)(8)(B) of SMCRA. The Navajo, Hopi, and Crow Indian tribes are 
exempt from the requirement for an approved regulatory program by 
section 405(k) of SMCRA.

[73 FR 67642, Nov. 14, 2008]



Sec. 884.13  Content of proposed State reclamation plan.

    You must submit each proposed State reclamation plan to the Director 
in writing. A proposed plan for a certified State or Indian tribe must 
include the designation described in paragraph (a) below and a 
commitment to address eligible coal problems found or occurring after 
certification as required in Sec. Sec. 875.13(a)(3) and 875.14(b) of 
this chapter. A proposed plan for an uncertified State or Indian tribe 
must include the following information.
    (a) A designation by the Governor of the State or the governing 
authority of the Indian tribe of the agency authorized to administer the 
State or Tribal reclamation program and to receive and administer grants 
under part 885 or part 886 of this chapter.
    (b) A legal opinion from the State Attorney General or the chief 
legal officer of the State agency that the designated agency has the 
authority under State law to conduct the program in accordance with the 
requirements of Title IV of the Act.
    (c) A description of the policies and procedures to be followed by 
the designated agency in conducting the reclamation program, including--
    (1) The purposes of the State reclamation program;
    (2) The specific criteria, consistent with section 403 of the Act 
for ranking and identifying projects to be funded;
    (3) The coordination of reclamation work among the State reclamation 
program, the Rural Abandoned Mine Program administered by the Soil 
Conservation Service, the reclamation programs of any Indian tribes 
located within the States, and OSM's reclamation programs; and
    (4) Policies and procedures regarding land acquisition, management 
and disposal under 30 CFR part 879;
    (5) Policies and procedures regarding reclamation on private land 
under 30 CFR part 882;
    (6) Policies and procedures regarding rights of entry under 30 CFR 
part 877; and
    (7) Public participation and involvement in the preparation of the 
State reclamation plan and in the State reclamation program.
    (d) A description of the administrative and management structure to 
be used in conducting the reclamation program, including--

[[Page 455]]

    (1) The organization of the designated agency and its relationship 
to other State organizations or officials that will participate in or 
augment the agency's reclamation capacity;
    (2) The personnel staffing policies which will govern the assignment 
of personnel to the State reclamation program;
    (3) The purchasing and procurement systems to be used by the agency. 
Such systems shall meet the requirements of Office of Management and 
Budget Circular A-102, Attachment 0; and
    (4) The accounting system to be used by the agency, including 
specific procedures for the operation of the State Abandoned Mine 
Reclamation Fund.
    (e) A general description, derived from available data, of the 
reclamation activities to be conducted under the State reclamation plan, 
including the known or suspected eligible lands and waters within the 
State which require reclamation, including--
    (1) A map showing the general location or known or suspected 
eligible lands and waters;
    (2) A description of the problems occurring on these lands and 
waters; and
    (3) How the plan proposes to address each of the problems occurring 
on these lands and waters.
    (f) A general description, derived from available data, of the 
conditions prevailing in the different geographic areas of the State 
where reclamation is planned, including--
    (1) The economic base;
    (2) Significant esthetic, historic or cultural, and recreational 
values; and
    (3) Endangered and threatened plant, fish, and wildlife and their 
habitat.

[47 FR 28600, June 30, 1982, as amended at 73 FR 67642, Nov. 14, 2008; 
75 FR 60276, Sept. 29, 2010]



Sec. 884.14  State reclamation plan approval.

    (a) The Director shall act upon a State reclamation plan within 90 
days after submittal. A State reclamation plan shall not be approved 
until the Director has--
    (1) Held a public hearing on the plan within the State which 
submitted it, or made a finding that the State provided adequate notice 
and opportunity for public comment in the development of the plan;
    (2) Solicited and considered the views of other Federal agencies 
having an interest in plan;
    (3) Determined that the State has the legal authority, policies, and 
administrative structure necessary to carry out the proposed plan;
    (4) Determined that the proposed plan meets all the requirements of 
this subchapter;
    (5) Determined that the State has an approved State regulatory 
program; and
    (6) Determined that the proposed plan is in compliance with all 
applicable State and Federal laws and regulations.
    (b) If the Director disapproves a proposed State reclamation plan, 
the Director shall advise the State in writing of the reasons for 
disapproval. The State may submit a revised proposed State reclamation 
plan at any time under the procedures of this section.



Sec. 884.15  State reclamation plan amendments.

    (a) A State may, at any time, submit to the Director a proposed 
amendment or revision to its approved reclamation plan. If the amendment 
or revision changes the objectives, scope or major policies followed by 
the State in the conduct of its reclamation program, the Director shall 
follow the procedures set out in Sec. 884.14 in approving or 
disapproving an amendment or revision of a State reclamation plan.
    (b) The Director shall promptly notify the State of all changes in 
the Act, the Secretary's regulations or other circumstances which may 
require an amendment to the State reclamation plan.
    (c) The State shall promptly notify OSM of any conditions or events 
that prevent or impede it from administering its State reclamation 
program in accordance with its approved State reclamation plan.
    (d) State reclamation plan amendments may be required by the 
Director when--
    (1) Changes in the Act or regulations of this chapter result in the 
approved

[[Page 456]]

State reclamation plan no longer meeting the requirements of the Act or 
this chapter; or
    (2) The State is not conducting its State reclamation program in 
accordance with the approved State reclamation plan.
    (e) If the Director determines that a State reclamation plan 
amendment is required, the Director, after consultation with the State, 
shall establish a reasonable timetable which is consistent with 
established administrative or legislative procedures in the State for 
submitting an amendment to the reclamation plan.
    (f) Failure of a State to submit an amendment within the timetable 
established under paragraph (e) of this section or to make reasonable or 
diligent efforts in that regard may result in either the suspension of 
the reclamation plan under Sec. 884.16, reduction, suspension or 
termination of existing AML grants under Sec. 886.18, or the withdrawal 
from consideration for approval of all grant applications submitted 
under Sec. 886.15.

[51 FR 9444, Mar. 19, 1986]



Sec. 884.16  Suspension of plan.

    (a) The Director may suspend a State reclamation plan in whole or in 
part, if he determines that--
    (1) Approval of the State regulatory program has been withdrawn in 
whole or in part;
    (2) The State is not conducting the State reclamation program in 
accordance with its approved State reclamation plan; or
    (3) The State has not submitted a reclamation plan amendment within 
the time specified under Sec. 884.15.
    (b) If the Director determines that the plan should be suspended, 
the Director shall notify the State by mail, return receipt requested, 
of the proposed action. The notice of proposed suspension shall state 
the reasons for the proposed action. Within 30 days the State must show 
cause why such action should not be taken. The Director shall afford the 
State an opportunity for consultation, including a hearing if requested 
by the State and performance of remedial action prior to the notice of 
suspension.
    (c) The Director shall notify the State of his decision in writing. 
The decision of the Director shall be final.
    (d) The Director shall lift the suspension if he determines that the 
deficiencies that led to suspension have been corrected.

[47 FR 28600, June 30, 1982, as amended at 51 FR 9444, Mar. 19, 1986]



Sec. 884.17  Other uses by certified States and Indian tribes.

    (a) The State reclamation plan may provide for construction of 
specific public facilities in communities impacted by coal development. 
This form of assistance is available when the Governor of the State has 
certified, and the Director has concurred that--
    (1) All reclamation with respect to past coal mining and with 
respect to the mining of other minerals and materials has been 
accomplished;
    (2) The specific public facilities are required as a result of coal 
development; and
    (3) Impact funds which may be available under the Federal Mineral 
Leasing Act of 1920, as amended, or the Act of October 20, 1978, Public 
Law 94-565 (90 Stat. 2662) are inadequate for such construction.
    (b) Grant applications for uses other than coal reclamation by 
certified States and Indian tribes may be submitted in accordance with 
Sec. 885.15 of this chapter.

[47 FR 28600, June 30, 1982, as amended at 73 FR 67642, Nov. 14, 2008]



PART 885_GRANTS FOR CERTIFIED STATES AND INDIAN TRIBES--Table of Contents



Sec.
885.1 What does this part do?
885.5 Definitions.
885.10 Information collection.
885.11 Who is eligible for a grant?
885.12 What can I use grant funds for?
885.13 What are the maximum grant amounts?
885.14 How long is my grant?
885.15 How do I apply for a grant?
885.16 After OSM approves my grant, what responsibilities do I have?
885.17 How can my grant be amended?
885.18 What audit, accounting, and administrative requirements must I 
          meet?
885.19 What happens to unused funds from my grant?

[[Page 457]]

885.20 What must I report?
885.21 What happens if I do not comply with applicable Federal law or 
          the terms of my grant?
885.22 When and how can my grant be terminated for convenience?

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

    Source: 73 FR 67642, Nov. 14, 2008, unless otherwise noted.



Sec. 885.1  What does this part do?

    This part sets forth procedures for grants to you, a State or Indian 
tribe that has certified under Sec. 875.13 of this chapter that all 
known coal reclamation problems in your State or on Indian lands within 
your jurisdiction have been addressed. OSM's ``Final Guidelines for 
Reclamation Programs and Projects'' (66 FR 31250, June 11, 2001) may be 
used if applicable.



Sec. 885.5  Definitions.

    As used in this part--
    Award means to approve our grant agreement authorizing you to draw 
down and expend program funds.
    Distribute means to annually assign funds to a specific State or 
Indian tribe. After distribution, funds are available for award in a 
grant to that specific State or Indian tribe.
    Reclamation plan or State reclamation plan means a plan that a State 
or Indian tribe submitted and that we approved under section 405 of 
SMCRA and part 884 of this chapter.



Sec. 885.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements 
for all Title IV grants and assigned clearance number 1029-0059. This 
information is being collected to obtain an estimate from you, the 
certified State or Indian tribe, of the funds you believe necessary to 
implement your program and to provide OSM with a means to measure 
performance results under the Government Performance and Results Act 
through your obligations of funds. Certified States and Indian tribes 
are required to respond to obtain a benefit in accordance with SMCRA. A 
Federal agency may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.



Sec. 885.11  Who is eligible for a grant?

    You are eligible for grants under this part if:
    (a) You are a State or Indian tribe with a reclamation plan approved 
under part 884 of this chapter; and
    (b) You have certified under Sec. 875.13 of this chapter that all 
known coal problems in your State or on Indian lands in your 
jurisdiction have been addressed.



Sec. 885.12  What can I use grant funds for?

    (a) For all awards under this part, you must use moneys for 
activities authorized in SMCRA and included in your approved reclamation 
plan or described in the grant application. In addition, you may use 
moneys granted under this part to administer your approved reclamation 
program.
    (b) You may use grant funds as established for each type of funds 
you receive. You may use prior balance replacement funds as provided 
under Sec. 872.31 of this chapter. You may use certified in lieu funds 
as provided under Sec. 872.34 of this chapter. You may use any moneys 
which may be available to you from the Fund for noncoal reclamation as 
authorized under section 411 of SMCRA and part 875 of this chapter.
    (c) You may use grant funds for any allowable cost as determined by 
the OMB cost principles in Circular A-87.



Sec. 885.13  What are the maximum grant amounts?

    (a) You may apply at any time for a grant of any or all of the Title 
IV funds that are available to you.
    (b) We will not award an amount greater than the total funds 
distributed to your State or Indian tribe in the current annual fund 
distribution less any previous awards of current year funds, plus any 
funds distributed to you in previous years but not awarded, plus any 
unexpended funds recovered from previous grants and made available to 
you under Sec. 885.19 of this chapter.

[[Page 458]]

    (c) Funds for the current fiscal year are available for award after 
the annual fund distribution described in Sec. 872.13 of this chapter.
    (d) Whenever you request it, we will give you information on the 
amounts and types of funds that are currently available to you.



Sec. 885.14  How long is my grant?

    The performance period for your grant will be the time period you 
request in your grant application.



Sec. 885.15  How do I apply for a grant?

    (a) You must use application forms and procedures specified by OSM.
    (b) We award your grant as soon as practicable but no more than 30 
days after we receive your complete application.
    (c) If your application is not complete, we inform you as soon as 
practicable of the additional information we need to receive from you 
before we can process the award.
    (d) You must agree to expend the funds of the grant in accordance 
with SMCRA, applicable Federal laws and regulations, and applicable OMB 
and Treasury Circulars.



Sec. 885.16  After OSM approves my grant, what responsibilities do I have?

    (a) When we award your grant, we send you a written grant agreement 
stating the terms of the grant.
    (b) After you are awarded a grant, you may assign functions and 
funds to other Federal, State, or local organizations. However, we will 
hold you responsible for the overall administration of that grant, 
including the proper use of funds and reporting.
    (c) The grant award constitutes an obligation of Federal funds. You 
accept the grant and its conditions once you initiate work under the 
agreement or draw down awarded funds.
    (d) Although we have approved the grant agreement, you must ensure 
that any applicable laws, clearances, permits, or requirements are met 
before you expend funds for projects other than coal reclamation under 
part 874.
    (e) If you conduct a coal reclamation project under part 874 of this 
chapter, you must not expend any funds until we have ensured that all 
necessary actions have been taken by you and us to ensure compliance 
with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
4321 et seq.) and any other applicable laws, clearances, permits or 
requirements.
    (f) To the extent technologically and economically feasible, you 
must use fuel other than petroleum or natural gas for all public 
facilities that are planned, constructed, or modified in whole or in 
part with Title IV grant funds.
    (g) You must not expend more funds than we have awarded. Our award 
of any grant does not commit or obligate the United States to award any 
continuation grant or to enter into any grant revision, including grant 
increases to cover cost overruns.



Sec. 885.17  How can my grant be amended?

    (a) A grant amendment is a change of terms or conditions of the 
grant agreement. An amendment may be initiated by you or by us.
    (b) You must promptly notify us in writing, or we must promptly 
notify you in writing, of events or proposed changes that may require a 
grant amendment.
    (c) All requirements and procedures for grant amendments follow 43 
CFR part 12.
    (d) We must award your amended grant agreement within 20 days of 
receiving your request.



Sec. 885.18  What audit, accounting, and administrative requirements must I 

meet?

    (a) You must comply with the audit requirements of the OMB Circular 
A-133.
    (b) You must follow procedures governing grant accounting, payment, 
records, property, and management contained in 43 CFR part 12.



Sec. 885.19  What happens to unused funds from my grant?

    All program grant funds are available until expended. If there are 
any unexpended funds after your grant is completed, we deobligate the 
funds when we close your grant. We make these unused funds available for 
re-award to the same certified State or Indian tribe

[[Page 459]]

to which they were originally distributed. You may apply for unused 
funds whenever you choose to request them either in a new grant award or 
as an amendment to an existing open grant.



Sec. 885.20  What must I report?

    (a) For each grant, you must annually report to us the performance 
and financial information that we request.
    (b) Upon completion of each grant, you must report to us final 
performance and financial information that we request.
    (c) You must use the AML inventory to maintain a current list of AML 
problems and to report annual reclamation accomplishments with grant 
funds.
    (1) If you conduct reclamation projects, you must update the AML 
inventory for each reclamation project you complete as you complete it.
    (2) We must approve any amendments to the AML inventory after 
December 20, 2006. We define ``amendment'' as any coal problems added to 
the AML inventory in a new or existing problem area.



Sec. 885.21  What happens if I do not comply with applicable Federal law or 

the terms of my grant?

    If you or your subgrantee materially fails to comply with an award, 
a reclamation plan, or a Federal statute or regulation, including 
statutes relating to nondiscrimination, we may take appropriate remedial 
actions. Enforcement actions and procedures must follow 43 CFR part12.



Sec. 885.22  When and how can my grant be terminated for convenience?

    Either you or we may terminate the grant for convenience following 
the procedures in 43 CFR part12.



PART 886_RECLAMATION GRANTS FOR UNCERTIFIED STATES AND INDIAN TRIBES--Table of 

Contents



Sec.
886.1 What does this partdo?
886.5 Definitions.
886.10 Information collection.
886.11 Who is eligible for a grant?
886.12 What can I use grant funds for?
886.13 What are the maximum grant amounts?
886.14 How long will my grant be?
886.15 How do I apply for a grant?
886.16 After OSM approves my grant, what responsibilities do I have?
886.17 How can my grant be amended?
886.18 What audit and administrative requirements must I meet?
886.19 How must I account for grant funds?
886.20 What happens to unused funds from my grant?
886.21 What must I report?
886.22 What records must I maintain?
886.23 What actions can OSM take if I do not comply with the terms of my 
          grant?
886.24 What procedures will OSM follow to reduce, suspend, or terminate 
          my grant?
886.25 How can I appeal a decision to reduce, suspend, or terminate my 
          grant?
886.26 When and how can my grant be terminated for convenience?
886.27 What special procedures apply to Indian lands not subject to an 
          approved Tribal reclamation program?

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

    Source: 73 FR 67644, Nov. 14, 2008, unless otherwise noted.



Sec. 886.1  What does this partdo?

    This partsets forth procedures for grants to you, an uncertified 
State or Indian tribe, to reclaim eligible lands and water and conduct 
other activities necessary to carry out your approved reclamation plan. 
OSM's ``Final Guidelines for Reclamation Programs and Projects'' (66 FR 
31250, June 11, 2001) may be used as applicable.



Sec. 886.5  Definitions.

    As used in this Part--
    Award means to approve our grant agreement authorizing you to draw 
down and expend program funds.
    Distribute means to annually assign funds to a specific State or 
Indian tribe. After distribution, funds are available for award in a 
grant to that specific State or Indian tribe.
    Reclamation plan or State reclamation plan means a plan that a State 
or Indian tribe submitted and that we approved under section 405 of 
SMCRA and part884 of this chapter.



Sec. 886.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the Office of Management 
and Budget (OMB) has approved the information collection requirements of 
part886, and Forms OSM-47, OSM-49, and OSM-51, and assigned clearance

[[Page 460]]

number 1029-0059. This information is being collected to obtain an 
estimate from you the uncertified State or Indian tribe of the funds you 
believe necessary to implement your reclamation program and to provide 
OSM with a means to measure performance results under the Government 
Performance and Results Act through State and Tribal obligations of 
funds. Uncertified States and Indian tribes are required to respond to 
obtain a benefit in accordance with SMCRA. A Federal agency may not 
conduct or sponsor, and you are not required to respond to, a collection 
of information unless it displays a currently valid OMB control number.



Sec. 886.11  Who is eligible for a grant?

    You are eligible for grants under this partif:
    (a) You are a State or Indian tribe with a reclamation plan approved 
under part884 of this chapter; and
    (b) You have not certified that all known coal problems in your 
State or on Indian lands in your jurisdiction have been addressed.



Sec. 886.12  What can I use grant funds for?

    (a) You must use moneys granted under this partto administer your 
approved reclamation program and to carry out the specific reclamation 
and other activities authorized in SMCRA as included in your reclamation 
plan or your grant application.
    (b) We award grants for reclamation of eligible lands and water in 
accordance with sections 404 and 409 of SMCRA and Sec. Sec. 874.12 and 
875.12 of this chapter, and in accordance with the priorities stated in 
section 403 of SMCRA and Sec. 874.13 of this chapter.
    (c) You may use grant funds as established in this chapter for each 
type of funds you receive in your AML grant. You may use State share 
funds as provided in Sec. 872.16 of this chapter; Tribal share funds as 
in Sec. 872.19 of this chapter; historic coal funds as in Sec. 872.23 
of this chapter; minimum program make up funds as in Sec. 872.28 of 
this chapter; prior balance replacement funds as in Sec. 872.31 of this 
chapter; and Federal expense funds as in Sec. 872.25 of this chapter 
and in the appropriation.
    (d) You may use grant funds for acquisition of land or interests in 
land, and any mineral or water rights associated with the land, for up 
to 90 percent of the costs.
    (e) You may use grant funds only for costs which are allowable as 
determined by OMB cost principles in Circular A-87.



Sec. 886.13  What are the maximum grant amounts?

    (a) You may apply at any time for a grant of any or all of the 
program funds that are available to you.
    (b) We will not award an amount greater than the total funds 
distributed to your State or Indian tribe in the current annual fund 
distribution, less any previous awards of current year funds, plus any 
funds distributed to you in previous years but not awarded, plus any 
unexpended funds recovered from previous grants and made available to 
you under Sec. 886.20 of this chapter.
    (c) Funds for the current fiscal year are available for award after 
the annual fund distribution described in Sec. 872.13 of this chapter.
    (d) Whenever you request it, we will give you information on the 
amounts and types of funds that are currently available to you.



Sec. 886.14  How long will my grant be?

    (a) We approve a grant period on the basis of the information 
contained in the grant application showing that projects to be funded 
will fulfill the objectives of SMCRA and the approved reclamation plan.
    (b) The grant period is normally for 3 years.
    (c) We may extend the grant period at your request. We normally 
approve one extension for up to one additional year.
    (d) The grant period for funding your administrative costs does not 
normally exceed the first year of the grant.
    (e) We award grants containing State or Tribal share funds 
distributed to you in Fiscal Years 2008, 2009, or 2010 for a budget 
period of five or three years at your request.

[[Page 461]]



Sec. 886.15  How do I apply for a grant?

    (a) You must use application forms and procedures specified by OSM.
    (b) We approve or disapprove your grant application within 60 days 
of receipt.
    (c) If we do not approve your application, we inform you in writing 
of the reasons for disapproval. We may propose modifications if 
appropriate. You may resubmit the application or appropriate revised 
portions of the application. We process the revised application as an 
original application.
    (d) You must agree to carry out activities funded by the grant in 
accordance with SMCRA, applicable Federal laws and regulations, and 
applicable OMB and Treasury Circulars.
    (e) We do not require complete copies of plans and specifications 
for projects either before the grant is approved or at the start of the 
project. However, after the start of the project, we may review your 
plans and specifications at your office, the project site, or any other 
appropriate site.



Sec. 886.16  After OSM approves my grant, what responsibilities do I have?

    (a) When we award your grant, we send you a written grant agreement 
stating the terms of the grant.
    (b) After you are awarded a grant, you may assign functions and 
funds to other Federal, State, or local agencies. However, we will hold 
you responsible for the overall administration of that grant, including 
the proper use of funds and reporting.
    (c) The grant award constitutes an obligation of Federal funds. You 
accept the grant and its conditions once you initiate work under the 
agreement or draw down awarded funds.
    (d) Although we have approved the grant agreement, you must not 
expend any construction funds until you receive a written authorization 
to proceed with reclamation on the individual project. Our Authorization 
to Proceed ensures that both you and we have taken all actions necessary 
to ensure compliance with the National Environmental Policy Act of 1969 
(NEPA) (42 U.S.C. 4321 et seq.) and any other applicable laws, 
clearances, permits, or requirements.
    (e) You must enter coal problems in the AML inventory before you 
expend funds on design or construction activities for a site. We must 
approve any amendments to the AML inventory made after December 20, 
2006. For purposes of this section, we define ``amendment'' as any coal 
problem added to the AML inventory in a new or existing problem area and 
any Priority 3 coal problem in the AML inventory that is elevated to 
either Priority 1 or Priority 2 status.
    (1) For emergency projects conducted under section 410 of SMCRA, our 
finding that an emergency condition exists constitutes our approval for 
the abandoned mine lands problem to be entered into the AML inventory.
    (2) We must approve amendments to the AML inventory for non-
emergency coal problems before you, the State or Indian tribe, begin 
project development or design or use funds for construction activities. 
In projects where development and design is minimal, this approval may 
occur during the Authorization to Proceed process.
    (f) To the extent technologically and economically feasible, you 
must use fuel other than petroleum or natural gas for all public 
facilities that are planned, constructed, or modified in whole or in 
part with abandoned mine land grant funds.
    (g) You must not expend more funds than we have awarded. Our award 
of any grant does not commit or obligate the United States to award any 
continuation grant or to enter into any grant revision, including grant 
increases to cover cost overruns.



Sec. 886.17  How can my grant be amended?

    (a) A grant amendment is a change of the terms or conditions of the 
grant agreement. An amendment may be initiated by you or by us.
    (b) You must promptly notify us in writing, or we must promptly 
notify you in writing, of events or proposed changes that may require a 
grant amendment.
    (c) All procedures for grant amendments follow 43 CFR part12.
    (d) We must approve or disapprove the amendment within 30 days of 
receiving your request.

[[Page 462]]



Sec. 886.18  What audit and administrative requirements must I meet?

    (a) You must comply with the audit requirements of the OMB Circular 
A-133.
    (b) You must follow administrative procedures governing grant 
payments, property, and related requirements contained in 43 CFR part12.



Sec. 886.19  How must I account for grant funds?

    You must do all of the following in accordance with the requirements 
of 43 CFR part12:
    (a) Accurately and timely account for grant funds;
    (b) Adequately safeguard all funds, property, and other assets and 
assure that they are used solely for authorized purposes;
    (c) Provide a comparison of actual amounts spent with budgeted 
amounts for each grant;
    (d) Request any cash advances as closely as possible to the actual 
time of the disbursement; and
    (e) Design a systematic method to assure timely and appropriate 
resolution of audit findings and recommendations.



Sec. 886.20  What happens to unused funds from my grant?

    (a) If there are any unexpended funds after your grant is completed, 
we deobligate the funds when we close your grant. We treat unused funds 
as follows:
    (1) We transfer any State share funds under Sec. 872.14 of this 
chapter or Tribal share funds under Sec. 872.17 that were not expended 
within three years of the date they were awarded in a grant, except five 
years for funds awarded in Fiscal Years 2008, 2009, and 2010, to 
historic coal funds, Sec. 872.21 of this chapter. We distribute any 
funds transferred to historic coal in the next annual distribution in 
the same way as historic coal funds from fee collections during that 
fiscal year.
    (2) We hold any unused Federal expense funds under Sec. 872.24 of 
this chapter for distribution to any State or Indian tribe as needed for 
the activity for which the funds were appropriated.
    (3) We make unused funds of all other types available for re-award 
to the same State or Indian tribe to which they were originally 
distributed. This includes historic coal funds under Sec. 872.21 of 
this chapter, minimum program make up funds under Sec. 872.26 of this 
chapter, and prior balance replacement funds under Sec. 872.29 of this 
chapter.
    (b) If you have any State share funds or Tribal share funds that 
were distributed to you in an annual distribution under Sec. 872.15 or 
Sec. 872.18 of this chapter but that were not awarded to you in grant 
within 3 years of the date they were distributed, or 5 years for funds 
distributed in Fiscal Years 2008, 2009, and 2010, we transfer the 
unawarded funds to the historic coal fund under Sec. 872.21 of this 
chapter and distribute them in the next annual distribution.



Sec. 886.21  What must I report?

    (a) For each grant, you must annually report to us the performance 
and financial information that we specify.
    (b) Upon completion of each grant, you must submit to us final 
performance, financial, and property reports, and any other information 
that we specify.
    (c) When you complete each reclamation project, you must update the 
AML inventory.



Sec. 886.22  What records must I maintain?

    You must maintain complete records in accordance with 43 CFR part12. 
Your records must support the information you reported to us. This 
includes, but is not limited to, books, documents, maps, and other 
evidence. Accounting records must document procedures and practices 
sufficient to verify:
    (a) The amount and use of all Title IV funds received; and
    (b) The total direct and indirect costs of the reclamation program 
for which you received the grant.



Sec. 886.23  What actions can OSM take if I do not comply with the terms of my 

grant?

    (a) If you, or your subgrantee, fail to comply with the terms of 
your grant, we may take one or more of the following remedial actions, 
as appropriate in the circumstances:

[[Page 463]]

    (1) Temporarily withhold cash payments pending your correction of 
the deficiency;
    (2) Disallow (that is, deny both use of Federal funds and matching 
credit for non-Federal funds) all or part of the cost of the activity or 
action not in compliance;
    (3) Wholly or partly reduce, suspend or terminate the current award 
for your program;
    (4) Withhold further grant awards for the program; or
    (5) Take other remedies that may be legally available.
    (b) If we terminate your State regulatory administration and 
enforcement grant, provided under part735 of this chapter, for failure 
to implement, enforce, or maintain an approved State regulatory program 
or any part thereof, we will terminate the grant awarded under this 
Part. This paragraph does not apply to the States of Missouri or 
Tennessee under section 402(g)(8)(B) of SMCRA, or to the Navajo, Hopi 
and Crow Indian tribes under section 405(k) of SMCRA.
    (c) If you fail to enforce the financial interest provisions of 
part705 of this chapter, we will terminate the grant.
    (d) If you fail to submit reports required by this part or part 705 
of this chapter, we take appropriate remedial actions. We may terminate 
the grant.
    (e) If you fail to submit a reclamation plan amendment as required 
by Sec. 884.15 of this chapter, we may reduce, suspend, or terminate 
all existing AML grants in whole or in part or may refuse to process all 
future grant applications.
    (f) If you are not in compliance with all Federal statutes relating 
to nondiscrimination, including but not limited to the following, we 
will terminate the grant:
    (1) Title VI of the Civil Rights Act of 1964, Public Law 88-352, 78 
Stat. 252 (42 U.S.C. 2000d et seq.). ``Nondiscrimination in Federally 
Assisted Programs,'' which provides that no person in the United States 
shall on the grounds of race, color, or national origin be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any program or activity receiving Federal financial 
assistance, and the implementing regulations in 43 CFR part 17.
    (2) Executive Order 11246, as amended by Executive Order 11375, 
``Equal Employment Opportunity,'' requiring that employees or applicants 
for employment not be discriminated against because of race, creed, 
color, sex, or national origin, and the implementing regulations in 40 
CFR part 60.
    (3) Section 504 of the Rehabilitation Act of 1973, Public Law 93-
112, 87 Stat. 355 (29 U.S.C. 794), as amended by Executive Order 11914, 
``Nondiscrimination with Respect to the Handicapped in Federally 
Assisted Programs.''



Sec. 886.24  What procedures will OSM follow to reduce, suspend, or terminate 

my grant?

    We will use the following procedures to reduce, suspend, or 
terminate your grant:
    (a) We must give you at least 30 days written notice of intent to 
reduce, suspend, or terminate a grant. An OSM official authorized to 
approve your grant must sign our notice of intent. We must send this 
notice by certified mail, return receipt requested. Our notice must 
include the reasons for the proposed action and the proposed effective 
date of the action.
    (b) We must give you opportunity for consultation and remedial 
action before we reduce or terminate a grant.
    (c) We must notify you in writing of the termination, suspension, or 
reduction of the grant. The notice must be signed by the authorized 
approving official and sent by certified mail, return receipt requested.
    (d) Upon termination, you must refund to us that remaining portion 
of the grant money not encumbered. However, you may retain any portion 
of the grant that is required to meet contractual commitments made 
before the effective date of termination.
    (e) You must not make any new commitments of grant funds after 
receiving notification of our intent to terminate the grant without our 
approval.
    (f) We may allow termination costs as determined by applicable 
Federal cost principles listed in OMB Circular A-87.

[[Page 464]]



Sec. 886.25  How can I appeal a decision to reduce, suspend, or terminate my 

grant?

    (a) Within 30 days of our decision to reduce, suspend, or terminate 
a grant, you may appeal the decision to the Director.
    (1) You must include in your appeal a statement of the decision 
being appealed and the facts that you believe justify a reversal or 
modification of the decision.
    (2) The Director must decide the appeal within 30 days of receipt.
    (b) Within 30 days of a decision by the Director to reduce, suspend, 
or terminate a grant, you may appeal the decision to the Department of 
the Interior's Office of Hearings and Appeals. You must include in the 
appeal a statement of the decision being appealed and the facts that you 
believe justify a reversal or modification of the decision.



Sec. 886.26  When and how can my grant be terminated for convenience?

    Either you or we may terminate or reduce a grant if both parties 
agree that continuing the program would not produce benefits worth the 
additional costs. We will handle a termination for convenience as an 
amendment to the grant to be approved by the OSM official authorized to 
approve your grant.



Sec. 886.27  What special procedures apply to Indian lands not subject to an approved Tribal reclamation program?

    (a) This section applies to Indian lands not subject to an approved 
Tribal reclamation program. The Director is authorized to mitigate 
emergency situations or extreme danger situations arising from past 
mining practices and begin reclamation of other areas determined to have 
high priority on such lands.
    (b) The Director is authorized to receive proposals from Indian 
tribes for projects that should be carried out on Indian lands subject 
to this section and to carry out these projects under parts 872 through 
882 of this chapter.
    (c) For reclamation activities carried out under this section on 
Indian lands, the Director shall consult with the Indian tribe and the 
Bureau of Indian Affairs office having jurisdiction over the Indian 
lands.
    (d) If a proposal is made by an Indian tribe and approved by the 
Director, the Tribal governing body shall approve the project plans. The 
costs of the project may be charged against Federal expense funds under 
Sec. 872.25 of this chapter.
    (e) Approved projects may be carried out directly by the Director or 
through such arrangements as the Director may make with the Bureau of 
Indian Affairs or other agencies.



PART 887_SUBSIDENCE INSURANCE PROGRAM GRANTS--Table of Contents



Sec.
887.1 Scope.
887.5 Definitions.
887.10 Information collection.
887.11 Eligibility for grants.
887.12 Coverage and amount of grants.
887.13 Grant period.
887.15 Grant administration requirements and procedures.

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

    Source: 51 FR 5493, Feb. 13, 1986, unless otherwise noted.



Sec. 887.1  Scope.

    This part sets forth the procedures for grants to you, a State or 
Indian tribe with an approved reclamation plan to establish, administer, 
and operate a self-sustaining individual State or Indian tribe 
administered program to insure private property against damages caused 
by land subsidence resulting from underground coal mining.

[73 FR 67647, Nov. 14, 2008]



Sec. 887.5  Definitions.

    As used in this part--
    Establishment--means either the development of a subsidence 
insurance program or the administration or operation of a subsidence 
insurance program.
    Private property--means any or all of the following: dwellings and 
improvements, commercial and industrial structures, utilities, 
underground structures such as sewers, pipes, wells and septic systems, 
sidewalks and driveways, and land.

[[Page 465]]

    Reclamation plan or State reclamation plan means a plan that a State 
or Indian tribe submitted and that we approved under section 405 of 
SMCRA and part 884 of this chapter.
    Self-sustaining means maintaining an insurance rate structure which 
is designed to be actuarially sound. Self-sustaining requires that State 
or Indian tribal subsidence insurance programs provide for recovery of 
payments made in settlement for damages from any party responsible for 
the damages under the law of the State or Indian tribe. Actuarial 
soundness implies that funds are sufficient to cover expected losses and 
expenses including a reasonable allowance for underwriting services and 
contingencies. Self-sustaining must not preclude the use of funds from 
other non-Federal sources.
    State or Indian tribe administered means administered either 
directly by a State or Indian tribe or for a State or Indian tribe 
through a State or Indian tribal authorized commission, board, 
contractor such as an insurance company, or other entity subject to 
State or Indian tribal direction.

[51 FR 5493, Feb. 13, 1986, as amended at 73 FR 67647, Nov. 14, 2008]



Sec. 887.10  Information collection.

    In accordance with 44 U.S.C. 3501 et seq., the OMB has approved the 
information collection requirements of part 887 and assigned it control 
number 1029-0107. This information is being collected to support State 
and Indian tribal grant requests for moneys for the establishment, 
administration, and operation of self-sustaining State or Indian tribal 
administered subsidence insurance programs. States and Indian tribes are 
required to respond to obtain a benefit in accordance with SMCRA. A 
Federal agency may not conduct or sponsor, and you are not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

[73 FR 67647, Nov. 14, 2008]



Sec. 887.11  Eligibility for grants.

    You are eligible for grants under this part if you are a State or 
Indian tribe with a reclamation plan approved under part 884 of this 
chapter. If you are uncertified, you must have State share funds 
available under Sec. 872.14 of this chapter or Tribal share funds 
available under Sec. 872.17 of this chapter. If you have certified 
completion of coal reclamation under section 411(a) of SMCRA, you must 
have certified in lieu funds available under Sec. 872.32 of this 
chapter, or prior balance replacement funds available under Sec. 872.29 
of this chapter if the State legislature or Tribal council has 
established this purpose.

[73 FR 67647, Nov. 14, 2008]



Sec. 887.12  Coverage and amount of grants.

    (a) You may use moneys granted under this part to develop, 
administer, and operate a subsidence insurance program to insure private 
property against damages caused by subsidence resulting from underground 
coal mining. The moneys may be used to cover your costs for services and 
materials according to OMB cost principles, Circular A-87. You may use 
eligible grant moneys to cover capitalization requirements and initial 
reserve requirements mandated by applicable State or Tribal law provided 
use of such moneys is consistent with the 43 CFR part 12.
    (b) You must submit a grant application under the procedures of part 
885 of this chapter for certified States and Indian tribes or part 886 
of this chapter for uncertified States or Indian tribes. Your 
application must include the following:
    (1) A narrative statement describing how the subsidence insurance 
program is ``State or Indian tribe administered''; and
    (2) A narrative statement describing how the funds requested will 
achieve a self-sustaining individual State or Indian tribe administered 
program to insure private property against subsidence resulting from 
underground coal mining.
    (c) Grants awarded to you under this part cannot exceed a cumulative 
total over the lifetime of the program of $3 million.
    (d) You may not use grant moneys from the Fund for lands that are 
ineligible for reclamation funding under Title IV of SMCRA.

[[Page 466]]

    (e) Insurance premiums must be considered program income and must be 
used to further eligible subsidence insurance program objectives in 
accordance with 43 CFR part 12.

[73 FR 67647, Nov. 14, 2008]



Sec. 887.13  Grant period.

    The grant funding period must not exceed 8 years from the time we 
approve the grant. You must return any unexpended funds remaining at the 
end of any grant period to us according to 43 CFR part 12.

[73 FR 67647, Nov. 14, 2008]



Sec. 887.15  Grant administration requirements and procedures.

    The requirements and procedures for grant administration set forth 
in part 885 of this chapter for reclamation grants to certified States 
and Indian tribes or in part 886 of this chapter for reclamation grants 
to uncertified States and Indian tribes must be used for subsidence 
insurance funds in grants.

[73 FR 67647, Nov. 14, 2008]



                         SUBCHAPTER S [RESERVED]

[[Page 467]]



   SUBCHAPTER T_PROGRAMS FOR THE CONDUCT OF SURFACE MINING OPERATIONS 
  
                          WITHIN EACH STATE


PART 900_INTRODUCTION--Table of Contents



Sec.
900.1 Scope.
900.2 Objectives.
900.4 Responsibilities.
900.11 Organization of this subchapter.
900.12 State regulatory programs.
900.13 Federal programs and Federal coal exploration programs.
900.14 Abandoned mine land programs.
900.15 Federal lands program cooperative agreements.

    Authority: Secs. 102, 201, 405, 503, 504, 505 and 523 of Pub. L. 95-
87 (30 U.S.C. 1202, 1211, 1235, 1253, 1254, and 1273).

    Source: 48 FR 6334, Feb. 11, 1983, unless otherwise noted.



Sec. 900.1  Scope.

    This part sets forth the purpose and organization of parts 901-955 
of this subchapter.

[51 FR 19461, May 29, 1986]



Sec. 900.2  Objectives.

    The objective of this part is to provide an introduction to the 
synopsis of the approved State programs, the Abandoned Mined Lands 
Reclamation programs, the cross referencing provisions of Federal 
programs and the full texts of State and Federal cooperative agreements 
for regulation of mining on Federal lands. The introduction explains the 
content and authority of the permanent regulatory programs.



Sec. 900.4  Responsibilities.

    (a) Each State that has surface coal mining and reclamation 
operations or coal exploration activities on non-Federal, non-Indian 
lands must have either an approved State program or a promulgated 
Federal program as required by Title V of the Act and 30 CFR chapter 
VII, subchapter C. Approval of a State program and promulgation of a 
Federal program are described in the paragraphs below.
    (b) Under section 503 of the Act and 30 CFR parts 730, 731 and 732 a 
State in which there are coal exploration activities or surface mining 
and reclamation operations must submit a State program to the Secretary 
for approval if it wishes to assume exclusive regulatory jurisdiction on 
non-Federal and non-Indian lands within its borders. The State programs 
must meet the requirements of the Act and 30 CFR chapter VII, subchapter 
C.
    (c) Pursuant to section 504 of SMCRA and 30 CFR 736.11, OSM must 
promulgate and implement a Federal program in each State in which the 
Director reasonably expects coal exploration or surface coal mining and 
reclamation operations to exist on non-Federal and non-Indian lands at 
any time before June, 1985, and either: (1) The State does not submit a 
State program, (2) the Secretary of the Interior finally disapproves the 
program submitted by the State, or (3) the Secretary of the Interior 
withdraws approval of the State program.
    (d) Under section 405 of SMCRA and 30 CFR part 884, each State 
having within its borders coal mined lands eligible for reclamation 
under Title IV of SMCRA, may submit to the Secretary a State Reclamation 
Plan, demonstrating its capability for administering an abandoned mine 
reclamation program. Title IV provides that the Secretary may approve 
the plan once the State has an approved regulatory program under Title V 
of SMCRA. If the Secretary determines that a State has developed and 
submitted a program for reclamation and has the necessary State 
legislation to implement the provisions of Title IV, the Secretary shall 
grant the State exclusive responsibility and authority to implement the 
provisions of the approved plan. Section 405 of SMCRA (30 U.S.C. 1235) 
contains the requirements for State reclamation plans.
    (e) States with approved programs may enter into cooperative 
agreements with OSM in order to become the regulatory authority for coal 
mining on Federal lands, in accordance with 30 CFR chapter VII, 
subchapter D.

[[Page 468]]



Sec. 900.11  Organization of this subchapter.

    Parts 901 through 950 are reserved for each State alphabetically. 
The program applicable within each State is codified in the part for 
that State. In addition, part 955 establishes rules pursuant to part 850 
of this chapter for the training, examination and certification of 
blasters by OSM for surface coal mining operations in States with 
Federal programs and on Indian lands.

[51 FR 19461, May 29, 1986]



Sec. 900.12  State regulatory programs.

    (a) Upon approval of a State regulatory program the Secretary will 
publish a final rule to be codified under the applicable part number 
assigned to the State. The full text will not appear below. Notification 
of the approval of the program and the dates on which any amendments 
were submitted will appear. Also included below are the addresses of OSM 
Headquarters, field and State Regulatory Authority offices where copies 
of the State programs are available for inspection and copying.
    (b) Provisions of approved State regulatory programs or permits 
issued pursuant to an approved State regulatory program may be enforced 
by the Secretary or his authorized agents pursuant to sections 504(b) 
and 521 of the Act and part 842 of this chapter.



Sec. 900.13  Federal programs and Federal coal exploration programs.

    The rules for each Federal program and Federal coal exploration 
program are codified below under the assigned part for the particular 
State. Rules governing the training, examination and certification of 
blasters for surface coal mining operations in States with Federal 
programs are codified in part 955, and referenced by each Federal 
program.

[51 FR 19461, May 29, 1986]



Sec. 900.14  Abandoned mine land programs.

    Programs for reclamation of abandoned mine lands are codified under 
the applicable part for the State. The date of submittal and approval 
and the addresses at which copies of the program are available appear 
below in the applicable part for each State.



Sec. 900.15  Federal lands program cooperative agreements.

    The full text of any State and Federal cooperative agreement for the 
regulation of coal exploration and mining on Federal lands is published 
below under the applicable part. In addition, those requirements of a 
State program which are applicable on Federal lands in the State shall 
be specified.



PART 901_ALABAMA--Table of Contents



Sec.
901.1 Scope.
901.10 State regulatory program approval.
901.15 Approval of Alabama regulatory program amendments.
901.16 Required regulatory program amendments. [Reserved]
901.20 Approval of Alabama abandoned mine land reclamation plan.
901.25 Approval of Alabama abandoned mine land reclamation plan 
          amendments.
901.30 State-Federal cooperative agreement.

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



Sec. 901.1  Scope.

    This part contains all rules applicable only within Alabama that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[47 FR 22057, May 20, 1982]



Sec. 901.10  State regulatory program approval.

    The Secretary conditionally approved the Alabama regulatory program, 
as resubmitted on January 11, 1982, and clarified in a meeting with OSM 
on April 9, 1982, and in a letter to OSM on May 14, 1982, effective May 
20, 1982. He removed the last condition of program approval effective 
July 18, 1996. Copies of the approved program are available at:
    (a) Alabama Surface Mining Reclamation Commission, 1811 Second 
Avenue, 2nd Floor, P.O. Box 2390, Jasper, AL 35502.
    (b) Office of Surface Mining Reclamation and Enforcement, Birmingham 
Field Office, Barber Business Park, 135 Gemini Circle, Homewood, AL 
35209.

[64 FR 20165, Apr. 26, 1999]

[[Page 469]]



Sec. 901.15  Approval of Alabama regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
November 24, 1982....................  July 27, 1983..........  Recodification of ASMC Rules
August 29, 1983......................  March 2, 1984..........  Ala. Code 9-16-75, 79(1)(a), 87(d), 89(h)(2),
                                                                 90(b)(10)(b.1), 92(a)(4), 93(f), 94(a), (e), 95
                                                                 (f), 99(2), 105; ASMC Rules 880-X-: 2A-.06(xx),
                                                                 (yy), (fff), (www)(5), (kkkkkk)(1); 5A-
                                                                 .02(1)(i), .17(1)(n), .18, .36; 8C-.09; 8D-
                                                                 .05(1)(b), (4); 8E-.06(2), (5)(a); 8F-.07,
                                                                 .08(1)(d), (p), (2), .09(2)(e); 8G-.05(1)(b),
                                                                 (4); 8H-.06(2), (5)(a); 8I-.07(1)(d), (2), (p),
                                                                 .08(2)(e), .09; 8J-.09(4)(i), .11; 8K-
                                                                 .05(4)(a), .12(1)(a), (b); 8N-.07, (c), .08,
                                                                 .09, .13(d); 10A-.03; 10B-.06(a); 10C-.03, .30
                                                                 through .35, .34-4(e)(2), .64(3); 10D-.03, .28-
                                                                 32, .31-4(e)(2), .62(3); 10G-.01, .07(a); 10J;
                                                                 11C-.02(1)(b), (2)(b).
November 28, 1983....................  July 5, 1984...........  ASMC Rules 880-X-8C-.06; 10C-.13, .17, .20, .27,
                                                                 .36; 10D-.13, .17, .20, .25, .33; Ala. revised
                                                                 systems Ch. V, Sec.  731.14(f), (g)(9).
January 9, 1984......................  September 27, 1984.....  ASMC Rules 880-X-10C-.30(c); 10D-.28(3); 12A-.01
                                                                 through .08; and other items.
May 22, 1985.........................  July 19, 1985..........  ASMC Rules 880-X-2E.
April 2, 1985........................  December 3, 1985.......  Staffing levels.
May 7, 1986..........................  August 14, 1986........  Ala. Senate Bill 445.
May 20, 1986.........................  September 8, 1986......  ASMC Rules 880-X-2A-.06, 8J-.11.
November 22, 1989....................  February 5, 1991.......  ASMC Rules 880-X-2A-.06; 2B-.01; 7B-.07; 7D-.10;
                                                                 8A-.07; 8B-.06; 8C-.08; 8D-.08, .14; 8E-.05,
                                                                 .06, .10, .11; 8F-.08, .14, .18; 8G-.08, .14;
                                                                 8H-.05, .06, .10, .11; 8I-.07, .14, .18; 8J-
                                                                 .04, .08; 8K-.05 through .09, .11 through .16;
                                                                 8M-.07 through .12; 10B-.04, .05, .06; 10C-.08,
                                                                 .12, .14, .24, .26, .28, .37 through .49, .52
                                                                 through .56, .58 through .61, .63; 10D-.08,
                                                                 .12, .14, .23, .24, .26, .34 through .45, .48,
                                                                 .49, .52, .53, .54, .55, .57, .59, .60, .61;
                                                                 10F-.03; 10G; 10I-.04, .06; 11A-.04; 11B-.02;
                                                                 11C-.02; 11D-.10; 11E.
July 16, 1990........................  February 28, 1991......  ASMC Rules 880-X-2A-.07(1)(c); 2E-.01 through
                                                                 .11.
July 16, 1990........................  July 3, 1991...........  ASMC Rules 880-X-2A-.06, .07; 8B-.03; 8C-.01
                                                                 through .07, .09, .10; 8F-.11, .17, .19; 8I-
                                                                 .12, .17, .19; 8J-.08; 9A-.04; 9B-.04; 9C-.03,
                                                                 (7), .04; 9D-.02; 9E-.05; 10B-.01, 02, .06,
                                                                 .07; 10C-.17, .20, .62, .67 through .71; 10D-
                                                                 .17, .20, .56, .65 through .69; 10G-.05.
November 22, 1989, July 16, 1990,      May 11, 1992...........  ASMC Rules 880-X-2A-.06, .07(3); 6A-.06; 8D-.05,
 August 1, 1991.                                                 .06; 8G-.05, .06; 8I-.10; 8K-.10, .11, .17,
                                                                 .18; 10C-.40, .45, .62; 10D-.56, .58; 11C-.02.
June 23, 1993........................  October 21, 1993.......  ASMC Rules 880-X-8D-.05(8), .09(2); 8F-
                                                                 .08(2)(j); 8G-.05(8), .09(2); 8I-.07(2)(j),
                                                                 .16(1); 8K-.10(1)(a); 10C-.41(1); 10J-.03(f);
                                                                 12A-.07.
March 28, 1997.......................  December 22, 1997......  880-X-5A-.22(1)(a), (1)(b) and (2); 880-X-6A-
                                                                 .06(k); 880-X-7B-.07(5); 880-X-9E-.05(2) and
                                                                 (3); 880-X-10C-.23(2)(a), .36(13)(b) and
                                                                 (b)(1), (15)(b)(3), and (16)(a), .38(1)(d)
                                                                 through (1)(f), .40(3)(a); 880-X-10D-.33(13)(b)
                                                                 and (b)(1), (15)(b)(3), and (16)(a), .34(1)(d)
                                                                 through (1)(f), and .36(3)(a).
April 14, 1998.......................  July 6, 1998...........  Code of Ala. Sections 9-16-83(c) and (h); 9-16-
                                                                 91(e).
August 4, 1998.......................  December 4, 1998.......  880-X-2A-.06; .08; 880-X-6A-.06(d)3.; 880-X-8F-
                                                                 .08(1)(e), (l) and (o); .09(2)(d); .11(1),
                                                                 (1)(b) and (c), (2), (3)(c), (6); .20; 880-X-8H-
                                                                 .06(1)(e)3.(iv); 880-X-8I-.07(1)(e),(l) and
                                                                 (o); .10(1), (2), (2) (b), (g) and (h); .12(1),
                                                                 (1) (b) and (c), (2), (3)(c), (6); .20; 880-X-
                                                                 8J-.13; 880-X-8K-.10(2)(d), (3)(m); 880-X-8N-
                                                                 .07(c); .10; .13(1), (1) (c), (e) and (f),
                                                                 (2);880X-9D-.02(1)(c);880-X-10C-.17(1) (a) and
                                                                 (c), (3)(b); .20(1)(a), (d), (e), (f)1.,
                                                                 (i)2.(i) and (iii), (l), (3)(b)1. and 2.;
                                                                 .38(1); .54; .55; .62(3); 880-X-10D-.12(9);
                                                                 .17(1) (a) and (c), (3)(b); .20(1) (a), (d),
                                                                 (e), (f)1., (i)2. (i) and (iii), (l),
                                                                 (3)(b)1.and .2; .34(1); .56(3); .58; 880-X-10G-
                                                                 .03(2); .04(3)(b); 880-X-11B-.02 (8)(d), (9);
                                                                 880-X-11D-.11(1).
August 17, 1999......................  June 8, 2000...........  ASMCRA sections 9-16-91(e)(1), (e)(3), (e)(4);
                                                                 and (f).
April 11, 2000.......................  June 22, 2000..........  880-X-2A-.06; 880-X-2D-.04(1) and .06;880-X-8I-
                                                                 .08(2)(d);880-X-8I-.10(2)(h).
August 28, 2001......................  February 5, 2002.......  ASMC Rules 880-X-2A-.06; 7B-.06(a) through (g),
                                                                 .07 through .12; 8C-.05(1)(g), .06(2)(e); 8D-
                                                                 .08(3); and 8F-.14(1)(2).
October 17, 2002.....................  April 10, 2003.........  ASMC 880-X-1B; 880-X-6A-.06(g)2(ii)(I).
July 18, 2008........................  September 23, 2008.....  ASMC 880-X-8B-.07 and 880-X-11D-.06.
January 5, 2010......................  February 22, 2011......  ASMCRA sections 9-16-73; 9-16-74; 9-16-77; 9-16-
                                                                 78; 9-16-81(a) through (d) and (f); and 9-16-
                                                                 93(b) through (f).
October 28, 2010.....................  May 24, 2011...........  Sections 880-X-6A-.07, 880-X-6A-.08, and 880-X-
                                                                 12A-.09.
----------------------------------------------------------------------------------------------------------------


[[Page 470]]


[62 FR 9933, Mar. 5, 1997, as amended at 62 FR 66821, Dec. 22, 1997; 63 
FR 35807, July 1, 1998; 63 FR 66987, Dec. 4, 1998; 65 FR 36338, June 8, 
2000; 65 FR 38727, June 22, 2000; 67 FR 5207, Feb. 5, 2002; 68 FR 17548, 
Apr. 10, 2003; 73 FR 54681, Sept. 23, 2008; 76 FR 9646, Feb. 22, 2011; 
76 FR 30010, May 24, 2011]



Sec. 901.16  Required regulatory program amendments. [Reserved]



Sec. 901.20  Approval of Alabama abandoned mine land reclamation plan.

    The Secretary approved the Alabama abandoned mine land reclamation 
plan, as submitted on May 29, 1981, and revised on August 13, 1981, 
effective May 20, 1982. Copies of the plan are available at:
    (a) Alabama Department of Industrial Relations, 649 Monroe Street, 
Montgomery, AL 36131.
    (b) Office of Surface Mining Reclamation and Enforcement, Birmingham 
Field Office, Barber Business Park, 135 Gemini Circle, Homewood, AL 
35209.

[64 FR 20166, Apr. 26, 1999]



Sec. 901.25  Approval of Alabama abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
June 15, 1987........................  July 7, 1988...........  Alabama policies and procedures for land
                                                                 acquisition, management and disposal of
                                                                 property, and reclamation on private lands.
April 25, 1990.......................  August 31, 1990........  Emergency program.
June 26, 1992........................  January 12, 1993.......  Ranking and selection of AML projects.
October 1, 1993......................  June 30, 1994..........  Eligibility and definition of AML.
December 5, 1994.....................  August 15, 1995........  Ranking and selection of AML projects;
                                                                 administrative and management structure.
----------------------------------------------------------------------------------------------------------------


[62 FR 9934, Mar. 5, 1997]



Sec. 901.30  State-Federal cooperative agreement.

    The Governor of the State of Alabama and the Secretary of the 
Department of the Interior (Secretary) enter into a Cooperative 
Agreement (Agreement) to read as follows:

        Article I: Introduction, Purpose and Responsible Agencies

    A. Authority: This agreement is authorized by sectoin 523(c) of the 
Surface Mining Control and Reclamation Act of 1977 (the Act), 30 U.S.C. 
1273(c), which allows a State with a permanent regulatory program 
approved by the Secretary under 30 U.S.C. 1253, to elect to enter into 
an Agreement for State regulation of surface coal mining and reclamation 
operations on Federal lands. This Agreement provides for State 
regulation of surface coal mining and reclamation operations in Alabama 
subject to the Federal lands program (30 CFR parts 740-746), consistent 
with State and Federal Acts governing such activities, and the Alabama 
State Program (Program).
    B. Purpose: The purposes of this Agreement are to (a) foster 
Federal-State cooperation in the regulation of surface coal mining and 
reclamation operations; (b) minimize intergovernmental overlap and 
duplication; and (c) provide uniform and effective application of the 
Program on all lands in Alabama in accordance with the Act, the Program, 
and this Agreement.
    C. Responsible Administrative Agencies: The Alabama Surface Mining 
Commission (ASMC) shall be responsible for administering this Agreement 
on behalf of the Governor. The Office of Surface Mining (OSM) shall 
administer this Agreement on behalf of the Secretary.

                       Article II: Effective Date

    After it has been signed by the Secretary and the Governor, this 
Agreement shall be effective 30 days after publication in the Federal 
Register as a final rule. This

[[Page 471]]

Agreement shall remain in effect until terminated as provided in Article 
XI.

                        Article III: Definitions

    The terms and phrases used in this Agreement which are defined in 
the Act, 30 CFR 700, 701, and 740, the approved State Program and the 
State Act, and in the rules and regulations promulgated pursuant to 
those Acts, shall be given the meanings set forth in said definitions. 
Where there is a conflict between the above referenced State and Federal 
definitions, the definitions used in the approved State Program will 
apply, except in the case of a term which defines the Secretary's 
continuing responsibilities under the Act and other laws.

                        Article IV: Applicability

    In accordance with the Federal lands program in 30 CFR part 745, the 
laws, regulations, terms and conditions of the Program are applicable to 
lands in Alabama subject to the Federal lands program except as 
otherwise stated in this Agreement, the Act, 30 CFR 745.13, or other 
applicable laws or regulations.

                     Article V: General Requirements

    The Governor and the Secretary affirm that they will comply with all 
the provisions of this Agreement.
    A. Authority of State Agency: ASMC has and shall continue to have 
the authority under State law to carry out this Agreement.
    B. Funds: Upon application by ASMC and subject to appropriations, 
OSM shall provide the State with the funds to defray the costs 
associated with carrying out responsibilities under this Agreement as 
provided in section 705(c) of the Act and 30 CFR 735.16. Such funds 
shall cover the full cost of carrying out these responsibilities 
provided that such cost does not exceed the estimated cost the Federal 
government would have expended in regulating surface coal mining 
operations on Federal lands in Alabama in the absence of an agreement. 
If the State requests funds and sufficient funds have not been 
appropriated to OSM, OSM and the ASMC shall promptly meet to decide on 
appropriate measures that will insure that mining operations are 
regulated in accordance with the Program. If agreement cannot be 
reached, then either party may terminate the Agreement in accordance 
with 30 CFR 745.15. Funds provided to the State under this Agreement 
shall be adjusted in accordance with Office of Management and Budget 
Circular A-102, Attachment E.
    C. Reports and Records: ASMC shall make annual reports to OSM 
containing information with respect to compliance with the terms of this 
Agreement, pursuant to 30 CFR 745.12(d). Upon request, ASMC and OSM 
shall exchange information developed under this Agreement, except where 
prohibited by Federal law.
    OSM shall provide ASMC with a copy of any final evaluation report 
prepared concerning State administration and enforcement of this 
Agreement.
    D. Personnel: ASMC shall have the necessary personnel to fully 
implement this agreement in accordance with the provisions of the Act 
and the approved State Program.
    E. Equipment and Laboratories: ASMC will assure itself access to 
equipment, laboratories, and facilities with which all inspections, 
investigations, studies, tests, and analyses can be performed which are 
necessary to carry out the requirements of the Agreement.
    F. Permit Application Fees and Civil Penalties: The amount of the 
fee accompanying an application for a permit shall be determined in 
accordance with section 15 of the Alabama Surface Mining Control and 
Reclamation Act of 1981, Section 880-X-8B-.07 of the State regulations, 
and the applicable provisions of the State Program and Federal law. All 
permit fees and civil penalties collected from operations on Federal 
lands will be retained by the State and shall be deposited with the 
State Treasurer in the Alabama Surface Mining Fund. The financial status 
report submitted pursuant to 30 CFR 735.26 shall include the amount of 
fees collected during the prior State fiscal year.

            Article VI: Review of Permit Application Package

    A. Submission of Permit Application Package: ASMC and the Secretary 
shall require an operator proposing to conduct surface coal mining 
operations on Federal lands covered by this Agreement to submit a permit 
application package (PAP) in an appropriate number of copies to ASMC. 
ASMC shall furnish OSM with an appropriate number of copies of the PAP. 
The PAP shall be in the form required by ASMC and include any 
supplemental information required by OSM or the Federal land management 
agency. At a minimum, the PAP shall include the information necessary 
for ASMC to make a determination of compliance with the State Program 
and for the appropriate Federal agency to make a determination of 
compliance with applicable requirements of Federal laws and regulations 
for which it is responsible.
    B. Review Procedures Where Leased Federally-Owned Coal Is Not 
Involved:
    1. ASMC shall assume primary responsibility for the analysis, review 
and approval or disapproval of the permit application component of the 
PAP required by 30 CFR 740.13 for surface coal mining and reclamation 
operations under the Federal lands program in Alabama not requiring a 
mining plan under 30 CFR 746.11. ASMC shall be the

[[Page 472]]

primary point of contact for operators regarding decisions on the PAP 
and will be responsible for informing the applicant of determinations.
    2. Upon receipt of a PAP that involves surface coal mining and 
reclamation operations on Federal lands not containing leased Federal 
coal, ASMC shall (1) transmit a copy of the complete PAP to the Federal 
land management agency with a request for review pursuant to 30 CFR 
740.13(c)(4), and (2) provide OSM with a complete copy of the PAP and 
any additional information necessary to allow OSM to determine whether 
the operations are prohibited or limited by the requirements of section 
522(e) (1) or (2) of the Federal Act (30 U.S.C. 1272(e)) and 30 CFR part 
761 with respect to areas designated therein by Congress as unsuitable 
for mining. Except as specified by paragraph 5 of this article, ASMC 
shall be responsible for obtaining, in a timely manner, the views and 
determinations of any other Federal agencies with jurisdiction or 
responsibility over Federal lands affected by a PAP in Alabama.
    3. OSM will provide technical assistance to ASMC when requested if 
available resources allow and will process requests for determinations 
of compatibility and valid existing rights under 30 CFR part 761 
relating to areas designated by Congress under section 522(e)(1) or (2) 
as unsuitable for mining. OSM will be responsible for ensuring that any 
information OSM receives from an applicant is promptly sent to ASMC. OSM 
shall have access to ASMC files concerning mines on Federal lands. The 
Secretary reserves the right to act independently of ASMC to carry out 
his responsibilities under laws other than the Federal Act. A copy of 
all resulting correspondence with the applicant that may have a bearing 
on decisions regarding the PAP shall be sent to the State.
    4. ASMC shall review the PAP for compliance with the Program.
    5. Prior to making a decision on a PAP for proposed surface coal 
mining and reclamation operations for which there is no other concurrent 
Secretarial action that would trigger compliance with section 7 of the 
Endangered Species Act, 16 U.S.C. 1536, ASMC shall obtain the written 
concurrence of OSM regarding the effect the proposed operations would 
have on threatened and endangered species and critical habitat in the 
area affected by the proposed operations, and shall include in any 
permit that is issued for such operations any terms or conditions which 
OSM may require to avoid the likelihood of actions which would 
jeopardize the continued existence of any such species or result in the 
destruction or adverse modification of its critical habitat.
    6. The permit issued by ASMC shall incorporate any terms or 
conditions imposed by the Federal land management agency, including 
conditions relating to post-mining land use, and shall condition the 
initiation of surface coal mining and reclamation operations on 
compliance with the requirements of the Federal land management agency. 
After issuing the decision on the PAP, ASMC shall send a notice to the 
applicant, the Federal land management agency, and OSM with a copy of 
the permit and written findings.
    C. Review Procedures Where Leased Federally-Owned Coal is Involved:
    1. ASMC shall assume primary responsibility for the analysis, review 
and approval or disapproval of the permit application component of the 
PAP for surface coal mining and reclamation operations on Federal lands 
in Alabama where a mining plan is required by 30 CFR 746.11. OSM, as 
requested, shall assist the State in this analysis and review. The 
Department of the Interior (Department) shall concurrently carry out its 
responsibilities under the Mineral Leasing Act (MLA), the National 
Environmental Policy Act (NEPA), and other applicable Federal laws that 
cannot be delegated to the State. The Department shall carry out these 
responsibilities in accordance with the Federal lands program and this 
Agreement in a timely manner so as to avoid, to the extent possible, 
duplication of the responsibilities of the State as set forth in this 
Agreement and the Program. Responsibilities and decisions which can be 
delegated to the State under other applicable Federal laws may be 
specified in working agreements between OSM and the State without 
amendment to this Agreement. The Secretary will consider the information 
in the PAP and, where appropriate, make decisions required by the 
Federal Act, MLA, NEPA, and other Federal laws.
    2. ASMC will be the primary point of contact for operators regarding 
the review of the PAP, except on matters concerned exclusively with 43 
CFR parts 3480-3487, administered by the Bureau of Land Management 
(BLM). ASMC will be responsible for informing the applicant of all joint 
State-Federal determinations. The Secretary may act independently of the 
State to carry out responsibilities under laws other than the Federal 
Act or provisions of the Act not covered by the Program, and in 
instances of disagreement over the Act and the Federal lands program. 
ASMC shall send to OSM, copies of any correspondence with the applicant 
and any information received from the applicant regarding the mining 
plan including the operation and reclamation plan portion of the permit 
application. OSM shall send to ASMC copies of all independent 
correspondence with the applicant which may have a bearing on the PAP. 
As a matter of practice, OSM will not independently initiate contacts 
with applicants regarding completeness or deficiencies of the PAP with 
respect to matters covered by the Program.

[[Page 473]]

    3. ASMC shall assume the responsibilities listed in 30 CFR 740.4(c) 
(1), (2), (4), (5), and (6). OSM shall retain the responsibilities 
listed in 30 CFR 740.4(c)(3) and the exceptions specified in (c)(7) (i) 
through (vii). OSM shall assist the State in carrying out its 
responsibilities by:
    (a) Distributing copies of the PAP to, and coordinating the review 
of the PAP among, all Federal agencies which have responsibilities 
relating to decisions on the PAP. This shall be done in a manner which 
ensures timely identification, communication and resolution of issues 
relating to those Federal agencies' statutory requirements. OSM shall 
request that such other Federal agencies furnish their findings and any 
requests for additonal data to OSM within 45 calendar days of their 
receipt of the PAP.
    (b) Providing ASMC with the analyses and conclusions of other 
Federal agencies.
    (c) Addressing conflicts and difficulties of the other Federal 
agencies in a timely manner.
    (d) Assisting in scheduling joint meetings as necessary between 
State and Federal agencies.
    (e) Where OSM is assisting ASMC in reviewing the permit application, 
furnish the State with the work product within 45 calendar days of 
receipt of the State's request for such assistance, or earlier if 
mutually agreed upon by OSM and the State.
    (f) Exercising its responsibilities in a timely manner as set forth 
in a mutually agreed upon schedule, governed to the extent possible by 
the deadlines established in the Program.
    (g) Assuming all responsibility for ensuring compliance with any 
Federal lessee protection bond requirement.
    4. Review of the PAP:
    (a) OSM and ASMC shall coordinate with each other during the review 
process as needed. ASMC shall keep OSM informed of findings during the 
review process which bear on the responsibilities of other Federal 
agencies. OSM shall ensure that any information OSM receives which has a 
bearing on decisions regarding the PAP is promptly sent to ASMC.
    (b) The State shall review the PAP for compliance with the Program.
    (c) OSM shall review the PAP for compliance with the Act and the 
requirements of other Federal laws and regulations. OSM and ASMC shall 
develop a work plan and schedule for PAP review and each shall identify 
a person as the project leader. The OSM project leader shall serve as 
the primary point of contact between OSM and ASMC throughout the review 
process. Not later than 50 days after receipt of the PAP, OSM shall 
furnish ASMC with its preliminary findings on the PAP and specify any 
requirements for additional data. To the extent practicable, the State 
shall provide OSM all available information that may aid OSM in 
preparing any findings.
    (d) ASMC shall provide to OSM written findings indicating whether 
the PAP is in compliance with the Program, and a technical analysis of 
the PAP.
    (e) ASMC may proceed to issue a permit in accordance with the 
Program prior to the necessary Secretarial decision on the mining plan, 
provided that ASMC advises the operator in the permit that Secretarial 
approval of a mining plan must be obtained before the operator may 
conduct surface coal mining operations on Federal lands. ASMC shall 
reserve the right to amend or rescind any requirements of the approved 
permit to conform with any terms or conditions imposed by the Secretary 
in his approval of the mining plan.
    5. Prior to acting on a permit revision or renewal, ASMC shall 
consult with OSM on whether such revision or renewal constitutes a 
mining plan modification under 30 CFR 746.18. OSM shall inform the State 
within 30 days of receiving notice of a proposed revision or renewal, 
whether any permit revision or renewal constitutes a mining plan 
modification. Permit revisions which do not constitute mining plan 
modifications shall be approved solely by the State.
    OSM may establish criteria consistent with 30 CFR 746.18 to 
determine which permit revisions and renewals clearly do not constitute 
mining plan modifications. If such criteria are promulgated, revisions 
or renewals which do not constitute mining plan modifications in 
accordance with the criteria may be approved by ASMC before it submits 
copies of the revision or renewal to OSM.

                        Article VII: Inspections

    A. ASMC shall conduct inspections on Federal lands and prepare and 
file inspection reports in accordance with the Program.
    B. ASMC shall, subsequent to conducting any inspection, and on a 
timely basis, file with OSM a legible copy of the completed State 
inspection report.
    C. ASMC shall be the point of contact and primary inspection 
authority in dealing with the operator concerning operations and 
compliance with the requirements covered by the Agreement, except as 
described hereinafter. Nothing in this Agreement shall prevent 
inspections by authorized Federal or State agencies for purposes other 
than those covered by this Agreement. The Department may conduct any 
inspections necessary to comply with 30 CFR parts 842 and 843 and its 
obligations under laws other than the Act.
    D. OSM shall ordinarily give the ASMC reasonable notice of its 
intent to conduct an inspection under 30 CFR 842.11 in order to provide 
State inspectors with an opportunity

[[Page 474]]

to join in the inspection. When OSM is responding to a citizen complaint 
of an imminent danger to the public health and safety, or of 
significant, imminent environmental harm to land, air or water 
resources, pursuant to 30 CFR 842.11(b)(1)(ii)(C), it will contact ASMC 
no less than 24 hours prior to the Federal inspection, if practicable, 
to facilitate a joint Federal/State inspection. All citizen complaints 
which do not involve an imminent danger or significant imminent 
environmental harm shall be referred to ASMC for action. The Secretary 
reserves the right to conduct inspections without prior notice to ASMC 
to carry out his responsibilities under the Federal Act.

                        Article VIII: Enforcement

    A. ASMC shall have primary enforcement authority under the Act 
concerning compliance with the requirements of this Agreement and the 
Program. Enforcement authority given to the Secretary under other laws 
and orders, including but not limited to those listed in appendix A, is 
reserved to the Secretary.
    B. During any joint inspection by OSM and ASMC, ASMC shall have 
primary responsibility for enforcement procedures, including issuance of 
orders of cessation, notices of violation, and assessment of penalties. 
The ASMC shall inform OSM prior to issuance of any decision to suspend 
or revoke a permit.
    C. During any inspection made solely by OSM or any joint inspection 
where the ASMC and OSM fail to agree regarding the propriety of any 
particular enforcement action, OSM may take any enforcement action 
necessary to comply with 30 CFR parts 843 and 845. Such enforcement 
actions shall be based on the standards in the approved Program, the 
Act, or both, and shall be taken using the procedures and penalty system 
contained in 30 CFR parts 843 and 845.
    D. The ASMC and the Department shall promptly notify each other of 
all violations of applicable laws, regulations, orders, or approved 
mining permits subject to this Agreement, and of all actions taken with 
respect to such violations.
    E. Personnel of the State and representatives of the Department 
shall be mutually available to serve as witnesses in enforcement actions 
taken by either party.
    F. This Agreement does not limit the Department's authority to 
enforce violations of Federal law which establish standards and 
requirements which are authorized by laws other than the Act.

                            Article IX: Bonds

    A. ASMC and the Secretary shall require each operator covered by the 
Federal lands program to submit a single performance bond payable to 
Alabama and the United States to cover the operator's responsibilities 
under the Federal Act and the Program. Such performance bond shall be 
conditioned upon compliance with all requirements of the Federal Act, 
the Program and any other requirements imposed by the Department or the 
Federal land management agency. Such bond shall provide that if this 
Agreement is terminated, the bond shall be payable only to the United 
States to the extent that lands covered by the Federal lands program are 
involved.
    B. Prior to releasing the operator from any obligation under such 
bond, the ASMC shall obtain the concurrence of OSM. The ASMC shall also 
advise OSM of annual adjustment to the performance bond, pursuant to the 
Program. Departmental concurrence shall include coordination with other 
Federal agencies having authority over the lands involved.
    Such bond shall be subject to forfeiture with the consent of OSM, in 
accordance with the procedures and requirements of the Program.
    C. Submission of a performance bond does not satisfy the 
requirements for a Federal lease bond required by 30 CFR subpart3474 or 
lessee protection bond required in addition to a performance bond, in 
certain circumstances, by section 715 of the Act.

Article X: Designating Land Areas Unsuitable for All or Certain Types of 
                     Surface Coal Mining Operations

    A. When either ASMC or OSM receives a petition to designate lands 
areas unsuitable for all or certain types of surface coal mining 
operations that could impact adjacent Federal and non-Federal lands, the 
agency receiving the petition shall (1) notify the other of receipt and 
the anticipated schedule for reaching a decision; and (2) request and 
fully consider data, information and views of the other.
    B. Authority to designate State and private lands as unsuitable for 
mining is reserved to the State. Authority to designate Federal lands as 
unsuitable for mining is reserved to the Secretary.

            Article XI: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

           Article XII: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or in part it may be 
reinstated under the provisions of 30 CFR 745.16.

[[Page 475]]

            Article XIII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIV: Changes in State or Federal Standards

    A. The Department or the State may from time to time promulgate new 
or revised performance or reclamation requirements or enforcement and 
administration procedures. Each party shall, if it determines it to be 
necessary to keep this Agreement in force, change or revise its 
regulations and request necessary legislative action. Such changes shall 
be made under the procedures of 30 CFR part 732 for changes to the State 
Program and under the procedures of section 501 of the Act for changes 
to the Federal lands program.
    B. ASMC and the Department shall provide each other with copies of 
any changes to their respective laws, rules, regulations and standards 
pertaining to the enforcement and administration of this Agreement.

            Article XV: Changes in Personnel and Organization

    Each party to this Agreement shall notify the other, when necessary, 
of any changes in personnel, organization and funding or other changes 
that will affect the implementation of this Agreement to ensure 
coordination of responsibilities and facilitate cooperation.

                   Article XVI: Reservation of Rights

    In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that have 
not been expressly addressed in this Agreement that the State or 
Secretary may have under other laws or regulations, including but not 
limited to those listed in appendix A.

    Dated: July 16, 1985.
    Signed:
                                                      George C. Wallace,
                                                    Governor of Alabama.
    Dated: June 28, 1985.
    Signed:
                                                         Ann McLaughlin,
                                        Under Secretary of the Interior.

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations including 43 CFR parts 3480-3487.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations, including 40 CFR part 1500.
    4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations, including 50 CFR part 402.
    5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR part 800.
    6. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    7. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    8. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    9. The Reservoir Salvage Act of 1960, amended by the Preservation of 
Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et seq.
    10. Executive Order 1593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    11. Executive Order 11988 (May 24, 1977), for flood plain 
protection. Executive Order 11990 (May 24, 1977), for wetlands 
protection.
    12. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
    13. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
    14. The Constitution of the United States.
    15. The Constitution of the State and State Law.

[50 FR 30921, July 30, 1985]



PART 902_ALASKA--Table of Contents



Sec.
902.1 Scope.
902.10 State regulatory program approval.
902.15 Approval of Alaska regulatory program amendments.
902.16 Required program amendments
902.20 Approval of Alaska abandoned mine land reclamation plan.
902.25 Approval of Alaska abandoned mine land reclamation plan 
          amendments.

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



Sec. 902.1  Scope.

    This part contains all rules applicable only within Alaska that have 
been adopted under the Surface Mining Control and Reclamation Act of 
1977.

[48 FR 12889, Mar. 23, 1983]



Sec. 902.10  State regulatory program approval.

    The Alaska State program as submitted on July 23, 1982, and as 
amended and clarified on December 13, 1982, and January 11, 1983, is 
approved effective May 2, 1983. Beginning on that date,

[[Page 476]]

the Alaska Department of Natural Resources shall be deemed the 
regulatory authority in Alaska for all surface coal mining and 
reclamation operations and all exploration operations on non-Federal and 
non-Indian lands. Only surface coal mining and reclamation operations on 
non-Federal and non-Indian lands shall be subject to the provisions of 
the Alaska permanent regulatory program. Copies of the approved program 
are available at the following addresses:
    (a) Department of Natural Resources, Division of Mining and Water 
Management, 3601 C Street, Suite 800, Anchorage, AK 99503-5925, 
Telephone: (907) 762-2149.
    (b) Office of Surface Mining Reclamation and Enforcement, Western 
Regional Coordinating Center, Technical Library, 1999 Broadway, Suite 
3320, Denver, Colorado 80202-5733.

[60 FR 33724, June 29, 1995, as amended at 60 FR 54593, Oct. 25, 1995]



Sec. 902.15  Approval of Alaska regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
November 12, 1983....................  December 23, 1983......  Redesignation of title 11, Ch 90 of the AAC.
May 28, 1985, November 16, 1986,       February 22, 1988......  11 AAC 90.065(b), .077(d), .331(a)(3), .461(f),
 February 24, 1987.                                              .601 (d) through (g), .625, .627(a), (b),
                                                                 .751(a), .907(d), (g); Articles 15 through 17.
February 2, 1990.....................  August 19, 1992........  11 AAC 90.021(c), .023(a)(1), (2), (3), (b)(1),
                                                                 (2), .025(a)(1), (2), (b), (c), .041(a), (b),
                                                                 .043(b), (c), .045(b)(4), .057, .071(2)(D),
                                                                 .077(b)(5), (11), (d), .081(a)(1), (2), (3),
                                                                 (b), (c), .085(a)(1), (2), (3)(A) through (E),
                                                                 (4), (b)(3), (4), (c)(3), (4), (5)(A) through
                                                                 (D), .089(a), (c), .099(a), .101(c)(1), (2)(A)
                                                                 through (F), (3)(A), (B), (C), (4), (5)(A),
                                                                 (B), (6), .119(d), (e), .121(c), .125(a)(7)
                                                                 through (13), .127(4), (5)(A), (B), (C), (6),
                                                                 .129 (a)(6), (7), (8), .141(a)(1), .163(a)(2)
                                                                 (A) through (G), (b)(2), (3), (c)(1), (2),
                                                                 (3)(A), (B), .173(a)(1), (2), (3), .175(4)(D),
                                                                 .181(a)(5)(A), (B), (6), .185(a)(3), (4), (5),
                                                                 .207(c)(5)(C), .213(g), (h), .323(a) through
                                                                 (d), .325(b), (c), (d)(1), (2), (3), (g)(3),
                                                                 .327(b)(2), .331(b)(1), (2), (3), (c), (d)(2),
                                                                 (3), (4), (e), (f), (g), .333, .336(a), (b)(1),
                                                                 (2), (c)(1) through (9), (d)(1), (2), (3), (e),
                                                                 (f), .337(a), (b), (c)(1) through (7), (d),
                                                                 (e), (g), .338(1) through (7), .343, .345(a),
                                                                 (b)(1) through (5), (c), (d), (e)(1) through
                                                                 (6), (f) through (i), .349(2)(A), .353(a)(1),
                                                                 (2), (3), .371(d)(1) through (4), .373(b), (c),
                                                                 (d), .375(b), (e) through (h), .379(b), (c),
                                                                 (e) through (j), .381(a), (b), .391(b), (e),
                                                                 (g), (i), (k), (l), (m)(1) through (6), (n),
                                                                 (o), (p)(3) through (7), (q), (r), .395(a)(1)
                                                                 through (5), (b), .397(a), (b), (c)(1) through
                                                                 (5), (d) through (g), .399, .401(a), (b)(1),
                                                                 (2), (3), (c), (d), (e), .403, .405, .407(a)
                                                                 through (d), (f) through (i), .409, .435,
                                                                 .441(a), (b), (c), .443(a), (b), (c)(1)(A)
                                                                 through (F), (e)(2), (3), (4), (f) through (k),
                                                                 .451(b)(1), (5), .455(1) through (4), .457(b),
                                                                 (c)(5), .635(a), (b)(1), (2), (c), (d)(1), (2),
                                                                 (3), (e)(1), (2), (3), (f), (g), (h), .703(e),
                                                                 .705(a) through (e), .901(c), .907(b), (i),
                                                                 .911(18) through (21), (51), (110), (118),
                                                                 (122).
January 26, 1995.....................  September 17, 1996.....  11 AAC 05.010(a)(11)(D), 90.002, .003, .011,
                                                                 .025(a), (b), (c), .045(a), .049(2), (D)
                                                                 through (H), .083(b)(10), (11), (12), (3), (b),
                                                                 (c), .097, .099, .149(d), (1), .163(a), (b),
                                                                 (1), (c), (3)(B), (4), (5), .207(f)(1), (2),
                                                                 (4) through (7), .337(f), .345(e), .375,
                                                                 .391(b), (h), .401(e), .407(e), .409, .423(b),
                                                                 (h), .443(d)(1), (k), .491(a), (1), (6), (7),
                                                                 (8), (c)(4) through (8), (e), (f), .901(e),
                                                                 .907(c) through (h), (j).
December 12, 1996....................  March 31, 1997.........  11 AAC 90.207(f) (3) and (8).
July 30, 1998........................  February 22, 1999......  11 AAC 90.002(a), (b), and (c), and 90.011(a)
                                                                 concerning permitting requirements, 90.025(a),
                                                                 (b), and (c) concerning permit application
                                                                 requirements; 90.045(a), 90.049(a), 90.083(b),
                                                                 and 90.097 concerning environmental resource
                                                                 requirements; 90.149(d) concerning alluvial
                                                                 valley floors; 90.163(a) and (d) concerning
                                                                 exploration; 90.207(f) concerning self-bonding;
                                                                 90.337(f) concerning impoundment inspections;
                                                                 90.375(f) concerning blasting; 90.391(h) and
                                                                 (s), 90.401(e), and 90.407(e) concerning coal
                                                                 mine waste; 90.423(b) and (h) concerning fish
                                                                 and wildlife; 90.443(d) and (k) concerning
                                                                 backfilling and grading; 90.491(e) and (f)
                                                                 concerning roads; 90.901(e) concerning
                                                                 termination of jurisdiction; 90.907(c) and (j)
                                                                 concerning public availability of information;
                                                                 and 90.911(92) concerning the definition of
                                                                 ``road.''

[[Page 477]]

 
May 11, 2004.........................  November 29, 2005......  11 AAC 90.043(b); 90.045(a), (b), (c), (d), and
                                                                 (e); 90.057; 90.085(a)(5) and (c);
                                                                 90.089(a)(1); 90.101(a) and (b); 90.173(a)(2),
                                                                 (b)(2) and (3); 90.179(a)(3), (b)(1) through
                                                                 (4) and (c); 90.185(a)(4) and (5); 90.201(d)
                                                                 and (f); 90.211(a); 90.331(d)(1); deletion of
                                                                 90.311(g); 90.321(e); 90.323(a) through (c);
                                                                 90.325(b) and (c); 90.327(b)(2); 90.331(e) and
                                                                 (h); 90.336(a), (b)(1) and (2), and (g);
                                                                 90.337(a); 90.345(e); 90.349(l); 90.375(f) and
                                                                 (g); 90.391(b), (c), (h)(2), (l), and (n);
                                                                 90.395(a); 90.397(a); 90.401(a), (d), and (e);
                                                                 90.407(c) and (f); 90.443(a), (k)(2), (i), and
                                                                 (m); 90.447(c)(1); 90.461(b), (g), (h) and (i);
                                                                 90.491(f)(1), (3) and (4); 90.601(h) and (i);
                                                                 90.629(a); 90.631(a); 90.635(a) and (b);
                                                                 90.637(a) and (b); 90.639(a) through (c);
                                                                 90.641(a) through (d); 90.650 through 90.658;
                                                                 90.701(a), (b), (c)(1) and (2), and (d)(1) and
                                                                 (2); 90.901(a)(2); and 90.911.
----------------------------------------------------------------------------------------------------------------


[62 FR 9934, Mar. 5, 1997, as amended at 62 FR 15117, Mar. 31, 1997; 64 
FR 8514, Feb. 22, 1999; 70 FR 71394, Nov. 29, 2005]



Sec. 902.16  Required program amendments

    Pursuant to 30 CFR 732.17(f)(1), Alaska is required to submit to OSM 
by the specified date the following written, proposed program 
amendments, or a description of an amendment to be proposed that meets 
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with Alaska's established administrative or 
legislative procedures.
    (a) By October 19, 1992, Alaska shall amend its program as follows:
    (1) At 11 AAC 90.023(f)(3) by providing ownership and control 
regulations to meet the requirements of OSM's May 11, 1989, 30 CFR 732 
notification.
    (2)-(13) [Reserved]
    (14) At 11 AAC 90.457(c)(3) to require consultation with, and 
approval by the State forestry and wildlife agencies with regard to the 
minimum planting and stocking arrangements for areas to be developed for 
fish and wildlife habitat, recreation, shelter belts, or forest products 
postmining land use as required at 30 CFR 816.116(b)(3)(i).
    (15) To resubmit standards for revegetation success per the 
requirement at 30 CFR 816.116(a)(1).
    (16)-(17) [Reserved]
    (b) [Reserved]

[57 FR 37423, Aug. 19, 1992, as amended at 61 FR 48842, Sept. 17, 1996; 
62 FR 15117, Mar. 31, 1997; 64 FR 8514, Feb. 22, 1999; 70 FR 71394, Nov. 
29, 2005]



Sec. 902.20  Approval of Alaska abandoned mine land reclamation plan.

    The Alaska Reclamation Plan, as submitted on August 17, 1983, is 
approved effective December 23, 1983. Copies of the approved plan are 
available at:
    (a) Department of Natural Resources, Division of Mining and Water 
Management, 3601 C Street, Suite 800, Anchorage, AK 99503-5925, 
Telephone: (907)762-2149.
    (b) Office of Surface Mining Reclamation and Enforcement, Western 
Regional Coordinating Center, Technical Library, 1999 Broadway, Suite 
3320, Denver, Colorado 80202-5733.

[60 FR 33724, June 29, 1995, as amended at 60 FR 54593, Oct. 25, 1995]



Sec. 902.25  Approval of Alaska abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original Amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
May 28, 1992.........................  November 16, 1992......  Emergency response reclamation program.
----------------------------------------------------------------------------------------------------------------


[62 FR 9935, Mar. 5, 1997]

[[Page 478]]



PART 903_ARIZONA--Table of Contents



Sec.
903.700 Arizona Federal program.
903.701 General.
903.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
903.707 Exemption for coal extraction incident to government-financed 
          highway or other construction.
903.736 Permit fees.
903.761 Areas designated unsuitable for surface coal mining by act of 
          Congress.
903.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
903.764 Process for designating areas unsuitable for surface coal mining 
          operations.
903.772 Requirements for coal exploration.
903.773 Requirements for permits and permit processing.
903.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
903.775 Administrative and judicial review of decisions.
903.777 General content requirements for permit applications.
903.778 Permit applications--Minimum requirements for legal, financial, 
          compliance, and related information.
903.779 Surface mining permit applications--Minimum requirements for 
          information on environmental resources.
903.780 Surface mining permit applications--Minimum requirements for 
          reclamation and operation plan.
903.783 Underground mining permit applications--Minimum requirements for 
          information on environmental resources.
903.784 Underground mining permit applications--Minimum requirements for 
          reclamation and operation plan.
903.785 Requirements for permits for special categories of mining.
903.795 Small operator assistance program.
903.800 Bond and insurance requirements for surface coal mining and 
          reclamation operations under regulatory programs.
903.815 Performance standards--Coal exploration.
903.816 Performance standards--Surface mining activities.
903.817 Performance standards--Underground mining activities.
903.819 Special performance standards--Auger mining.
903.822 Special performance standards--Operations in alluvial valley 
          floors.
903.823 Special performance standards--Operations on prime farmland.
903.824 Special performance standards--Mountaintop removal.
903.827 Special performance standards--Coal preparation plants not 
          located within the permit area of a mine.
903.828 Special performance standards--In situ processing.
903.842 Federal inspections.
903.843 Federal enforcement.
903.845 Civil penalties.
903.846 Individual civil penalties.
903.955 Certification of blasters.

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

    Source: 60 FR 18716, Apr. 12, 1995, unless otherwise noted.



Sec. 903.700  Arizona Federal program.

    (a) This part establishes a Federal program under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA) and applies to all coal 
exploration and surface coal mining and reclamation operations in 
Arizona conducted on non-Federal and non-Indian lands. To the extent 
required by 30 CFR part 740, this part also applies to surface coal 
mining and reclamation operations on Federal lands in Arizona.
    (b) Some rules in this part cross-reference pertinent parts of the 
permanent program rules in this chapter. The full text of a cross-
referenced rule is in the permanent program rule cited under the 
relevant section of the Arizona Federal program.
    (c) The following provisions of Arizona law generally provide for 
more stringent environmental control and regulation of some aspects of 
surface coal mining and reclamation operations than do the provisions of 
the Surface Mining Control and Reclamation Act of 1977, and the 
regulations in this chapter. Therefore, pursuant to section 505(b) of 
the Act, OSM will not generally construe such laws to be inconsistent 
with the Act, unless in a particular instance OSM determines that the 
rules in this chapter establish more stringent environmental or land use 
controls:
    (1) The Arizona Department of Agriculture has authority to abate 
public nuisances, including noxious weeds and noxious weed seeds, under 
A.R.S. section 3-231 to 3-242. Violation of this statute is a 
misdemeanor.
    (2) It is unlawful to injure any bird or harass any bird upon its 
nest or remove the nests or eggs of any bird without prior authorization 
of the Arizona Game and Fish Commission. A.R.S. section 17-236.

[[Page 479]]

    (3) A bridge, dam, dike or causeway may not be constructed over or 
in a navigable river or other navigable water without the authorization 
of the Governor. A.R.S. Section 18-301.
    (4) The Department of Mineral Resources has jurisdiction over the 
mining of minerals, and oil and gas under Title 27 of the Arizona 
Revised Statutes. One of the functions of that Department is the 
prevention and elimination of hazardous dust conditions. A.R.S. Section 
27-128. Violation of orders of State mine inspectors respecting dust 
prevention and control is a misdemeanor.
    (5) Roads leading into waste dump areas and tailing areas from 
inhabited or public areas are required to be blocked off and warning 
signs posted on the perimeter of such areas. A.R.S. Section 27-317.
    (6) The primary responsibility for the control and abatement of air 
pollution rests with the Arizona Department of Environmental Quality and 
its Hearing Board. The Department is responsible for the establishment 
and enforcement of air pollution emission standards and ambient air 
quality standards as a part of a comprehensive air quality plan for 
Arizona. A.R.S. Title 49.
    (7) The Arizona Department of Water Resources has jurisdiction over 
State water, including ``surface waters.'' ``Surface waters'' means 
``the waters of all sources, flowing in streams, canyons, ravines or 
other natural channels, or in definite underground channels, whether 
perennial or intermittent, flood, waste or surplus water, and of lakes, 
ponds and springs on the surface. For the purposes of administering this 
title, surface water is deemed to include Central Arizona Project 
Water.'' A.R.S. Section 45-101. It is a misdemeanor to knowingly use the 
water of another, or divert water from a stream, waste water or obstruct 
water flowing into a water work. A.R.S. Section 45-112. Possession of 
water lawfully denied to the possessor is prima facie evidence of one's 
guilt. A.R.S. Section 45-112. If water is to be used for mining purposes 
the water rights may be severed from the land rights and transferred 
separately. The separation and transference of water rights is subject 
to numerous limitations, under A.R.S. Section 45-172.
    (8) Dams are defined as ``any artificial barrier, including 
appurtenant works for the impounding or diversion of water except those 
barriers for the purpose of controlling liquid borne material, twenty-
five feet or more in height or the storage capacity of which will be 
more than fifty acre feet, but does not include any such barrier which 
is or will be less than six feet in height, regardless of storage 
capacity, or which has or will have a storage capacity not in excess of 
fifteen acre feet, regardless of height.'' A.R.S. Section 45-701. The 
construction, operation, repair or alteration of any dam without the 
prior approval of the Director of Water Resources is a misdemeanor. 
A.R.S. Section 45-702 to Section 45-716.
    (d) Any Arizona law or regulation which may be found to interfere 
with the purposes and achievements of the Act, shall be preempted and 
superseded to the extent that the State law or regulation is 
inconsistent with, or precludes implementation of, requirements of the 
Act or this chapter under the Federal program for Arizona. The Director 
shall publish a notice to that effect in the Federal Register following 
the procedures set forth in Sec. 730.11(a) of this chapter.
    (e) The information collection requirements contained in this part 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 in its approval of the information collection requirements 
contained in the permanent regulatory program.



Sec. 903.701  General.

    (a) Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and part 
701 of this chapter apply to coal exploration and surface coal mining 
and reclamation operations in Arizona.
    (b) Beginning on May 12, 1995, each surface coal mining and 
reclamation operation in Arizona must comply with Subchapter B of this 
chapter until issuance of a permanent program permit under the 
provisions of Subchapter C of this chapter.
    (c) Records required by Sec. 700.14 of this chapter to be made 
available locally to the public shall be made available in the county 
recorder's office of the

[[Page 480]]

county in which an operation is located, and at the OSM Albuquerque 
Field Office.



Sec. 903.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, applies to any person who conducts 
coal extraction incidental to the extraction of other minerals for 
purposes of commercial use or sale.



Sec. 903.707  Exemption for coal extraction incident to government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, applies to surface 
coal mining and reclamation operations.



Sec. 903.736  Permit fees.

    Section 736.25 of this chapter, Permit fees applies to any person 
who makes application for a permit to conduct surface coal mining and 
reclamation operations in Arizona.



Sec. 903.761  Areas designated unsuitable for surface coal mining by act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, 
applies to surface coal mining operations.



Sec. 903.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, applies to surface coal mining 
operations.



Sec. 903.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to petitions, 
initial processing, hearing requirements, decisions, data base and 
inventory systems, public information, and regulatory responsibilities, 
applies to surface coal mining operations beginning June 24, 1996, one 
year after the effective date of this program.



Sec. 903.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
applies to any person who conducts coal exploration. For those 
applications where Sec. 772.12 of this chapter applies, the 
requirements of paragraphs (b) through (d) of this section shall apply 
in place of Sec. 772.12(c) (1) and (3) and Sec. 772.12(d)(1) of this 
chapter.
    (b) The applicant, upon receipt of notification from the regulatory 
authority of the submission of an administratively complete application 
for an exploration permit, must:
    (1) Publish one public notice of the filing in a newspaper of 
general circulation in the county of the proposed exploration area; and
    (2) Provide proof of this publication to the regulatory authority 
within one week of publication.
    (c) Any person having an interest which is or may be adversely 
affected, shall have the right to file written comments within 30 days 
after the notice is published.
    (d) The regulatory authority shall act upon an administratively 
complete application for a coal exploration permit and any written 
comments within 15 days from the close of the comment period unless 
additional time is necessary due to the number or complexity of the 
issues. The regulatory authority may approve a coal exploration permit 
only if based upon a complete and accurate application.



Sec. 903.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, applies to any person who applies for a permit for surface 
coal mining and reclamation operations.
    (b) The Secretary will coordinate, to the extent practicable, his/
her responsibilities under the following Federal laws with the relevant 
Arizona laws to avoid duplication:

[[Page 481]]



------------------------------------------------------------------------
              Federal law                           State law
------------------------------------------------------------------------
(1) Clean Water Act, as amended, 33      A.R.S Title 49, Art. 2, Sec 221-
 U.S.C. 1251 et seq.                      225; A.R.S Title 49, Art. 3,
                                          Sec 241-251; A.R.S Title 49,
                                          Art. 10, Sec 361-363; A.R.S
                                          Title 49, Art. 11, Sec 371-
                                          381.
(2) Clean Air Act, as amended, 42        A.R.S. Title 49.
 U.S.C. 7401 et seq.
(3) Resource Conservation and Recovery   A.R.S. Title 49, sections 921-
 Act, 42 U.S.C. 3251, et seq.             932.
(4) National Environmental Policy Act,   A.R.S. Title 49, section 104.
 42 U.S.C. 4321 et seq.
(5) Archeological and Historic           Arizona Antiquities Act--A.R.S.
 Preservation Act, 16 U.S.C. 469 et seq.  Title 41 secs. 821, 841-846,
                                          861, 862, 865, 1352.
(6) National Historic Preservation Act,  A.R.S. Title 13 Secs. 3702,
 16 U.S.C. 470 et seq.                    3702.1; Title 41 secs. 511,
                                          511.04, 821, 861, 862, 1352;
                                          Title 44 sec. 123.
(7) Section 208 of the Clean Water Act,  A.R.S. Sections 49-101, 201 and
 as amended, 33 U.S.C. 1251 et seq.       371.
(8) Endangered Species Act, 16 U.S.C.    A.R.S. Title 17 Section 231A.2
 1531 et seq.                             Arizona Admin. Code Title 18
                                          Chapter 10, Article 1.
(9) Fish and Wildlife Coordination Act,
 16 U.S.C. 661-667.
(10) Noise Control Act, 42 U.S.C. 4903.
(11) Bald Eagle Protection Act, 16       A.R.S. Title 17 Section 235.
 U.S.C. 668-668(d).
------------------------------------------------------------------------

    (c) No person may conduct coal exploration operations that result in 
removal of more than 250 tons of coal in one location or surface coal 
mining and reclamation operations:
    (1) Without a permit issued by the Secretary as required under 30 
CFR part 772 or 773; and
    (2) Without permits, leases and/or certificates required by the 
State of Arizona, including, but not limited to the following:
    (i) Municipal planning statutes (A.R.S. Section 9-461 to 9-462.01); 
County planning and zoning statutes (A.R.S. Sections 11-322 et seq., 11-
803, 11-808, 11-821);
    (ii) Statutes governing perfection and recordation of mining claims 
(A.R.S. Section 27-201 to 27-210);
    (iii) Statutes requiring mineral exploration permits (A.R.S. Section 
27-251 to 27-256);
    (iv) Solid waste and air pollution discharge permits, installation 
and operation permits required for equipment causing air pollution and 
water pollution discharge permits (A.R.S. Title 49);
    (v) Mineral prospecting permits for State lands (A.R.S. Section 37-
231);
    (vi) Permits for discharge into or use of State waters and permits 
for secondary use of reservoir waters (A.R.S. Title 45).
    (d) In addition to the requirements of part 773 of this chapter, the 
following permit application review procedures apply:
    (1) Any person applying for a permit must submit at least five 
copies of the application to OSM's Western Support Center (WSC) in 
Denver, Colorado.
    (2) WSC shall review an application for administrative completeness 
and acceptability for further review, and notify the applicant in 
writing of the findings. WSC may:
    (i) Reject a flagrantly deficient application, notifying the 
applicant of the findings;
    (ii) Request additional information required for completeness, 
stating specifically what information must be supplied; or
    (iii) Determine the application administratively complete and 
acceptable for further review.
    (3) When WSC determines the application to be administratively 
complete, it will notify the applicant. Upon such notification, the 
applicant must publish the public notice required by Sec. 773.6(a)(1) 
of this chapter.
    (4) A representative of WSC may visit the proposed permit area if 
necessary to determine whether the operation and reclamation plans are 
consistent with actual site conditions. WSC will provide the applicant 
advance notice of the time of the visit.
    (5) In determining the completeness of an application, WSC will 
consider whether the information provided in the application is adequate 
for OSM to comply with the National Environmental Policy Act, 42 U.S.C. 
4322. If necessary, WSC may require specific additional information from 
the applicant as any environmental review progresses.

[[Page 482]]

    (e) In addition to the information required by subchapter G of this 
chapter, WSC may require an applicant to submit supplemental information 
to ensure compliance with applicable Federal laws and regulations other 
than the Act and 30 CFR chapter VII.
    (f) In making a decision on an application, the regulatory authority 
shall review any written comments or objections it has received and the 
records of any informal conference or hearing it has held on the 
application. The regulatory authority shall issue a written decision in 
accordance with the timeframes in the following table:

------------------------------------------------------------------------
                                                       Then a written
           If * * *                 And * * *        decision shall be
                                                        issued * * *
------------------------------------------------------------------------
OSM has not prepared an EIS...  An informal        Within 60 days of the
                                 conference has     close of the comment
                                 not been held.     period.
OSM has not prepared an EIS...  An informal        Within 60 days of the
                                 conference has     conclusion of the
                                 been held.         informal conference
                                                    (unless additional
                                                    time is needed
                                                    because of the
                                                    number or complexity
                                                    of the issues).
OSM has prepared an EIS.......  .................  No earlier than 30
                                                    days after the
                                                    Environmental
                                                    Protection Agency
                                                    publishes the notice
                                                    of availability of
                                                    the final EIS in the
                                                    Federal Register.
------------------------------------------------------------------------

    (g) OSM will consider withholding information from public disclosure 
under Sec. 773.6(d) of this chapter if the applicant labels the 
information confidential and submits it separately from the rest of the 
application.
    (1) If the applicant submits information identified as confidential, 
the notice required by Sec. 773.6(a)(1) of this chapter shall state 
this and identify the type of information that the applicant has 
submitted.
    (2) OSM shall determine the qualification of any application 
information labeled confidential within 10 days of the last publication 
of the notice required under Sec. 773.6(a)(1) of this chapter, unless 
additional time is necessary to obtain public comment or in the event of 
unforeseen circumstances.

[60 FR 18716, Apr. 12, 1995, as amended at 65 FR 79671, Dec. 19, 2000]



Sec. 903.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, applies to any such actions 
involving surface coal mining and reclamation operations permits, except 
as specified in this section.
    (b) No revision to an approved mining or reclamation plan shall be 
effective until reviewed and approved by WSC.
    (c) Any significant revision to the approved mining or reclamation 
plan shall be subject to the public notice and hearing provisions of 
Sec. Sec. 903.773(d)(3) and 773.6(b) and (c) of this chapter before it 
is approved and implemented. Any revision to an approved reclamation 
plan that may have the potential to adversely affect the achievement of 
reclamation and the post-mining land use is a significant permit 
revision. In addition, WSC will consider the following factors, as well 
as other relevant factors, in determining the significance of a proposed 
revision:
    (1) Changes in production or recoverability of the coal resource;
    (2) Environmental effects;
    (3) Public interest in the operation, or likely interest in the 
proposed revision; and
    (4) Possible adverse impacts from the proposed revision on fish or 
wildlife, endangered species, bald or golden eagles, or cultural 
resources.
    (d) The regulatory authority will approve or disapprove non-
significant permit revisions within a reasonable time after receiving a 
complete and accurate revision application. Significant revisions and 
renewals shall be approved or disapproved under the provisions of Sec. 
903.773(f).
    (e) Any person having an interest that is or may be adversely 
affected by a decision on the transfer, assignment, or sale of permit 
rights, may submit written comments on the application to WSC. Comments 
may be submitted within 30 days of either the publication of the 
newspaper notice required by Sec. 774.17(b)(2) of this chapter, or 
receipt

[[Page 483]]

of an administratively complete application, whichever is later. For 
purposes of this paragraph, a person includes, but is not limited to an 
official of any Federal, State, or local government agency.
    (f) Within 30 days from the last publication of the newspaper 
notice, written comments or objections to an application for significant 
revision or renewal of a permit may be submitted to the regulatory 
authority by:
    (1) Any person having an interest that is or may be adversely 
affected by the decision on the application; or
    (2) Public entities notified under Sec. 773.6(a)(3) of this chapter 
of the proposed mining operations on the environment within their areas 
of responsibility.

[60 FR 18716, Apr. 12, 1995, as amended at 65 FR 79671, Dec. 19, 2000]



Sec. 903.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, applies to all decisions on permits.



Sec. 903.777  General content requirements for permit applications.

    (a) Part 777 of this chapter, General Content Requirements for 
Permit Applications, applies to any person who makes application for a 
permit to conduct surface coal mining and reclamation operations.
    (b) Any person who wishes to conduct surface coal mining and 
reclamation operations must file a complete application as early as 
possible before the date the permit is desired and pay to OSM a permit 
fee in accordance with Sec. 903.736.
    (c) Any person who wishes to revise a permit shall submit a complete 
application as early as possible before the desired approval date of the 
permit revision and shall pay a permit fee in accordance with 30 CFR 
777.17.



Sec. 903.778  Permit applications--Minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance, and Related Information, applies to 
any person who submits an application for a permit to conduct surface 
coal mining and reclamation operations.



Sec. 903.779  Surface mining permit applications--Minimum requirements for 

information on environmental resources.

    (a) Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, applies 
to any person who submits an application to conduct surface coal mining 
and reclamation operations.
    (b) Each permit application must include a map that delineates 
existing vegetative types and a description of the plant communities 
within the proposed permit area and within any proposed reference area.



Sec. 903.780  Surface mining permit applications--Minimum requirements for 

reclamation and operation plan.

    Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, applies to any 
person who submits an application to conduct surface coal mining and 
reclamation operations.



Sec. 903.783  Underground mining permit applications--Minimum requirements for 

information on environmental resources.

    (a) Part 783 of this chapter, Underground Mining Permit 
Applications--Minimum Requirements for Information on Environmental 
Resources, applies to any person who submits an application to conduct 
underground coal mining operations.
    (b) Each permit application must include a map that delineates 
existing vegetative types and a description of the plant communities 
within the proposed permit area and within any proposed reference area.



Sec. 903.784  Underground mining permit applications--Minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, applies to any 
person who

[[Page 484]]

submits an application to conduct underground coal mining operations.



Sec. 903.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for permits for Special 
Categories of Mining, applies to any person who submits an application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.



Sec. 903.795  Small operator assistance program.

    Part 795 of this chapter, Small Operator Assistance Program, applies 
to any person who submits an application for assistance under the small 
operator assistance program.



Sec. 903.800  Bond and insurance requirements for surface coal mining and 

reclamation operations under regulatory programs.

    (a) Part 800 of this chapter, Bond and Insurance Requirements for 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, applies to all surface coal mining and reclamation operations, 
except for Sec. 800.40(a)(1) of this chapter regarding the bond release 
application, for which paragraph (b) of this section substitutes.
    (b) The permittee may file an application with the regulatory 
authority for the release of all or part of a performance bond. The 
application must be filed no later than 30 days before the end of the 
vegetation growing season in order to allow time for the regulatory 
authority to properly evaluate the completed reclamation operations. The 
appropriate times or seasons for the evaluation of certain types of 
reclamation shall be identified in the mining and reclamation plan 
required in subchapter G of this chapter and approved by the regulatory 
authority.



Sec. 903.815  Performance standards--Coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, applies to any person who conducts coal exploration.



Sec. 903.816  Performance standards--Surface mining activities.

    (a) Part 816 of this chapter, Permanent Program Performance 
Standards--Surface Mining Activities, applies to any person who conducts 
surface mining activities, except Sec. 816.116(a)(1) of this chapter 
regarding revegetation success standards, for which paragraph (b) of 
this section substitutes.
    (b) Standards for success shall be those identified at Sec. 
816.116(a)(2) and (b) of this chapter. Statistically valid sampling 
techniques for measuring success shall be included in the mining and 
reclamation plan and approved by the regulatory authority.



Sec. 903.817  Performance standards--Underground mining activities.

    (a) Part 817 of this chapter, Permanent Program Performance 
Standards--Underground Mining Activities, applies to any person who 
conducts underground mining activities, except Sec. 817.116(a)(1) of 
this chapter regarding revegetation success standards, for which 
paragraph (b) of this section substitutes.
    (b) Standards for success shall be those identified at Sec. 
817.116(a)(2) and (b) of this chapter. Statistically valid sampling 
techniques for measuring success shall be included in the mining and 
reclamation plan and approved by the regulatory authority.



Sec. 903.819  Special performance standards--Auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, applies to any person who conducts surface coal 
mining operations that include auger mining.



Sec. 903.822  Special performance standards--Operations in alluvial valley 

floors.

    Part 822 of this chapter, Special Permanent Program Performance 
Standards--Operations in Alluvial Valley Floors, applies to any person 
who conducts surface coal mining and reclamation operations on alluvial 
valley floors.

[[Page 485]]



Sec. 903.823  Special performance standards--Operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, applies to any person who 
conducts surface coal mining and reclamation operations on prime 
farmland.



Sec. 903.824  Special performance standards--Mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, applies to any person who conducts 
surface coal mining and reclamation operations constituting mountaintop 
removal mining.



Sec. 903.827  Special performance standards--Coal preparation plants not 

located within the permit area of a mine.

    Part 827 of this chapter, Permanent Program Performance Standards--
Coal Preparation Plants Not Located Within the Permit Area of a Mine, 
applies to any person who conducts surface coal mining and reclamation 
operations which include the operation of a coal preparation plant not 
located within the permit area of a mine.



Sec. 903.828  Special performance standards--In situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, applies to any person who conducts 
surface coal mining and reclamation operations that include the in situ 
processing of coal.



Sec. 903.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, applies to all 
coal exploration and surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 842 of this chapter, OSM 
will furnish copies of inspection reports when requested by a designated 
Arizona State agency with jurisdiction over mining.



Sec. 903.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, applies regarding 
enforcement action on coal exploration and surface coal mining and 
reclamation operations.
    (b) In addition to the requirements of part 843 of this chapter, OSM 
will furnish copies of enforcement actions and orders to show cause, 
upon request, to a designated Arizona State agency with jurisdiction 
over mining.



Sec. 903.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, applies to the assessment 
of civil penalties for violations on coal exploration and surface coal 
mining and reclamation operations.



Sec. 903.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, applies to the 
assessment of individual civil penalties under section 518(f) of the 
Act.



Sec. 903.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, applies to the training, examination 
and certification of blasters for surface coal mining and reclamation 
operations.



PART 904_ARKANSAS--Table of Contents



Sec.
904.1 Scope.
904.10 State regulatory program approval.
904.12 State program provisions and amendments not approved.
904.15 Approval of Arkansas regulatory program amendments.
904.16 [Reserved]
904.20 Approval of Arkansas abandoned mine land reclamation plan.
904.25 Approval of Arkansas abandoned mine land reclamation plan 
          amendments.
904.26 Required plan amendments.

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



Sec. 904.1  Scope.

    This part contains all rules applicable only within Arkansas which 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[45 FR 77015, Nov. 21, 1980]

[[Page 486]]



Sec. 904.10  State regulatory program approval.

    The Secretary conditionally approved the Arkansas regulatory 
program, as submitted on February 18, 1980, amended on May 29, 1980, and 
July 2, 1980, and clarified on July 29, 1980, August 8, 1980, August 14, 
1980, and August 29, 1980, effective November 21, 1980. He fully 
approved the Arkansas regulatory program, as amended on September 2, 
1980, January 19, 1981, and March 12, 1981, effective January 22, 1982. 
Copies of the approved program are available at:
    (a) Arkansas Department of Environmental Quality, 8001 National 
Drive, P.O. Box 8913, Little Rock, AR 72219-8913.
    (b) Office of Surface Mining Reclamation and Enforcement, Tulsa 
Field Office, 5100 East Skelly Drive, Suite 470, Tulsa, OK 74135-6548.

[64 FR 20166, Apr. 26, 1999]



Sec. 904.12  State program provisions and amendments not approved.

    The following amendments to the Arkansas Surface Coal Mining and 
Reclamation Code as submitted to OSMRE on May 1, 1987, are hereby 
disapproved:
    (a) ASCMRC part 722, all revisions and additions which address 
surface coal mining and reclamation operations previously exempted under 
the 2-acre exemption rule of section 528 of SMCRA.
    (b) [Reserved]

[53 FR 9884, Mar. 28, 1988, as amended at 54 FR 47355, Nov. 14, 1989; 67 
FR 35029, May 17, 2002]



Sec. 904.15  Approval of Arkansas regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
December 7, 1983.....................  March 16, 1984.........  ASCMRC 771.25 (a)(2); 776(c)(1), (2), (4),
                                                                 (5)(i), (ii); 842(c).
May 21, 1985.........................  August 15, 1985........  ASCMRC 843.12; 845.18 through .20.
December 17, 1984....................  December 2, 1985.......  ASCMRC 816.61-S, -U, .62, .64, -U, .65, .67,
                                                                 .68; 850.1, .5, .12 through .15.
March 10, 1986.......................  March 28, 1988.........  ASCMRC 701.5; 761.12(b)(2), (e)(1), (2), (3);
                                                                 .15; 762.5; 764.13, .15(a)(1); 771.23(c)(4);
                                                                 776.12, (a)(3)(vi), .14(a); 778.14(c);
                                                                 779.14(a), (b)(1), .17; 780.18(b)(4), .21;
                                                                 784.20(a)(1), (2), (b)(1), (e); 785.13(e), (5),
                                                                 (i), (j), (k), .17(b)(1)(ii); 786.1(d), .11(a),
                                                                 .15(a)(4), .16(a), .17(a)(1), .19(d)(8),
                                                                 .29(c); 788.18(d); 795.13, .14(d)(4),
                                                                 .19(a)(5); 800.11(h), .13(g); 805.13(b),
                                                                 .14(a); 806.11(b), (d)(2)(v); 807.11(d)(2)(v);
                                                                 808.14(c); 815.15(a); 816.41(d), .42(a)(7),
                                                                 .43, .44(b)(3), .46, .49, .52(a)(4), .53,
                                                                 .55(d), .57(a)(2), .71 through .74, .79, .81,
                                                                 .83, .84, .87, .89, .97(b), (d)(10),
                                                                 .102(a)(2), (b), (f), .107, .111, .116, .126-
                                                                 U(a), (e), (f), .133(b)(1), .150, .151;
                                                                 819.11(c)(1), (2); 823.12(a)(1), .15;
                                                                 826.12(c); 827.11; 842.16(a); 843.11(a)(2),
                                                                 (3); 845.12(b), .13(b)(2), .15(b)(1)(i), (ii),
                                                                 (2); 1000(6), (10), (13), (16), (19), (51).
November 4, 1987.....................  June 1, 1988...........  ASCMRC 776.12(a)(3), (b); 780.31; 786.19(p).
December 22, 1988....................  November 14, 1989......  ASCMRC 705.11(a), .13(a), .15; 780.16(b)(3)(i),
                                                                 (ii), (c); 784.21; 816.97(b); 817.97; 846.1,
                                                                 .5, .12, .14, .18; 1000(50).
December 18, 1989....................  November 23, 1990......  ASCMRC 778.13(a), (5), (6), (7), (b), (1)
                                                                 through (5), (c), (g), (h), .14(c), (d);
                                                                 786.5(c), .17(c), (d), .19(i), .27(d), .30(a),
                                                                 (b), (c), .31(a), (b), (c); 843.11(g).
September 20, 1990...................  June 14, 1991..........  ASCMRC 700.10(d), part 702.
September 27, 1990...................  July 18, 1991..........  ASCMRC 700.10(a); 701.5; 776.11(b); 780.21(f),
                                                                 .37(f), (g), (h), .38; 784.27; 800.11(b)(2);
                                                                 815.15(c)(2), (3), (4), .17(a), (b);
                                                                 816.49(b)(7), (c)(2), .84(b)(2), (f),
                                                                 .116(b)(3), (c)(4), .117, .150 (b), (d), (f),
                                                                 .152(a), (c); 1000(d)(2), (8), (30) through
                                                                 (36), (44), (47).
October 11, 1991.....................  April 23, 1992.........  ASCMRC 816.116(c)(2).

[[Page 487]]

 
April 11, 1991, September 25, 1991...  August 19, 1992........  ASCMRC 701.5, .11(c)(1); 707.12; 761.5 defining
                                                                 VER and public roads; 764.15(a)(7); 770.5,
                                                                 .6(a), (b), (c); 771.23(e)(1), (2); 772;
                                                                 779.11, .12(a), (b), .15(a), .16(a), (b)(2),
                                                                 .17, .18(a), .20(a), .21(a), .22(a), (c),
                                                                 .24(g), (k), .25, .25(d) through (h), (j),
                                                                 .27(a), (b)(5), (d)(1), (2); 780.11, .14(b),
                                                                 (2), .18(b)(3), .23(b), .25(a), (b), .37(e);
                                                                 783.14(a) through (d); 785.16(a), .17(a), (b);
                                                                 786.5(b), .14(b)(3), .19(c); 788.13(b);
                                                                 805.13(d); 806.12(e)(6)(iii), (g)(7)(iii);
                                                                 808.12(c), .14(a), (b); 810.11; 815, .2(b),
                                                                 (c), .11(c), .15(a) through (d), (f) through
                                                                 (k); 816.13, .41(a), .43(e), .51-S(b),
                                                                 .52(a)(1), (2), .54, .65(f), .95(a), (b),
                                                                 .101(b)(1), .102(a), (g), .103, .104(a), (b),
                                                                 (3), .106, .107, .115, .133(c); 823.1, .14(c);
                                                                 826.12(b); 827.12(m); 828.11(e), .12(a);
                                                                 1000(d)(1), (3), (4), (5), (7), (9), (11),
                                                                 (12), (14), (15), (17), (18), (20) through
                                                                 (29), (37) through (43), (45), (46), (48),
                                                                 (49).
March 31, 1993.......................  November 17, 1994......  ACA 15-58-104(11), 503(a)(2)(A), (B), (C).
August 26, 1994......................  June 30, 1995..........  ASCMRA 4(18), (19), 5(b)(1), 13(k).
April 2, 1996........................  April 29, 1997.........  ASCMRC 700.10(b); 701.5; 771.25(b); 779.13; .15;
                                                                 .16; .17; .20; .22; .25(k); 780.21(f)(3)(v);
                                                                 .23; .25(a)(2) through (f); 783.13; .15; .16;
                                                                 .17; .20; .22; 784.14; .15; .16; .20; 785.25;
                                                                 786.17(c)(4); .19; 795.12; .13; .16; .17; .19;
                                                                 Parts 800, 805 through 808; 816.41(e);
                                                                 .46(a)(3), (b)(2), (c)(2); .49; .81(a), (c)(2),
                                                                 (3), (4); .82; .85; .86; .88; .89(d); .91; .92;
                                                                 .93; .112; .116(c)(2), (3), (4); .121-U(a), (c)
                                                                 through (g); .122-U; .124-U; .126-U; 827.12(g);
                                                                 842.11(c)(1) through (4); (d), (e), (f);
                                                                 842.14.
February 6, 1998.....................  September 16, 1998.....  ASCMRC 701.5; 761.5(d); 780.14(c); 780.18(b)(7),
                                                                 .25(a)(3)(i), .35(b); 785.15(b)-(c), .16(a),
                                                                 (c)(6), and (d), .17(d)(5); 815.15(k);
                                                                 816.11(g), .21, .22, .23, .24, .25, .43(e),
                                                                 (f)(5), .44(c), .46, .48(b), .56, .74, .102,
                                                                 .103, .104-S, .105-S, .106, .107(a)-(b); part
                                                                 823; part 826; 845.18(b) and .19(a).
August 27, 1998......................  November 25, 1998......  ASCMRC 701.5; 816.116(b)(1), (2), (3)(iv), (4),
                                                                 (5); Policy Guidelines for Phase III
                                                                 Revegetation Success Standards for Pasture and
                                                                 Previously Mined Areas, Cropland, Forest
                                                                 Products, Recreation and Wildlife Habitat,
                                                                 Industrial/Commercial and Residential
                                                                 Revegetation.
March 1, 2002........................  August 15, 2001........  Sections 761.5 definitions of ``valid existing
                                                                 rights'' & ``public buildings;'' 761.11-.15;
                                                                 761.16; 761.17; 761.200(a); 762.14-.15;
                                                                 764.15(a)(7); 776.12; 778.16(c); 780.31(a)(2);
                                                                 780.33; 780.37; 786.11(a)(4) & (a)(5);
                                                                 786.14(c); and 786.19(d)(1) & (d)(4)-(d)(8);
                                                                 regulatory authority name change to Arkansas
                                                                 Department of Environmental Quality; and
                                                                 recodification of the statutes to Arkansas Code
                                                                 Annotated Title 15, Chapter 58, Subchapters 1-
                                                                 5.
August 13, 2001......................  May 17, 2002...........  ASCMRC 845.18(a); Phase II and III Revegtation
                                                                 Success Standards for Grazingland; and Phase
                                                                 III Revegetation Success Standards for Prime
                                                                 Farmland.
----------------------------------------------------------------------------------------------------------------


[62 FR 9935, Mar. 5, 1997, as amended at 62 FR 23135, Apr. 29, 1997; 62 
FR 31474, June 9, 1997; 63 FR 49429, Sept. 16, 1998; 63 FR 65067, Nov. 
25, 1998; 66 FR 42742, Aug. 15, 2001; 67 FR 35029, May 17, 2002]



Sec. 904.16  [Reserved]



Sec. 904.20  Approval of Arkansas abandoned mine land reclamation plan.

    The Secretary approved the Arkansas abandoned mine land reclamation 
plan, as submitted on July 7, 1982, effective May 2, 1983. Copies of the 
approved plan are available at:
    (a) Arkansas Department of Environmental Quality, 8001 National 
Drive, P.O. Box 8913, Little Rock, AR 72219-8913.
    (b) Office of Surface Mining Reclamation and Enforcement, Tulsa 
Field Office, 5100 East Skelly Drive, Suite 470, Tulsa, OK 74135-6548.

[64 FR 20166, Apr. 26, 1999]



Sec. 904.25  Approval of Arkansas abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

[[Page 488]]



----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
March 31, 1993.......................  July 19, 1993..........  ACA 15-58-401(b), (c).
October 6, 1993......................  January 5, 1994........  ACA 15-58-401(b)(2).
April 2, 1996........................  April 29, 1997.........  ASCMRC 874.5; .12(a)(4) through (8).
June 16, 1999........................  September 20, 1999.....  Definitions; Purposes of the state reclamation
                                                                 program; Identification of eligible lands and
                                                                 water; Ranking and selection procedures;
                                                                 Coordination of reclamation work; Acquisition
                                                                 management and disposition of land and water;
                                                                 Reclamation on private land; Rights of entry;
                                                                 Public participation; Organizational structure;
                                                                 Personnel and staffing policies; Purchasing and
                                                                 procurement systems; Management accounting; and
                                                                 Abandoned mine land problem description.
September 22, 1999...................  January 14, 2000.......  Subheading B. Identification of Eligible Lands
                                                                 and Water [30 CFR 884.13(c)(2)].
August 13, 2001......................  May 17, 2002...........  ASCMRC 874.12(b)(4); 874.13(d); and
                                                                 874.14(a)(2).
----------------------------------------------------------------------------------------------------------------


[62 FR 9936, Mar. 5, 1997, as amended at 62 FR 23135, Apr. 29, 1997; 64 
FR 50756, Sept. 20, 1999; 65 FR 2332, Jan. 14, 2000; 67 FR 35029, May 
17, 2002]



Sec. 904.26  Required plan amendments.

    Pursuant to 30 CFR 884.15, Arkansas is required to submit for OSM's 
approval the following proposed plan amendment by the date specified.
    (a)-(b) [Reserved]

[59 FR 542, Jan. 5, 1994]



PART 905_CALIFORNIA--Table of Contents



Sec.
905.700 California Federal Program.
905.701 General.
905.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
905.707 Exemption for coal extraction incident to government-financed 
          highway or other construction.
905.761 Areas designated unsuitable for surface coal mining by act of 
          Congress.
905.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
905.764 Process for designating areas unsuitable for surface coal mining 
          operations.
905.772 Requirements for coal exploration.
905.773 Requirements for permits and permit processing.
905.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
905.775 Administrative and judicial review of decisions.
905.777 General content requirements for permit applications.
905.778 Permit applications--Minimum requirements for legal, financial, 
          compliance, and related information.
905.779 Surface mining permit applications--Minimum requirements for 
          information on environmental resources.
905.780 Surface mining permit applications--Minimum requirements for 
          reclamation and operation plan.
905.783 Underground mining permit applications--Minimum requirements for 
          information on environmental resources.
905.784 Underground mining permit applications--Minimum requirements for 
          reclamation and operation plan.
905.785 Requirements for permits for special categories of mining.
905.795 Small operator assistance program.
905.800 Bond and insurance requirements for surface coal mining and 
          reclamation operations under regulatory programs.
905.815 Performance standards--Coal exploration.
905.816 Performance standards--Surface mining activities.
905.817 Performance standards--Underground mining activities.
905.819 Special performance standards--Auger mining.
905.822 Special performance standards--Operations in alluvial valley 
          floors.
905.823 Special performance standards--Operations on prime farmland.
905.824 Special performance standards--Mountaintop removal.
905.827 Special performance standards--Coal preparation plants not 
          located within the permit area of a mine.
905.828 Special performance standards--In situ processing.
905.842 Federal inspections.
905.843 Federal enforcement.
905.845 Civil penalties.
905.846 Individual civil penalties.
905.955 Certification of blasters.

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

    Source: 53 FR 26575, July 13, 1988, unless otherwise noted.



Sec. 905.700  California Federal Program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in California which have been adopted under the 
Surface Mining Control and Reclamation Act of 1977.

[[Page 489]]

    (b) Certain of the rules in this part cross-reference pertinent 
parts of the permanent program regulations in this Chapter. The full 
text of a cross-referenced rule is in the permanent program rule cited 
under the relevant section of the California Federal program.
    (c) This part applies to all coal exploration and surface coal 
mining and reclamation operations in California conducted on non-Federal 
and non-Indian lands. To the extent required by 30 CFR part 740, this 
part also applies to operations on Federal lands in California.
    (d) The information collection requirements contained in this part 
have already been approved by the Office of Management and Budget under 
44 U.S.C. 3507 in its approval of the information collection 
requirements contained in the permanent regulatory program.
    (e) The following provisions of California law generally provide for 
more stringent land use and environmental control and regulation of some 
aspects of surface coal mining operations than do the provisions of the 
Surface Mining Control and Reclamation Act of 1977, and the regulations 
in this chapter. Therefore, pursuant to section 505(b) of SMCRA, these 
provisions shall not generally be considered to be inconsistent with 
SMCRA unless, in a particular instance, the Federal program regulations 
establish more stringent environmental or land use controls:
    (1) The California Environmental Quality Act, Cal. Pub. Res. Code 
section 21000 et seq. (West 1986).
    (2) The Porter-Cologne Water Quality Control Act, Cal. Water Code 
section 13000 et seq. (West 1971).
    (3) California Hazardous Waste Control Law, Cal. Health & Safety 
Code section 25100 et seq. (West 1984).
    (4) The State Underground Storage of Hazardous Substances Law, Cal. 
Health & Safety Code section 25280 et seq. (West 1984).
    (5) California Coastal Act of 1976, Cal. Pub. Res. Code Section 
30000 et seq. (West 1986).
    (6) The Z'berg-Nejedly Forest Practice Act of 1973, Cal. Pub. Res. 
Code section 4511 et seq. (West 1984).
    (7) Cal. Pub. Res. Code section 4656 (West 1984), requiring a permit 
for mining in State forests.
    (f) The following are the California laws that generally interfere 
with the achievement of the purposes and requirements of SMCRA and are, 
in accordance with section 504(g) of SMCRA, preempted and superseded. 
Other California laws may in an individual situation interfere with the 
purposes and achievements of SMCRA and may be preempted and superseded 
with respect to the performance standards of Sec. Sec. 905.815 through 
905.828 as they affect a particular coal exploration or surface mining 
operation by publication of a notice to that effect in the Federal 
Register.
    (1) The California Surface Mining and Reclamation Act of 1975, Cal. 
Pub. Res. Code section 2710 et seq. (West 1984), as it relates to coal 
mining, except to the extent that it regulates other activities that are 
not regulated by SMCRA.
    (2) Cal. Labor Code section 7990 et seq. (West Supp. 1988) 
(licensing of blasters), except as it applies to other activities that 
are not regulated by SMCRA.
    (3) California Solid Waste Management and Resource Recovery Act of 
1972, Cal. Gov. Code section 66770 et seq. (West 1983), except to the 
extent that it regulates other activities that are not regulated by 
SMCRA.



Sec. 905.701  General.

    (a) Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and part 
701 of this chapter shall apply to coal exploration and surface coal 
mining and reclamation operations in California.
    (b) Beginning on the effective date of this program, each surface 
coal mining and reclamation operation in California shall comply with 
subchapter B of this chapter until issuance of a permanent program 
permit under the provisions of subchapter C of this chapter.
    (c) Records required by Sec. 700.14 of this chapter to be made 
available locally to the public shall be made available in the OSMRE 
Albuquerque Field Office.

[[Page 490]]



Sec. 905.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of other minerals 
for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]



Sec. 905.707  Exemption for coal extraction incident to government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 905.761  Areas designated unsuitable for surface coal mining by act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply to surface coal mining operations.



Sec. 905.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface coal mining 
operations.



Sec. 905.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to petitions, 
initial processing, hearing requirements, decisions, data base and 
inventory systems, public information, and regulatory responsibilities 
shall apply to surface coal mining operations beginning one year after 
the effective date of this program.



Sec. 905.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts coal exploration. For 
applications where Sec. 772.12 applies, the requirements of paragraphs 
(b) through (d) apply in place of Sec. 772.12(c) (1) and (3) and Sec. 
772.12(d)(1).
    (b) Upon submission of an administratively complete application for 
an exploration permit, the applicant shall publish one public notice of 
the filing in a newspaper of general circulation in the county of the 
proposed exploration area, and provide proof of this publication to the 
regulatory authority within one week after the newspaper notice is 
published.
    (c) Any person having an interest which is or may be adversely 
affected, shall have the right to file written comments for 10 days 
after the advertisement appears in the newspaper.
    (d) The regulatory authority shall act upon an administratively 
complete application for a coal exploration permit and any written 
comments within 15 days from the close of the comment period. The 
approval of a coal exploration permit shall be based only on a complete 
and accurate application.



Sec. 905.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) The Secretary shall coordinate, to the extent practicable, his 
responsibilities under the following Federal laws with the relevant 
California State laws to avoid duplication:

------------------------------------------------------------------------
             Federal law                           State law
------------------------------------------------------------------------
(1) Clean Water Act, as amended, 33    The Porter-Cologne Water Quality
 U.S.C. 1251 et seq.                    Control Act, Cal. Pub. Res. Code
                                        section 13000 et seq. (West
                                        1971).
(2) Clean Air Act, as amended, 42      California Air Pollution Control
 U.S.C. 7401 et seq.                    Laws, Cal. Health & Safety Code
                                        section 39000 et seq. (West
                                        1986).
(3) Resource Conservation and          Hazardous Waste Control Law, Cal.
 Recovery Act, 42 U.S.C. 3251 et seq.   Health & Safety Code section
                                        25100 et seq. (West 1984); Solid
                                        Waste Mgmt. and Resource
                                        Recovery Act of 1972, Cal. Gov.
                                        Code section 66770 et seq. (West
                                        1983).
(4) National Environmental Policy      California Environmental Quality
 Act, 42 U.S.C. 4321 et seq.            Act (CEQA), Cal. Pub. Res. Code
                                        section 21000 (West 1986).

[[Page 491]]

 
(5) Archeological and Historic         CEQA.
 Preservation Act, 16 U.S.C. 469a.
(6) National Historic Preservation     CEQA.
 Act, 16 U.S.C. 470 et seq.
(7) Coastal Zone Management Act, 16    California Coastal Act of 1976,
 U.S.C. 1451, 1453-1464.                Cal. Pub. Res. Code section
                                        30000 et seq. (West 1986).
(8) Section 208 of the Clean Water     The Porter-Cologne Act.
 Act, as amended, 33 U.S.C. 1251 et
 seq.
(9) Endangered Species Act, 16 U.S.C.  California Endangered Species Act
 1531 et seq.                           of 1984, Cal. Fish & Game Code
                                        section 2060 et seq. (West Supp.
                                        1988).
(10) Fish and Wildlife Coordination
 Act, 16 U.S.C. 661-667
(11) Noise Control Act, 42 U.S.C.      California Noise Control Act of
 4903.                                  1973, Cal. Health & Safety Code
                                        section 46000 et seq. (West
                                        Supp. 1986).
(12) Bald Eagle Protection Act, 16
 U.S.C. 668-668(d)
------------------------------------------------------------------------

    (c) Where applicable, no person shall conduct coal exploration 
operations which result in the removal of more than 250 tons in one 
location or surface coal mining and reclamation operations without a 
permit issued by the Secretary pursuant to 30 CFR parts 772 and 773 and 
permits, leases and/or certificates required by the State of California, 
including compliance with the Porter-Cologne Water Quality Control Act, 
Cal. Pub. Res. Code section 13000 et seq.; the California Water Code 
section 1200 et seq.; the California Air Pollution Control Laws, Cal. 
Health & Safety Code section 39000 et seq.; the Hazardous Waste Control 
Law, Cal. Health & Safety Code section 25100 et seq.; the State 
Underground Storage of Hazardous Substances Law, Cal. Health & Safety 
Code section 25280 et seq.; the Solid Waste Management and Resource 
Recovery Act of 1972, Cal. Gov. Code section 66770 et seq.; the 
California Environmental Quality Act, Cal. Pub. Res. Code section 21000; 
the California Coastal Act of 1976, Cal. Pub. Res. Code section 30000 et 
seq.; the Z'berg-Nejedly Forest Practice Act of 1973, Cal. Pub. Res. 
Code section 4511 et seq.; and the California Public Resources Code 
section 4656.
    (d) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Western Field Operations office (WFO) in Denver, 
Colorado.
    (2) The WFO shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The WFO may:
    (i) Reject a flagrantly deficient application, notifying the 
applicant of the findings;
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) When the application is judged administratively complete, the 
applicant shall be advised by the WFO to file the public notice required 
by Sec. 773.6 of this chapter.
    (4) A representative of the WFO shall visit the proposed permit area 
to determine whether the operation and reclamation plans are consistant 
with actual site conditions. The applicant will be notified in advance 
of the time of the visit. At the time of the visit, the applicant shall 
have the locations of the proposed permit boundaries, topsoil storage 
areas, sediment control structures, roads, and other signficant features 
contained in the application marked by flags.
    (5) Adequacy of information to allow the WFO to comply with the 
National Environmental Policy Act, 42 U.S.C. 4332, and the National 
Historic Preservation Act, 16 U.S.C. 470 et seq., shall be considered in 
the determination of a complete application. The WFO may require 
specific additional information from the applicant as any environmental 
review progresses when such specific information is needed.
    (e) In addition to the information required by subchapter G of this 
chapter, the WFO may require an applicant to submit supplemental 
information to

[[Page 492]]

ensure compliance with applicable Federal laws and regulations other 
than the Act.
    (f) The regulatory authority shall review the application for a 
permit, written comments and objections submitted; and records of any 
informal conference or hearing held on the application and, where there 
is no environmental impact statement (EIS) and the WFO has found, 
pursuant to 36 WFO 800.4(d) and 800.5(b), that the operation will not 
affect historic properties, issue a written decision within 60 days from 
the close of the comment period or if an informal conference is held 
under Sec. 773.6(c), 60 days from the close of the informal conference. 
Where an EIS has been prepared for the application and/or the WFO must 
comply with 36 CFR 800.5 (d) or (e), the written decision shall be 
issued within 60 days from the Environmental Protection Agency's 
publication of the notice of availability of the final EIS in the 
Federal Register or the completion of OSMRE's responsibilities under 36 
CFR part 800, whichever is later.
    (g) Only application information that is labeled confidential by the 
applicant and submitted separately from the remainder of the application 
will be reviewed by OSMRE for withholding from disclosure under Sec. 
773.6(d).
    (1) If the application contains information identified as 
confidential by the applicant, the public notice required by Sec. 
905.773(d)(3) must identify the type of information considered to be 
confidential.
    (2) OSMRE shall determine in regard to qualification of any 
application information labeled confidential within 10 days of the last 
publication of the notice required under Sec. 905.773(d)(3) of this 
chapter, unless additional time is necessary to obtain public comment or 
in the event of unforeseen circumstances.

[60 FR 18716, Apr. 12, 1995, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 905.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits, except 
as specified below.
    (b) Any revision to the approved mining or reclamation plan will be 
subject to review and approval by the WFO. A significant revision to the 
reclamation plan will be subject to the public notice and hearing 
provisions of Sec. Sec. 905.773(d)(3) and 773.6 (b) and (c) prior to 
approval and implementation. A revision to the reclamation plan will be 
considered significant if it has the potential to adversely affect the 
achievement of reclamation as specified in the approved plan.
    (c) The regulatory authority will approve or disapprove non-
significant permit revisions within 30 days of receipt of the 
administratively complete revision. Significant revisions and renewals 
will be approved or disapproved under the provisions of Sec. 
905.773(f).
    (d) In addition to the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 30 
days of the publication of the newspaper advertisement required by Sec. 
774.17(b)(2) of this chapter, or receipt of an administratively complete 
application, whichever is later.
    (e) Within 30 days from the last publication of the newspaper 
notice, written comments or objections on an application for significant 
revision, or renewal of a permit under Sec. 774.15 of this chapter may 
be submitted to the regulatory authority by any person having an 
interest that is or may be adversely affected by the decision on the 
application, or by public entities notified under Sec. 773.6(a)(3) of 
this chapter with respect to the effects of the proposed mining 
operations on the environment within their areas of responsibility.

[60 FR 18716, Apr. 12, 1995, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 905.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.

[[Page 493]]



Sec. 905.777  General content requirements for permit applications.

    (a) Part 777 of this chapter, General Content Requirements for 
Permit Applications, shall apply to any person who makes application for 
a permit to conduct surface coal mining and reclamation operations.
    (b) Any person who wishes to conduct new surface coal mining and 
reclamation operations shall file a complete application as early as 
possible prior to the date permit issuance is desired and shall pay to 
the Secretary a permit fee in accordance with 30 CFR 777.17.
    (c) Any person who wishes to revise a permit shall submit a complete 
application as early as possible prior to the date approval of the 
permit revision is desired and to pay a permit fee in accordance with 30 
CFR 777.17.



Sec. 905.778  Permit application--Minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance, and Related Information, shall apply 
to any person who makes application for a permit to conduct surface coal 
mining and reclamation operations.



Sec. 905.779  Surface mining permit applications--Minimum requirements for 

information on environmental resources.

    (a) Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface coal mining 
and reclamation operations.
    (b) In addition to the requirements of part 779, the permit 
application shall contain a map that delineates existing vegetative 
types and a description of the plant communities within the proposed 
permit area and within any proposed reference area.



Sec. 905.780  Surface mining permit applications--Minimum requirements for 

reclamation and operation plan.

    Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations.



Sec. 905.783  Underground mining permit applications--Minimum requirements for 

information on environmental resources.

    (a) Part 783 of this chapter, Underground Mining Permit 
Applications--Minimum Requirements for Information on Environmental 
Resources, shall apply to any person who makes application to conduct 
underground coal mining operations.
    (b) In addition to the requirements of part 783, the permit 
application shall contain a map that delineates existing vegetative 
types and a description of the plant communities within the area 
affected by surface operations and facilities and within any proposed 
reference area.



Sec. 905.784  Underground mining permit applications--Minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application for a permit to conduct underground 
coal mining operations.



Sec. 905.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to any person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.



Sec. 905.795  Small operator assistance program.

    Part 795 of this chapter, Small Operator Assistance Program, shall 
apply to any person making application for assistance under the small 
operator assistance program.

[[Page 494]]



Sec. 905.800  Bond and insurance requirements for surface coal mining and 

reclamation operations under regulatory programs.

    (a) Part 800 of this chapter, Bond and Insurance Requirements for 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, shall apply to all surface coal mining and reclamation 
operations, except for Sec. 800.40(a)(1) regarding the bond release 
application, for which paragraph (b) of this section substitutes and 
except as provided in paragraphs (c) and (d) of this section.
    (b) The permittee may file an application with the regulatory 
authority for the release of all or part of a performance bond. The 
application shall be filed no later than 30 days prior to the end of the 
vegetation growing season in order to evaluate properly the completed 
reclamation operations. The appropriate season for evaluating reclaimed 
operations shall be identified in the mining and reclamation plan 
required by subchapter G of this chapter approved by the regulatory 
authority.
    (c) The following bonds are acceptable for compliance with the 
California Federal Program.
    (1) A surety bond;
    (2) A collateral bond;
    (3) A self-bond; or
    (4) A combination of these bonding methods.
    (d) A permittee may replace existing bonds with other bonds that 
provide equivalent coverage.



Sec. 905.815  Performance standards--Coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person who conducts coal 
exploration.



Sec. 905.816  Performance standards--Surface mining activities.

    (a) Part 816 of this chapter, Permanent Program Performance 
Standards--Surface Mining Activities, shall apply to any person who 
conducts suface mining activitites, except for Sec. 816.116(a)(1) 
regarding revegetation success standards, for which paragraph (c) of 
this section substitutes.
    (b) All operators shall comply with the Porter-Cologne Water Quality 
Control Act, Cal. Pub. Res. Code section 13000 et seq.; the California 
Water Code section 1200 et seq.; the California Air Pollution Control 
Laws, Cal. Health & Safety Code section 39000 et seq.; the Hazardous 
Waste Control Law, Cal. Health & Safety Code section 25100 et seq.; the 
State Underground Storage of Hazardous Substances Law, Cal. Health & 
Safety Code section 25280 et seq.; the Solid Waste Management and 
Resource Recovery Act of 1972, Cal. Gov. Code section 66770 et seq.; the 
California Environmental Quality Act, Cal. Pub. Res. Code section 21000; 
the California Coastal Act of 1976, Cal. Pub. Res. Code section 30000 et 
seq.; the Z'berg-Nejedly Forest Practice Act of 1973, Cal. Pub. Res. 
Code section 4511 et seq.; the California Public Resources Code section 
4656; and regulations promulgated pursuant to these laws.
    (c) Standards for success shall be those identified in Sec. 
816.116(a)(2) of this chapter. Statistically valid sampling techniques 
for measuring success shall be included in the mining and reclamation 
plan, and approved by the regulatory authority.



Sec. 905.817  Peformance standards--Underground mining activities.

    (a) Part 817 of this chapter, Permanent Program Performance 
Standards--Underground Mining Activities, shall apply to any person who 
conducts underground mining activities, except for Sec. 817.116(a)(1) 
regarding revegetation success standards, for which paragraph (c) of 
this section substitutes.
    (b) All operators shall comply with the Porter-Cologne Water Quality 
Control Act, Cal. Pub. Res. Code section 13000 et seq.; the California 
Water Code section 1200 et seq.; the California Air Pollution Control 
Laws, Cal. Health & Safety Code section 39000 et seq.; the Hazardous 
Waste Control Law, Cal. Health & Safety Code section 25100 et seq.; the 
State Underground Storage of Hazardous Substances Law, Cal. Health & 
Safety Code section 25280 et seq.; the Solid Waste Management and 
Resource Recovery Act of 1972, Cal. Gov. Code section 66770 et seq.; the 
California Environmental Quality Act, Cal. Pub. Res. Code section 21000; 
the California Coastal Act of 1976, Cal. Pub. Res. Code section 30000 et 
seq.; the Z'berg-Nejedly Forest Practice Act of 1973, Cal. Pub.

[[Page 495]]

Res. Code section 4511 et seq.; the California Public Resources Code 
section 4656; and regulations promulgated pursuant to these laws.
    (c) Standards for success shall be those identified in Sec. 
817.116(a)(2) of this chapter. Statistically valid sampling techniques 
for measuring success shall be included in the mining and reclamation 
plan, and approved by the regulatory authority.



Sec. 905.819  Special performance standards--Auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 905.822  Special performance standards--Operations in alluvial valley 

floors.

    Part 822 of this chapter, Special Permanent Program Performance 
Standards--Operations in Alluvial Valley Floors, shall apply to any 
person who conducts surface coal mining and reclamation operations on 
alluvial valley floors.



Sec. 905.823  Special performance standards--Operations on prime farmland.

    Part 832 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmland.



Sec. 905.824  Special performance standards--Mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface coal mining and reclamation operations constituting mountaintop 
removal mining.



Sec. 905.827  Special performance standards--Coal preparation plants not 

located within the permit area of a mine.

    Part 827 of this chapter, Permanent Program Performance Standards--
Coal Preparation Plants Not Located Within the Permit Area of a Mine, 
shall apply to any person who conducts surface coal mining and 
reclamation operations which include the operation of a coal preparation 
plant not located within the permit area of a mine.



Sec. 905.828  Special performance standards--In situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts 
surface coal mining and reclamation operations which include the in situ 
processing of coal.



Sec. 905.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all coal exploration and surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 842, copies of 
inspection reports will be furnished, upon request, to the California 
Division of Mining and Geology.



Sec. 905.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall apply 
regarding enforcement action on coal exploration and surface coal mining 
and reclamation operations.
    (b) In addition to the requirements of part 843, copies of 
enforcement actions and orders to show cause will be furnished, upon 
request, to the California Division of Mining and Geology.



Sec. 905.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply to the 
assessment of civil penalties for violations on coal exploration and 
surface coal mining and reclamation operations.



Sec. 905.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of 
SMCRA.



Sec. 905.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examinatioin and certification of blasters for surface coal mining 
operations.

[[Page 496]]



PART 906_COLORADO--Table of Contents



Sec.
906.1 Scope.
906.10 State regulatory program approval.
906.15 Approval of Colorado regulatory program amendments.
906.16 Required program amendments.
906.20 Approval of Colorado abandoned mine land reclamation plan.
906.25 Approval of Colorado abandoned mine land reclamation plan 
          amendments.
906.30 State-Federal cooperative agreement.

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



Sec. 906.1  Scope.

    This part contains all rules applicable only within Colorado that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[45 FR 82211, Dec. 15, 1980]



Sec. 906.10  State regulatory program approval.

    The Colorado State program as submitted on February 29, 1980, and 
amended and clarified on June 11, 1980, was conditionally approved, 
effective December 15, 1980. Beginning on that date, the Colorado 
Department of Natural Resources was deemed the regulatory authority in 
Colorado for surface coal mining and reclamation operations and for coal 
exploration operations on non-Federal and non-Indian lands. Copies of 
the approved program are available for review at:
    (a) Colorado Department of Natural Resources, Division of Minerals 
and Geology, Centennial Building, room 215, 1313 Sherman Street, Denver, 
CO 80203.
    (b) Office of Surface Mining Reclamation and Enforcement, Western 
Regional Coordinating Center, Technical Library, 1999 Broadway, Suite 
3320, Denver, Colorado 80202-5733.

[47 FR 56350, Dec. 16, 1982, as amended at 59 FR 17932, Apr. 15, 1994; 
60 FR 54593, Oct. 25, 1995]



Sec. 906.15  Approval of Colorado regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
January 11, 1982, February 25, 1982..  December 16, 1982......  2 CCR 407-2, 1.03.3(2), 1.03.4(2)(a); 2.02.2(3);
                                                                 2.03.4(3); 2.05.3(6), .4(2)(c), .6, .6(3)(a),
                                                                 (c), .6(4), .6(6)(f); 2.06.12, .5(1), .6(2)(j),
                                                                 .8(3)(b), .8(5); 2.08.4(1)(f), .4(5)(b), (c);
                                                                 3.02.1(5)(b); 3.05.1(1)(a), .1(7); 4.05.2(2),
                                                                 .3(5), (6), .4, .6(3)(c), .6(9); 4.06.5;
                                                                 4.15.7(2)(d), .8(7), (8); 4.16.2(1); 4.21.2(1),
                                                                 (2); 5.03.6.
January 11, 1982, February 25, 1982,   May 1, 1984............  CRS 34-33-108, 2 CCR 407-2, 1.13, 2.07.6(3),
 May 26, 1983, August 2, 1983.                                   4.05.2(7).
August 28, 1985......................  November 15, 1985......  CCR 407-2, 5.03.2(1), 5.04.5(2)
August 28, 1984, March 12, 1985......  February 5, 1986.......  2 CCR 407-2, 1.04(95), (111); 1.14; 1.15;
                                                                 2.02.1, .2(2), .(g), .3(1)(c), (e); 2.03.5(3),
                                                                 .9(1); 2.04.4, .8(1), .9(1), .10(4), .12(1),
                                                                 (2), (4), 2.05.3(4)(a), .5(1)(a); 2.07.5(1)(b);
                                                                 2.10.1(1), (2), (3), .2(4), .3(1); 4.03;
                                                                 4.06.1(2), .2(1), (2)(a), (4)(a), .4(1);
                                                                 4.07.1(2), .3(1), (2); 4.08.3(2)(b), .4(1)(b),
                                                                 .4(10), .6(2); 4.15.1(2)(a), (d), .1(4), .2,
                                                                 .4, .5, .6(3), .8(2), (3), (4), (7), (8), .9;
                                                                 4.16.2, .3; 4.18(3), (4); 4.21.1, .4(1);
                                                                 4.30.1(2); 5.02.2, 5.03.2(2), 5.04.6(4).
January 23, 1986.....................  May 30, 1986...........  2 CCR 407-2, 5.03.3(2)(b).
January 27, 1986, May 13, 1986.......  July 1, 1986...........  2 CCR 407-2, 1.04; 6.01-4; blaster training
                                                                 program; blaster certification examination.
August 18, 1986......................  February 5, 1987.......  2 CCR 407-2, 2.02.2(2)(g); 2.04.12(1);
                                                                 2.10.1(1); 4.06.1(2), .2(2)(a), .2(4)(a);
                                                                 4.21.4(1); The Handbook Memorandum,
                                                                 ``Alternative to Topsoil Stockpiles,'' which
                                                                 interprets 4.06.1(2).
November 25, 1986....................  May 7, 1987............  2 CCR 407-2, 4.15.7(2)(d).
May 26, 1987.........................  March 31, 1989.........  2 CCR 407-2, 1.04(25), (57), (59), (71), (116),
                                                                 (120), (153); 1.05.1; 2.03.7(3); 2.04.9(1),
                                                                 .12; 2.05.4(2), .6(6)(f); 2.06.2(4), (5), (8),
                                                                 (9), (10), .6(1), (2); 2.07.6(2)(d), (e);
                                                                 3.02.1(4), (5), (6), .2(4), .4(1), (2);
                                                                 3.03.1(2), .2(5), (6); 3.04.2(5), (6);
                                                                 4.06.2(2), (4), (5), (6); 4.15.1(1), .2, .7(2),
                                                                 (3), .8(2), (3), (4), (7), (9); 4.18;
                                                                 4.20.1(3), .4(1), (3); 4.25.5(2), (3);
                                                                 5.02.4(1); 5.03.3(5); 5.04.3(2), (3);
                                                                 7.03(3)(f); 7.04(5); 7.06.2(1), (2), .3(1),
                                                                 (2), .5(2).
October 14, 1988.....................  June 6, 1989...........  2 CCR 407-2, 2.05.6(4)(b), 2.07.6(2)(e),
                                                                 2.10.3(1)(g).

[[Page 497]]

 
August 23, 1988......................  December 11, 1989......  2 CCR 407-2, 1.04; 2.02.3, .5; 2.03, .3, .5;
                                                                 2.04.4, .6, .7, .13; 2.05.3, .4, .6; 2.06.3,
                                                                 .7, .8; 2.07.3, .4, .5; 2.08.4, .5, .6; 2.09.2,
                                                                 .3, .5, .6, .8; 2.10.3; 3.02.4; 3.03.2; 4.05.1
                                                                 through .6, .8, .9, .13, .16; 4.07.2; 4.08.1,
                                                                 .2, .4, .5, .6; 4.09, .1 through .4; 4.10, .1
                                                                 through .4; 4.11, .1 through .5; 4.14.1, .2,
                                                                 .6; 4.17; 4.21.4; 4.24.2 through .5; 5.04.3;
                                                                 7.08.
July 18, 1989........................  January 14, 1991.......  2 CCR 407-2, 1.01(9); 1.04(64), (70a), (83a),
                                                                 (115), (153); 1.10.2(2), .4(1); 2.02.3(1)(c),
                                                                 .7(2)(a); 2.03.4, .5(3), (4); 2.04.7(1)(a);
                                                                 2.05.3(4)(a), (b), .6(2)(c); 2.06.8(3)(c);
                                                                 2.07.6(1)(b),(d), (2)(h), (10)(c), .7(4), (5);
                                                                 4.05.3(1), (7), (8), (9), .4(1), (2)(b),
                                                                 .6(3)(c), (d), (e), (4), (5), (6), (11), (11i),
                                                                 (11j), (11k), (12), (13), (13b), .8(1), (2),
                                                                 .9(1)(a), (e), (f), (3), (3a), (3b), (4), (5),
                                                                 (12), (13), (13c); 4.08.1(3), .4(6)(c),
                                                                 .5(4)(c), (11); 4.09.1(10), .2(2)(a), (3);
                                                                 4.11.5(3)(b), (d); 4.21.4(7), (7)(c);
                                                                 4.23.2(7); 4.25.1(2); 5.02.2(4)(b);
                                                                 5.03.2(1)(d), .5(1)(d), (4)(e); 5.04.7(2), (3),
                                                                 (4).
April 11, 1991.......................  July 22, 1991..........  2 CCR 407-2, 3.03.3; 4.05.3(1)(c), (d), (e),
                                                                 .8(1); 4.14.1(1)(e); 5.02.2(8), (9);
                                                                 5.04.(7)(1).
March 19, 1993.......................  January 19, 1994.......  2 CCR 407-2, 1.04(103a); 4.14.1(2)(a), (f), (g),
                                                                 (h), .2(1), (1a), (1b); 4.27.4, (1).
June 30, 1993........................  June 1, 1994...........  2 CCR 407-2, 1.04(111) through (111c);
                                                                 2.05.3(3)(a), (c), (9)(a), (10)(a) through (e),
                                                                 .4(2); 4.03.1(1)(a), (b), (d), (e), (2)(b),
                                                                 (3)(c), (e), (6)(c), (7)(a), (b), .2(1)(a),
                                                                 (b), (e), (f), (2)(b), (3)(c), (e), (6)(a),
                                                                 (c), (7)(a), (b), .3(1)(a), (b), (2)(b),
                                                                 (3)(c), (6)(c), (7)(i); 4.08.4(10) through (b),
                                                                 .6(1); 4.09.3(2)(c); 4.11.4(3); 4.14.2(2), (c);
                                                                 4.21.4(3)(b), (c), (d); 4.26.2(2), (b), (c);
                                                                 Policy statements in the 11/03/93 revised
                                                                 amendment, ``Statement of Basis, Specific
                                                                 Statutory Authority and Purpose''.
April 18, 1994.......................  December 6, 1994.......  2 CCR 407-2, 1.04(25), (116); 3.02.1(4), (7),
                                                                 .2(4)(b), (d), .4(1)(b), (c), (2)(b) through
                                                                 (e); 3.03.1(2), (3)(b), (d), (e), .2(1)(b),
                                                                 (2), (4)(c), (5)(a), (b); 3.06; 4.15.10(2),
                                                                 (3); 4.25.5(3)(a).
March 18, 1994.......................  May 15, 1995...........  Memorandum of Understanding (MOU).
July 12, 1995........................  December 14, 1995......  2 CCR 1.04(21), (80), (92), (111), (132),
                                                                 .05.1(1)(b); 2.03.3(4), .7(1), .05.3(3)(c)(iv),
                                                                 (8)(c), .6(2)(iii)(A), .06.6(2), .8(5),
                                                                 (c)(i)(A), (B), .07.2; 3.02.2(5), .3(c),
                                                                 .4(1)(b)(2), (c)(ix), (1)(d), (i);
                                                                 3.03.1(2)(b); 4.08.6(1), .15.10(3), .20.3(2).
November 20, 1995....................  February 21, 1996......  2CCR 5.03.6, (4)(e).
February 25, 1997....................  May 30, 1997...........  2 CCR 407-2, Rules 1.01(9); 1.04 (4), (12),
                                                                 (21), (41), (149); 1.13; 2.05.3 (3) (b)(i)(D),
                                                                 (3)(c)(ii); 2.06.2(4); 2.06.6(2)(a)(i);
                                                                 2.08.5(2)(b)(ii); 2.08.6(6); 3.02.4(2)(d)(i);
                                                                 3.05.5(1); 4.02.2(2); 4.03.1(1)(e); 4.05.6
                                                                 (6)(a), (11)(h); 4.07.3(3) (f), (g); 4.30
                                                                 .1(3), .2(3); 5.02.41 (1), (2); 5.03.3(5).
May 12, 2000.........................  November 24, 2000......  Rules 1.04 (31a), (71), (81a), (86a), (93a),
                                                                 (115) and (137a); 2.05.3(4), (4)(a)(iii), (iv),
                                                                 (v) and (vii), and (4)(b); 2.05.3(8)(a)(iii),
                                                                 (iv), (v) and (vi); 2.07.3(3)(b) and (c);
                                                                 2.07.6(2)(c) and (3)(b)(iv); 4.05.2(1), (2),
                                                                 (3)(a), (4), (5) and (6); 4.05.6; 4.05.7;
                                                                 4.05.9; 4.05.13(1)(a) through (c);
                                                                 4.05.18(1)(a) through (c); 4.21.4(10) and
                                                                 4.28.3(16).
March 27, 2003.......................  March 24, 2005.........  1.04(71)(f)&(g), 2.04.13(1)(e),
                                                                 2.06.6(2)(a),(g), 2.06.8(4)(a)(i),
                                                                 2.06.8(5)(b)(i), 2.07.6(1)(a)(ii),
                                                                 2.07.6(2)(n), 2.08.4(6)(c)(iii), 3.03.2(1)(e),
                                                                 3.03.2(5)(a), 4.03.1(4)(e), 4.05.2, 4.06.1(2),
                                                                 4.15.1(5), 4.15.4(5), 4.15.7(1), 4.15.7(2),
                                                                 4.15.7(3)(b), 4.15.7(3)(f), 4.15.7(4),
                                                                 4.15.7(5), 4.15.7(5)(a), 4.15.7(5)(b),
                                                                 4.15.7(5)(c), 4.15.7(5)(d), 4.15.7(5)(e),
                                                                 4.15.7(5)(f), 4.15.7(5)(g), 4.15.8(3)(a),
                                                                 4.15.8(4), 4.15.8(7), 4.15.8(8), 4.15.9,
                                                                 4.15.11, 4.15.11(1)(a), 4.15.11(1)(b),
                                                                 4.15.11(1)(c), 4.15.11(2), 4.15.11(3),
                                                                 4.25.2(4).
----------------------------------------------------------------------------------------------------------------


[62 FR 9936, Mar. 5, 1997, as amended at 62 FR 33747, June 23, 1997; 65 
FR 70486, Nov. 24, 2000; 70 FR 14999, Mar. 24, 2005]



Sec. 906.16  Required program amendments.

    Pursuant to 30 CFR 732.17(f)(1), Colorado is required to submit to 
OSM by the specified date the following written, proposed program 
amendment, or a description of an amendment to be proposed that meets 
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with Colorado's established administrative 
or legislative procedures.
    (a)-(e) [Reserved]
    (f) By September 30, 1994, Colorado shall submit an amendment to 
revise Rules 4.03.1(1)(e) and 4.03.2(1)(e) to clearly indicate that the 
variance from compliance with design criteria for roads may not be 
applied to Colorado's counterparts to the Federal regulations for all 
roads at 30 CFR 816.150 and 817.150, and primary roads at 30 CFR 816.151 
(a), (c), (d), and (e), and 817.151 (a), (c), (d), and (e).
    (g) [Reserved]
    (h) By February 12, 1996, Colorado shall revise Rule 1.04(111), to 
delete the exemption for regulation of public

[[Page 498]]

roads under Colorado's program, or otherwise modify its program to 
qualify the exemption for public roads to consider the degree of effect 
that mining use has on the road.

[56 FR 1372, Jan. 14, 1991, as amended at 56 FR 33384, July 22, 1991; 59 
FR 28260, June 1, 1994; 59 FR 62583, Dec. 6, 1994; 60 FR 64122, Dec. 14, 
1995; 61 FR 26801, May 29, 1996; 65 FR 70487, Nov. 24, 2000]



Sec. 906.20  Approval of Colorado abandoned mine land reclamation plan.

    The Colorado Abandoned Mine Land Reclamation Plan, as submitted on 
February 16, 1982, and as subsequently revised, is approved effective 
June 11, 1982. Copies of the approved plan are available at:
    (a) Colorado Department of Natural Resources, Division of Minerals 
and Geology, 1313 Sherman Street, Room 215, Denver, CO 80203.
    (b) Office of Surface Mining Reclamation and Enforcement, Western 
Regional Coordinating Center, Technical Library, 1999 Broadway, Suite 
3320, Denver, Colorado 80202-5733.

[60 FR 54593, Oct. 25, 1995]



Sec. 906.25  Approval of Colorado abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
April 29, 1985.......................  January 9, 1986........  Reclamation of noncoal sites.
October 29, 1996 and June 15, 2005...  September 18, 2006.....  Colorado Inactive Mine Reclamation Plan, Chapter
                                                                 VI.
----------------------------------------------------------------------------------------------------------------


[62 FR 9937, Mar. 5, 1997, as amended at 71 FR 54585, Sept. 18, 2006]



Sec. 906.30  State-Federal cooperative agreement.

    The Governor of the State of Colorado, acting through the Mined Land 
Reclamation Division (MLRD), and the Secretary of the Department of the 
Interior, acting through the Assistant Secretary for Energy and 
Minerals, and the Office of Surface Mining (OSM), enter into a 
Cooperative Agreement (Agreement) to read as follows.

                   Article I: Introduction and Purpose

    1. This Agreement is authorized by section 523(c) of the Surface 
Mining Control and Reclamation Act (Act), 30 U.S.C. 1273(c), which 
allows a State with a permanent regulatory program approved by the 
Secretary under 30 U.S.C. 1253, to elect to enter into an Agreement for 
the regulation and control of surface coal mining operations on Federal 
lands.
    This Agreement provides for State regulation, consistent with the 
Act, the Federal lands program (30 CFR part 745) and the Colorado State 
Program (Program) for surface coal mining and reclamation operations, on 
Federal lands.
    2. The purpose of this Agreement is to (a) foster Federal-State 
cooperation in the regulation of surface coal mining; (b) eliminate 
intergovernmental overlap and duplication; and (c) provide uniform and 
effective application of the Program on all non-Indian lands in 
Colorado, in accordance with the Act and the Program.

                       Article II: Effective Date

    3. After being signed by the Secretary and the Governor, the 
Agreement shall be effective upon publication in the Federal Register as 
a final rule.
    This Agreement shall remain in effect until terminated as provided 
in Article XI.

                           Article III: Scope

    4. Under this Agreement, the laws, regulations, terms, and 
conditions of the Program conditionally approved effective December 15, 
1980, 30 CFR part 906, or as hereinafter amended in accordance with 30 
CFR 732.17, for the administration of the Act, are applicable to Federal 
lands within the State except as otherwise stated in this Agreement, the 
Act, 30 CFR 745.13, or other applicable laws.
    Orders and decisions issued by MLRD in accordance with the State 
Program that are

[[Page 499]]

appealable, shall be appealed to the State reviewing authority. Orders 
and decisions issued by the Department that are appealable, shall be 
appealed to the Department of the Interior's Office of Hearings and 
Appeals.

                 Article IV: Requirements for Agreement

    5. The Governor and the Secretary affirm that they will comply with 
all of the provisions of this Agreement and will continue to meet all 
the conditions and requirements specified in this Article.
    A. Responsible Administrative Agency: The MLRD shall be responsible 
for administering this Agreement on behalf of the Governor on Federal 
lands throughout the State. The Assistant Secretary for Energy and 
Minerals, or designee, shall administer this Agreement on behalf of the 
Secretary in accordance with the regulations in 30 CFR Chapter VII.
    B. Authority of State Agency: The MLRD has and shall continue to 
have the authority under State law to carry out this Agreement.
    C. Funds: Upon application by the MLRD and subject to 
appropriations, the Department shall provide the State with the funds to 
defray the costs associated with carrying out responsibilities under 
this Agreement as provided in section 705(c) of the Act and 30 CFR 
735.16. If sufficient funds have not been appropriated to OSM, OSM and 
MLRD shall promptly meet to decide on appropriate measures that will 
insure that mining operations are regulated in accordance with the 
Program. If agreement cannot be reached, then either party may terminate 
the Agreement.
    Funds provided to the State shall be adjusted in accordance with 
Office of Management and Budget Circular A-102, Attachment E.
    D. Reports and Records: The MLRD shall make annual reports to the 
Director of OSM (Director) containing information with respect to 
compliance with the terms of this Agreement, pursuant to 30 CFR 
745.12(c). The MLRD and the Director shall exchange, upon request, 
except where prohibited by Federal law, information developed under this 
Agreement. The Director shall provide the MLRD with a copy of any final 
evaluation report prepared concerning State administration and 
enforcement of this Agreement.
    E. Personnel: The MLRD shall have the necessary personnel to fully 
implement this Agreement in accordance with the provisions of the Act 
and the approved Program. If sufficient funds have not been 
appropriated, OSM and MLRD shall promptly meet to decide on appropriate 
measures that will insure that mining operations are regulated in 
accordance with the Program.
    F. Equipment and Laboratories: The MLRD shall assure itself access 
to equipment, laboratories, and facilities with which all inspections, 
investigations, studies, tests, and analyses can be performed which are 
necessary to carry out the requirements of this Agreement.
    G. Permit Application Fees: The amount of the fee accompanying an 
application for a permit shall be determined in accordance with section 
34-33-110(1) Colorado Revised Statutes (CRS 1973), as amended. All 
permit fees shall be retained by the State and deposited with the State 
Treasurer in the General Fund. The Financial Status Report submitted 
pursuant to 30 CFR 735.26 shall include a report of the amount of fees 
collected during the prior State fiscal year.

                         Article V: Definitions

    6. Terms and phrases used in this Agreement which are defined in the 
Act, 30 CFR parts 700, 701 and 740 and as defined in the Program shall 
be given the meaning set forth in said definitions. Where there is a 
conflict between the above referenced State and Federal definitions, the 
definitions used in the approved State Program will apply, except in the 
case of a term which defines the Secretary's continuing responsibilities 
under the Act and other laws.

 Article VI: Policies and Procedures: Review of a Permit Application To 
Conduct Surface Coal Mining and Reclamation Operations or an Application 
                 for a Permit Revision or Permit Renewal

    7. The MLRD and the Director shall require an operator on Federal 
lands to submit a permit application package or an application for a 
permit revision or renewal in an appropriate number of copies to the 
MLRD and OSM. Any documentation or information prepared by the operator 
for the sole purpose of complying with the 3-year requirement of section 
7(c) of the Mineral Leasing Act (MLA) will be submitted directly to the 
Minerals Management Service (MMS). If such documentation is submitted as 
part of a permit application, a copy of the entire package will be 
forwarded to the MMS by OSM.
    The permit application package or application for a permit revision 
or renewal shall be in the format required by the MLRD and include any 
supplemental information required by the Department. The permit 
application package or application for a permit revision or renewal 
shall satisfy the requirements of 30 CFR 741.12(b) and 30 CFR 741.13, 
and include the information required by, or necessary for, the MLRD and 
the Department to make a determination of compliance with:
    (a) Section 34-33-101, et seq., CRS 1973, as amended;
    (b) Regulations of the Colorado Mined Land Reclamation Board for 
Coal Mining;
    (c) Applicable terms and conditions of the Federal coal lease;

[[Page 500]]

    (d) Applicable requirements of the MMS's 30 CFR part 211 regulations 
pertaining to the Mineral Leasing Act requirements unless previously 
submitted to the MMS; and
    (e) Applicable requirements of the approved Program and other 
Federal laws including, but not limited to, those identified in 30 CFR 
Chapter VII, Subchapter D, and appendix A of this Agreement.
    8. The MLRD shall assume primary responsibility pursuant to sections 
510(a) and 523(c) of the Act for the analysis, review, and approval of 
the permit application or application for a permit revision or renewal 
according to the standards of the approved Program. The Director shall 
assist the MLRD in the analysis of the permit application or application 
for a permit revision or renewal and coordinate with the other 
appropriate Federal agencies as specified by the Secretary according to 
the procedures set forth in appendix B. The Department shall 
concurrently carry out its responsibilities which cannot be delegated to 
the State under the MLA, National Environmental Policy Act (NEPA), and 
other public laws (including, but not limited to, those in appendix A) 
according to the procedures set forth in appendix B so as, to the 
maximum extent possible, not to duplicate the responsibilities of the 
State as set forth in this Agreement and the Program. The Secretary 
shall consider the information submitted in the permit application 
package and, when appropriate, make the decisions required by the Act, 
MLA, NEPA and other public laws as described above.
    9. As a matter of practice the Department will not independently 
initiate contacts with the applicant regarding permit application 
packages or applications for permit revisions or renewals. However, the 
Department reserves the right to act independently of the MLRD to carry 
out its statutory responsibilities under the Act, MLA, NEPA and other 
public laws provided, however, that the Department shall send copies of 
all relevant correspondence to the MLRD.
    10. The MLRD shall maintain a file of all original correspondence 
with the applicant and any information received from the applicant which 
may have a bearing on decisions regarding the permit application or 
application for a permit revision or renewal.
    11. OSM shall have access to MLRD files for mines on Federal lands. 
MLRD will provide OSM copies of information OSM deems necessary.
    12. To the fullest extent allowed by State and Federal law, the 
Director and MLRD shall cooperate so that duplication will be eliminated 
in conducting the review and analysis of the permit application package 
or application for a permit revision or renewal.

                        Article VII: Inspections

    13. The MLRD shall conduct inspections on Federal lands and prepare 
and file inspection reports in accordance with the Program.
    14. The MLRD shall, subsequent to conducting any inspection, and on 
a timely basis, file with the Director a copy of each inspection report. 
Such report shall adequately describe (1) the general conditions of the 
lands under the permit; (2) the manner in which the operations are being 
conducted; and (3) whether the operator is complying with applicable 
performance and reclamation requirements.
    15. The MLRD will be the point of contact and primary inspection 
authority in dealing with the operator concerning operations and 
compliance with the requirements covered by this Agreement, except as 
described hereinafter. Nothing in this Agreement shall prevent Federal 
inspections by authorized Federal or State agencies for purposes other 
than those covered by this Agreement. The Department may conduct any 
inspections necessary to comply with 30 CFR parts 842 and 743, as part 
743 relates to obligations under laws other than the Act.
    16. OSM shall ordinarily give the MLRD reasonable notice of its 
intent to conduct an inspection under 30 CFR 842.11 in order to provide 
State inspectors with an opportunity to join in the inspection. When OSM 
is responding to a citizen complaint of an imminent danger to the public 
health and safety or significant, imminent environmental harm to land, 
air or water resources, pursuant to 30 CFR 842.11(b)(1(ii)(C), it will 
contact MLRD no less than 24 hours prior to the Federal inspection, if 
practicable, to facilitate a joint Federal/State inspection. All citizen 
complaints which do not involve an imminent danger shall be referred to 
MLRD for action. The Secretary reserves the right to conduct inspections 
without prior notice to MLRD to carry out his responsibilities under the 
Federal Act.

                        Article VIII: Enforcement

    17. MLRD shall be the primary enforcement authority under the Act 
concerning compliance with the requirements of this Agreement and the 
Program. Enforcement authority given to the Secretary under other laws 
and orders including, but not limited to, those listed in appendix A is 
reserved to the Secretary.
    18. During any joint inspection by OSM and MLRD, MLRD shall have 
primary responsibility for enforcement procedures, including issuance of 
orders of cessation, notices of violation, and assessment of penalties. 
The MLRD shall consult OSM prior to issuance of any decision to suspend 
or revoke a permit.
    19. During any inspection made solely by OSM or any joint inspection 
where the

[[Page 501]]

MLRD and OSM fail to agree regarding the propriety of any particular 
enforcement action, OSM may take any enforcement action necessary to 
comply with 30 CFR parts 843 and 845. Such enforcement action shall be 
based on the performance standards included in the regulations of the 
approved Program, and shall be taken using the procedures and penalty 
system contained in 30 CFR parts 843 and 845.
    20. The MLRD and the Department shall promptly notify each other of 
all violations of applicable laws, regulations, orders, or approved 
mining permits subject to this Agreement and of all actions taken with 
respect to such violations.
    21. Personnel of the State and representatives of the Department 
shall be mutually available to serve as witnesses in enforcement actions 
taken by either party.
    22. This Agreement does not limit the Department's authority to 
enforce violations of Federal law which establish standards and 
requirements which are authorized by laws other than the Act.

                            Article IX: Bonds

    23. For all surface coal mining operations on Federal lands, the 
MLRD and the Secretary shall require each operator to submit a single 
performance bond payable to the State and to the United States, if 
required by Federal regulations, to cover the operator's 
responsibilities under the Act and the Program. Such performance bond 
shall be conditioned upon compliance with all requirements of the Act, 
the Program and any other requirements imposed by the Department under 
the MLA, as amended. If the Agreement is terminated, all bonds will 
revert to being payable only to the United States to the extent that 
Federal lands are involved. Submission of a performance bond does not 
satisfy the requirements for a Federal lease bond required by 30 CFR 
subpart3473 or a lessee protection bond required in addition to a 
performance bond, in certain circumstances, by section 715 of the Act.
    24. Prior to releasing the operator from an obligation under a 
performance bond required by the Program, the MLRD shall obtain the 
concurrence of OSM. the MLRD shall also advise OSM of annual adjustments 
to the performance bond, pursuant to the Program. Departmental 
concurrence shall include coordination with other Federal agencies 
having authority over the lands involved.
    25. The operator's performance bond shall be subject to forfeiture 
with the consent of OSM, in accordance with the procedures and 
requirements of the Program.

Article X: Designating Land Areas Unsuitable for All or Certain Types of 
                     Surface Coal Mining Operations

    26. The MLRD and the Director shall cooperate with each other in the 
review and processing of petitions to designate lands as unsuitable for 
surface coal mining operations. When either agency receives a petition 
that could impact adjacent Federal and non-Federal lands, respectively, 
the agency receiving the petition shall (1) notify the other of receipt 
and of the anticipated schedule for reaching a decision; and (2) request 
and fully consider data, information and views of the other.
    The authority to designate State and private lands as unsuitable for 
mining is reserved to the State. The authority to designate Federal 
lands as unsuitable for mining is reserved to the Secretary or his 
designated respresentative.

            Article XI: Termination of Cooperative Agreement

    27. This Agreement may be terminated by the Governor or the 
Secretary under the provisions of 30 CFR 745.15.

           Article XII: Reinstatement of Cooperative Agreement

    28. If this Agreement has been terminated in whole or in part it may 
be reinstated under the provisions of 30 CFR 745.16.

            Article XIII: Amendment of Cooperative Agreement

    29. This Agreement may be amended by mutual agreement of the 
Governor and the Secretary in accordance with 30 CFR 745.14.

           Article XIV: Changes in State or Federal Standards

    30. The Department or the State may from time to time promulgate new 
or revised performance or reclamation requirements or enforcement and 
administration procedures. Each party shall, if it determines it to be 
necessary to keep this Agreement in force, change or revise its 
regulations and request necessary legislative action. Such changes shall 
be made under the procedures of 30 CFR part 732 for changes to the State 
Program and under the procedures of section 501 of the Act for changes 
to the Federal lands program.
    31. The MLRD and the Department shall provide each other with copies 
of any changes to their respective laws, rules, regulations and 
standards pertaining to the enforcement and administration of this 
Agreement.

[[Page 502]]

            Article XV: Changes in Personnel and Organization

    32. Each party to this Agreement shall notify the other, when 
necessary, of any changes in personnel, organization and funding or 
other changes that will affect the implementation of this Agreement to 
ensure coordination of responsibilities and facilitate cooperation.

                   Article XVI: Reservation of Rights

    33. In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that have 
not been expressly addressed in this Agreement that the State or the 
Secretary may have under other laws or regulations, including but not 
limited to those listed in appendix A.

    Dated: September 27, 1982.

                                                        Richard D. Lamm,
                                                   Governor of Colorado.
    Dated: September 20, 1982.

                                                      Donald Paul Hodel,
                                       Acting Secretary of the Interior.

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations including 30 CFR part 211.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations including 40 CFR part 1500.
    4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations including 50 CFR part 402.
    5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR part 800.
    6. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    7. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    8. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    9. The Reservoir Salvage Act of 1960, amended by the Preservation of 
Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et seq.
    10. Executive Order 1593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    11. Executive Order 11988 (May 24, 1977), for flood plain 
protection. Executive Order 11990 (May 24, 1977), for wetlands 
protection.
    12. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
    13. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
    14. The Constitution of the United States.
    15. The Constitution of the State and State Law.

   Appendix B--Procedure for Cooperative Review of Permit Application 
 Packages and Applications for Permit Revisions or Renewals for Federal 
                         Coal Mines in Colorado

     I: Point of Contact and Coordination for the Review of Permit 
     Applications and Applications for Permit Revisions or Renewals

    A. The Colorado Mined Land Reclamation Division (MLRD) will:
    1. Be the point of contact and coordinate communications with the 
applicant on issues concerned with the development, review and approval 
of the permit application package or application for permit revision or 
renewal.
    2. Communicate with the applicant on issues of concern to the Office 
of Surface Mining (OSM) and promptly advise OSM of such issues and 
communications.
    3. Provide OSM with a monthly report on the status of each permit 
application, or application for permit revision or renewal.
    B. OSM will:
    1. Be responsible for coordinating the review of the permit 
application package with all Federal agencies which have 
responsibilities related to approval of the package.
    2. Be responsible for ensuring that any information OSM receives 
which has a bearing on decisions regarding the permit application 
package or application for a permit revision or renewal is sent promptly 
to MLRD.
    C. Minerals Management Service (MMS) will:
    1. Receive any documentation and information required by the 30 CFR 
part 211 regulations.
    2. Be the point of contact with the applicant on issues concerned 
exclusively with the 30 CFR part 211 regulations.
    3. Provide MLRD and OSM with copies of pertinent correspondence.

   II: Receipt and Distribution of the Permit Application Package and 
               Applications for Permit Revision or Renewal

    A. MLRD will:
    1. Receive from the applicant the appropriate number of copies of 
the permit application package, application for a permit revision or 
renewal, or the review correspondence from the applicant.
    2. Identify an application manager responsible for coordinating the 
review and notify OSM.
    3. Upon receipt of an application, MLRD will meet with OSM to 
discuss the application and agree upon a work plan and schedule.

[[Page 503]]

    B. OSM will:
    1. Receive from the applicant the appropriate number of copies of 
the permit application package, application for a permit revision or 
renewal, or the review correspondence from the applicant.
    2. Distribute copies of the permit application package and the 
identity of the MLRD application manager to other Federal agencies as 
required.
    C. OSM, MMS and the Federal land management agency (FLMA) will: Each 
identify an application manager upon receipt of the application package. 
OSM will notify MLRD and all Federal agencies of the identity of the 
application managers.

                   III: Determination of Completeness

    A. MLRD will:
    1. Determine the completeness of a permit application package or 
application for a permit revision or renewal in accordance with section 
34-33-118(1) CRS 1973, as amended and as defined in rule 1.04(30) of the 
Regulations of the Colorado Mined Land Reclamation Board for Coal Mining 
promulgated pursuant to the Colorado Surface Coal Mining Reclamation 
Act.
    2. Issue public notice of a complete application in accordance with 
the procedures of section 34-33-118(2) CRS 1973, as amended.

    IV: Determination of Preliminary Findings of Substantive Adequacy

    A. MLRD will:
    1. Consult with MMS, FLMA, OSM, and other appropriate Federal 
agencies to review the filed application for preliminary findings of 
substantive adequacy (henceforth ``preliminary findings'') and to assess 
the need for additional data requirements in their respective areas of 
responsibility.
    2. Arrange meetings and field examinations with the interested 
parties, as necessary, to determine the preliminary findings.
    3. Advise the applicant of the preliminary findings upon the advice 
and consent of FLMA, MMS, OSM and other Federal agencies specified by 
the Secretary.
    4. Transmit the letter(s) informing the applicant of the preliminary 
findings with copies to FLMA, MMS, OSM and other Federal agencies 
specified by the Secretary.
    5. Furnish the Director with copies of correspondence with the 
applicant and all information received from the applicant as requested.
    B. OSM will:
    1. At the request of MLRD, assist as possible in the review of the 
permit application package or application for a permit revision or 
renewal. In any case where assistance has been agreed upon, furnish MLRD 
with preliminary findings within 45 calendar days of receipt of the 
request.
    2. Work with other Federal agencies involved in the review to insure 
timely response and resolution of issues of particular concern regarding 
their statutory requirements.
    3. Within 30 days from notification of completeness, initiate NEPA 
compliance procedures and procedures required by other laws which OSM 
has responsibility for and has not delegated to the State.
    4. Participate, as arranged, in meetings and field examinations.
    C. FLMA will:
    1. Review the permit application package or application for permit 
revision or renewal for preliminary findings as to whether the 
applicant's proposed post-mining land use is consistent with FLMA's land 
use plan, and as to the adequacy of measures to protect Federal 
resources not covered by the rights granted by the Federal coal lease.
    2. Furnish OSM with preliminary findings and with any specific 
requirements for additional data, within 45 calendar days of FLMA's 
receipt of the permit application package or application for a permit 
revision or renewal.
    3. Participate, as arranged, in meetings and field examinations.
    D. MMS will:
    1. Review the permit application package or application for a permit 
revision or renewal in regard to MLA requirements addressed in such 
application.
    2. Furnish OSM with preliminary findings and with any specific 
requirements for additional data within 45 calendar days of MMS's 
receipt of the permit application package or application for a permit 
revision or renewal.
    3. Participate, as arranged, in meetings and field examinations.
    E. Other appropriate Federal agencies specified by the Secretary 
will:
    1. Review the permit application package or application for a permit 
revision or renewal for preliminary findings in regard to their 
responsibilities under law.
    2. Furnish OSM with preliminary findings within 45 calendar days of 
receipt of the application with specific requirements for additional 
data.
    3. Participate, as arranged, in meetings and field examinations.

          V: Findings of Technical Adequacy and NEPA Compliance

    A. MLRD will:
    1. Develop and coordinate the technical review of the permit 
application package or application for a permit revision or renewal. The 
review will include representatives of MLRD, MMS, FLMA, OSM and other 
appropriate Federal agencies specified by the Secretary.
    2. Coordinate with OSM for the purpose of eliminating duplication, 
and provide to OSM a complete technical analysis pursuant to

[[Page 504]]

the approved Program that will serve as the technical base for any 
Environmental Analysis (EA) or Environmental Impact Statement (EIS) 
which may be necessary to determine NEPA compliance for each permit 
application package.
    3. Coordinate, for the purpose of eliminating duplication, with MMS 
to conduct a technical analysis that will assist the MMS in making 
findings as may be necessary to determine compliance with the MLA.
    4. Coordinate, for the purpose of eliminating duplication, with FLMA 
to conduct a technical analysis of issues regarding post-mining land use 
and the adequacy of measures to protect Federal resources not covered by 
the rights granted by the lease.
    5. Coordinate, for the purposes of eliminating duplication, with 
other appropriate Federal agencies specified by the Secretary, to 
conduct a technical analysis of issues within their jurisdiction.
    B. OSM will:
    1. At the request of MLRD, assist as possible in the review of the 
application for technical adequacy in a timely manner as set forth by a 
schedule. Such schedule will be governed by the deadlines set forth in 
the Colorado Surface Coal Mining Reclamation Act and shall be developed 
by MLRD in cooperation with OSM.
    2. Resolve conflicts and difficulties between other Federal agencies 
in a timely manner.
    3. As soon as possible after receipt of the permit application 
package, determine the need for an EA or an EIS, pursuant to NEPA, with 
the assistance of FLMA, MMS, MLRD and other appropriate agencies, as 
arranged.
    4. Publish notices of NEPA documents as required by Federal law and 
regulations.
    5. Take the leadership role for the development of the EA and EIS 
including identification of areas where additional data is necessary.
    6. Provide MLRD with the analysis and conclusions of the appropriate 
Federal agencies regarding those elements of the package which the 
Secretary cannot delegate to the State.
    C. MMS will:
    1. Review the permit application package or application for a permit 
revision or renewal for compliance with 30 CFR part 211.
    2. Furnish MLRD, through OSM, findings on compliance in a timely 
manner as set forth by schedule. Such schedule will be governed by the 
statutory deadlines set forth in the Colorado Surface Coal Mining 
Reclamation Act and shall be developed by MLRD in cooperation with MMS.
    3. Participate, as arranged, in meetings and field examinations.
    D. FLMA will:
    1. Determine whether the permit application or application for a 
permit revision or renewal provides for post-mining land use consistent 
with FLMA's land use plan and determine the adequacy of measures to 
protect Federal resources under FLMA's jurisdiction not covered by the 
rights granted by the Federal coal lease.
    2. Furnish MLRD, through OSM, its determination on the technical 
adequacy in a timely manner as set forth by schedule. Such schedule will 
be governed by the statutory time limits set forth in the Colorado 
Surface Coal Mining Reclamation Act and shall be developed by MLRD in 
cooperation with FLMA.
    3. Participate, as arranged, in meetings and field examinations.
    E. Other appropriate Federal agencies specified by the Secretary 
will:
    1. Review the permit application package or application for a permit 
revision or renewal in regard to their responsibilities under law.
    2. Furnish MLRD, through OSM, findings on compliance with other 
applicable Federal laws and regulations in a timely manner as set forth 
by schedule. Such schedule will be governed by the statutory deadlines 
set forth in the Colorado Surface Coal Mining Reclamation Act and shall 
be developed in cooperation with MLRD.
    3. Participate, as arranged, in meetings and field examinations.

        VI: Preparation of the Decision Document and Transmittal

    A. MLRD will:
    1. Prepare a finding of compliance with the Program as approved by 
the Secretary and the regulations promulgated thereunder, which will 
consist of an analysis of critical issues raised during the course of 
the review and the resolution of those issues.
    2. Assist OSM in the preparation of the decision document for the 
permit application package or application for a permit revison or 
renewal, unless the work plan and schedule agreed upon provides 
otherwise. MLRD will provide OSM with:
    a. a brief but comprehensive discussion of the need for the proposal 
and alternatives to the proposal;
    b. a finding of compliance prepared under A.1;
    c. all other specific written findings required under section 34-33-
114 CRS 1973, as amended.
    3. Consider the comments of OSM, MMS, FLMA and other appropriate 
Federal agencies when assisting in the preparation of the decision 
document.
    B. OSM will:
    1. Prepare the approved NEPA compliance finding.
    2. Prepare the decision document with the assistance of MLRD unless 
the work plan and schedule agreed upon provides otherwise. The decision 
document shall contain the following:

[[Page 505]]

    a. an analysis of the environmental impacts of the proposal and 
alternatives to the proposal prepared in compliance with NEPA, CEQ 
regulations and OSM's NEPA Compliance Handbook;
    b. the determinations and recommendations of FLMA;
    c. the memorandum of recommendation from the MMS to the Assistant 
Secretary for Energy and Minerals, with regard to MLA requirements;
    d. the comments of other appropriate Federal agencies specified by 
the Secretary; and
    e. the relevant information submitted by MLRD as specified by A.2. 
of this Article.
    3. Transmit the decision document to the Secretary.
    C. FLMA will: Provide written concurrence on the decision document 
to OSM with regard to post-mining land use and the adequacy of measures 
to protect Federal resources not covered by rights granted by the 
Federal coal lease.
    D. MMS will: Provide written concurrence on the decision document to 
OSM with regard to MMS responsibilities.
    E. Other agencies will: Provide written concurrence on the decision 
document to OSM with regard to their responsibilities.

                    VII: Decision and Permit Issuance

    A. The Secretary will:
    1. Evaluate the analysis and conclusions as necessary to determine 
whether he concurs in the decision document insofar as it relates to his 
statutorily required decisions.
    2. Inform the MLRD immediately of this decision. The reason for not 
approving shall be specified and recommendations for remedy shall be 
specified.
    B. MLRD will:
    1. Issue the permit, permit revision, or permit renewal for surface 
coal mining and reclamation operations after making a finding of 
compliance with the approved Program in the manner set forth in this 
Cooperative Agreement.
    2. Advise the operator in the permit of the necessity of obtaining 
Secretarial approval, for those statutory requirements which have not 
been delegated to the State, prior to directly affecting Federal lands, 
and if necessary, prohibit the operator from directly affecting Federal 
lands under the permit, revised permit, or permit renewal until after 
the Secretary's approval has been received.
    3. Reserve the right to modify the permit, permit revision, or 
permit renewal, when appropriate, in order to resolve conflicts between 
the permit requirements and the requirements of other laws, rules and 
regulations administered by the Secretary, so that all requirements 
placed upon an operation are consistent and uniform.

                      VIII: Resolution of Conflict

    A. Every effort will be made to resolve errors, omissions and 
conflicts on data and data analysis at the State and field level.
    B. Areas of disagreement between the State and the Department shall 
be referred to the Governor and the Secretary for resolution.

[47 FR 44217, Oct. 6, 1982]



PART 910_GEORGIA--Table of Contents



Sec.
910.700 Georgia Federal program.
910.701 General.
910.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
910.707 Exemption for coal extraction incident to government-financed 
          highway or other construction.
910.761 Areas designated unsuitable for surface coal mining by Act of 
          Congress.
910.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
910.764 Process for designating areas unsuitable for surface coal mining 
          operations.
910.772 Requirements for coal exploration.
910.773 Requirements for permits and permit processing.
910.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
910.775 Administrative and judicial review of decisions.
910.777 General content requirements for permit applications.
910.778 Permit applications--minimum requirements for legal, financial, 
          compliance, and related information.
910.779 Surface mining permit applications--minimum requirements for 
          information on environmental resources.
910.780 Surface mining permit applications--minimum requirements for 
          reclamation and operation plan.
910.783 Underground mining permit applications--minimum requirements for 
          information on environmental resources.
910.784 Underground mining permit applications--minimum requirements for 
          reclamation and operation plan.
910.785 Requirements for permits for special categories of mining.
910.795 Small operator assistance.
910.800 General requirements for bonding of surface coal mining and 
          reclamation operations.
910.815 Performance standards--coal exploration.
910.816 Performance standards--surface mining activities.
910.817 Performance standards--underground mining activities.

[[Page 506]]

910.819 Special performance standards--auger mining.
910.823 Special performance standards--operations on prime farmland.
910.824 Special performance standards--mountaintop removal.
910.827 Special performance standards--coal processing plants and 
          support facilities not located at or near the minesite or not 
          within the permit area for a mine.
910.828 Special performance standards--in situ processing.
910.842 Federal inspections.
910.843 Federal enforcement.
910.845 Civil penalties.
910.846 Individual civil penalties.
910.955 Certification of blasters.

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

    Source: 47 FR 36399, Aug. 19, 1982, unless otherwise noted.



Sec. 910.700  Georgia Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in Georgia which have been adopted under the Surface 
Mining Control and Reclamation Act of 1977.
    (b) The rules in this part cross-reference pertinent parts of the 
permanent program regulations in this chapter. The full text of a rule 
is in the permanent program rule cited under the relevant section of the 
Georgia Federal program.
    (c) The rules in this part apply to all surface coal mining 
operations in Georgia conducted on non-Federal and non-Indian lands. The 
rules in Subchapter D of this chapter apply to operations on Federal 
lands in Georgia.
    (d) The information collection requirements contained in this part 
do not require approval by the Office of Management and Budget under 44 
U.S.C. 3507 because there are fewer than ten respondents annually.
    (e) The following provisions of Georgia laws provide, where 
applicable, for more stringent environmental control and regulation of 
surface coal mining operations than do the provisions of the Act and the 
regulations in this chapter. Therefore, pursuant to section 505(b) of 
the Act, they shall not be construed to be inconsistent with the Act:
    (1) Georgia Code Ann. section 56-412 pertaining to limitation of 
risks for insurance companies.
    (2) Georgia Code Ann. section 414-1306 pertaining to the limitation 
on loan amounts made by banks.
    (3) Georgia Safe Dams Act of 1978 and the Rules for Dam Safety, 
Chapter 391-3-8 of the Rules of the Department of Natural Resources, 
Environmental Protection Division.
    (4) Chapter 391-34 of the rules of the Department of Natural 
Resources, Enviromental Protection Division, pertaining to solid waste 
management.
    (5) Georgia Seed Laws and Rules and Regulations containing the 
Noxious Weed List.
    (f) The following are Georgia laws that interfere with the 
achievement of the purposes and requirements of the act and are, in 
accordance with Section 504(g) of the Act, preempted and superseded:
    (1) The Georgia Surface Mining Act of 1968, Georgia Code Ann. 
Section 43-1401 et seq., but not to the extent that it regulates surface 
coal mining operations which affect two acres or less or are otherwise 
not regulated by the Surface Mining Control and Reclamation Act.
    (2) Rules for Land Reclamation, Georgia Department of Natural 
Resources, Environmental Protection Division, Chapter 391-3-3(1976), but 
not to the extent that such regulations apply to surface coal mining 
operations which affect two areas or less or are otherwise not regulated 
by the Surface Mining Control and Reclamation Act.

[47 FR 36399, Aug. 19, 1982, as amended at 52 FR 13806, Apr. 24, 1987]



Sec. 910.701  General.

    Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and part 701 
of this chapter shall apply to surface coal mining operations in 
Georgia.



Sec. 910.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of other minerals 
for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]

[[Page 507]]



Sec. 910.707  Exemption for coal extraction incident to government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incidental 
to Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 910.761  Areas designated unsuitable for surface coal mining by Act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply to surface coal mining and reclamation operations.



Sec. 910.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface coal mine 
operations beginning on April 9, 1983.



Sec. 910.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to 
petitioning, initial processing, hearing requirements, decisions, data 
base and inventory systems, public information, and regulatory 
responsibilities shall apply to surface coal mine operations beginning 
on April 9, 1983.



Sec. 910.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
that more time is necessary to complete such reviews, setting forth the 
reasons and the additional time that is needed.

[52 FR 13806, Apr. 24, 1987, as amended at 53 FR 4977, Feb. 19, 1988]



Sec. 910.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
applicant of the findings;
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and negotiate the 
date by which the information must be submitted; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 910.773(b)(2)(ii) by the specified date, the Office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the application is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with actual site conditions. The applicant will be notified 
in advance of the time of the visit. At the time of the visit, the 
applicant shall have the locations of the proposed permit boundaries, 
topsoil storage areas, sediment control

[[Page 508]]

structures, roads, and other significant features contained in the 
application marked by flags.
    (c) In addition to the information required by subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) Issuance of permits shall also be coordinated with permits 
issued pursuant to the Georgia Water Quality Control Act, section 17-
501; the Georgia Solid Waste Management Act, section 43-1681; the 
Georgia Air Quality Act of 1973; the Georgia Hazardous Waste Management 
Act of 1979; the Georgia Groundwater Use Act; and the rules of the 
Georgia Fire Safety Commission on blasters' permits.
    (e) The Secretary shall provide for coordination of review and 
issuance of permits for surface mining and reclamation operations with 
applicable requirements of the Georgia Wildflower Preservation Act of 
1973, section 43-1801 et seq.; the Georgia Endangered Wildlife Act of 
1973, section 43-2101 et seq.; the Georgia Heritage Trust Act of 1975, 
section 43-2301 et seq.; and the Georgia Cave Protection Act of 1977, 
section 43-2501 et seq.

[52 FR 13806, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 910.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved permit will be subject to review 
and approval by OSMRE.
    (1) Significant revisions shall be processed as if they are new 
applications in accordance with the public notice and hearing provisions 
of Sec. Sec. 773.6, 773.19(b) (1) and (2), and 778.21 and of part 775.
    (2) OSMRE shall make every effort to approve or disapprove an 
application for permit revision within 60 days of receipt or such longer 
time as may be reasonable under the circumstances. If additional time is 
needed, OSMRE shall notify the applicant that the application is being 
reviewed, but more time is necessary to complete such review, setting 
forth the reasons and the additional time that is needed.
    (c) In addition to the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 
thirty days of either the publication of the newspaper advertisement 
required by Sec. 774.17(b)(2) of this chapter or receipt of an 
administratively complete application, whichever, is later.

[52 FR 13807, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 910.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.

[52 FR 13807, Apr. 24, 1987]



Sec. 910.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
applications, shall apply to any person who applies for a permit to 
conduct surface coal mining and reclamation operations.

[52 FR 13807, Apr. 24, 1987]



Sec. 910.778  Permit applications--minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance, and Related Information, shall apply 
to any person who applies for a permit to conduct surface coal mining 
and reclamation operations.

[52 FR 13807, Apr. 24, 1987]

[[Page 509]]



Sec. 910.779  Surface mining permit applications--minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface coal mining 
and reclamation operations.



Sec. 910.780  Surface mining permit applications--minimum requirements for 

reclamation and operation plan.

    (a) Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirement for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations.
    (b) The application for a permit shall also demonstrate compliance 
with the air quality control standards in Chapter 391-3-1 of the Rules 
and Regulations for Air Quality Control of the Georgia Department of 
Natural Resources.



Sec. 910.783  Underground mining permit applications--minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who submits an application to conduct underground 
mining operations.



Sec. 910.784  Underground mining permit applications--minimum requirements for 

reclamation and operation plan.

    (a) Part 784 of this chapter, Underground Mining Permit 
Applications--Minimum Requirements for Reclamation and Operation Plan, 
shall apply to any person who makes application to conduct underground 
mining.
    (b) The applicant for a permit to conduct underground mining 
operations shall demonstrate compliance with Chapter 391-3-1 of the 
Rules and Regulations of the Georgia Department of Natural Resources.



Sec. 910.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations.



Sec. 910.795  Small operator assistance.

    Part 795 of this chapter, Small Operator Assistance, shall apply to 
any person making application for assistance under the small operator 
assistance program.



Sec. 910.800  General requirements for bonding of surface coal mining and 

reclamation operations.

    Part 800 of this chapter, General Requirements for Bonding of 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, shall apply to all surface coal mining and reclamation 
operations.



Sec. 910.815  Performance standards--coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person conducting coal exploration 
operations.



Sec. 910.816  Performance standards--surface mining activities.

    (a) Part 816 of this chapter, Permanent Program Performance 
Standards--Surface Mining Activities, shall apply to any person who 
conducts surface coal mining and reclamation operations.
    (b) No person shall conduct surface coal mining operations except in 
compliance with the Georgia Safe Dams Act and Rules for Safety of the 
Natural Resources, Environmental Protection Division; the Solid Waste 
Management Rules of the Georgia Department of Natural Resources, 
Environmental Protection Division, Chapter 391-3-4; and the Georgia Seed 
Laws and Regulation 4.

[47 FR 36399, Aug. 19, 1982, as amended at 52 FR 13807, Apr. 24, 1987]



Sec. 910.817  Performance standards--underground mining activities.

    (a) Part 817 of this chapter, Permanent Program Performance 
Standards--

[[Page 510]]

Underground Mining Activities, shall apply to any person who conducts 
underground mining operations.
    (b) No person shall conduct surface coal mining operations except in 
compliance with the Georgia Safe Dams Act and Rules for Safety of the 
Natural Resources, Environmental Protection Division; the Solid Waste 
Management Rules of the Georgia Department of Natural Resources, 
Environmental Protection Division, Chapter 391-3-4; and the Georgia Seed 
Laws and Regulation 4.

[47 FR 36399, Aug. 19, 1982, as amended at 52 FR 13807, Apr. 24, 1987]



Sec. 910.819  Special performance standards--auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 910.823  Special performance standards--operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmlands.



Sec. 910.824  Special performance standards--mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface coal mining operations constituting mountaintop removal mining.



Sec. 910.827  Special performance standards--coal processing plants and 

support facilities not located at or near the minesite or not within the 

permit area for a mine.

    Part 827 of this chapter, Special Permanent Program Performance 
Standards--Coal Processing Plants and Support Facilities Not Located at 
or Near the Minesite or Not Within the Permit Area for a Mine, shall 
apply to any person who conducts surface coal mining and reclamation 
operations which includes the operation of coal processing plants and 
support facilities not located at or near the minesite or not within the 
permit area for a mine.



Sec. 910.828  Special performance standards--in situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts in 
situ processing activities.



Sec. 910.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all exploration and surface coal mining and reclamation operations.
    (b) The Office will furnish a copy of any inspection report or 
enforcement action taken to the Georgia Department of Natural Resources 
upon request.



Sec. 910.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall apply when 
enforcement action is required for violations on surface coal mining and 
reclamation operations.
    (b) The Office will furnish a copy of each enforcement action and 
order to show cause issued pursuant to this section to the Georgia 
Department of Natural Resources upon request.



Sec. 910.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply when civil 
penalties are assessed for violations on surface coal mining and 
reclamation operations.



Sec. 910.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 910.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19461, May 29, 1986]

[[Page 511]]



PART 912_IDAHO--Table of Contents



Sec.
912.700 Idaho Federal program.
912.701 General.
912.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
912.707 Exemption for coal extraction incident to Government-financed 
          highway or other construction.
912.761 Areas designated unsuitable for surface coal mining by act of 
          Congress.
912.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
912.764 Process for designating areas unsuitable for surface coal mining 
          operations.
912.772 Requirements for coal exploration.
912.773 Requirements for permits and permit processing.
912.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
912.775 Administrative and judicial review of decisions.
912.777 General content requirements for permit applications.
912.778 Permit applications--minimum requirements for legal, financial, 
          compliance, and related information.
912.779 Surface mining permit applications--minimum requirements for 
          information on environmental resources.
912.780 Surface mining permit applications--minimum requirements for 
          reclamation and operation plan.
912.783 Underground mining permit applications--minimum requirements for 
          information on environmental resources.
912.784 Underground mining permit applications--minimum requirements for 
          reclamation and operation plan.
912.785 Requirements for permits for special categories of mining.
912.795 Small operator assistance.
912.800 General requirements for bonding of surface coal mining and 
          reclamation operations.
912.815 Performance standards--coal exploration.
912.816 Performance standards--surface mining activities.
912.817 Performance standards--underground mining activities.
912.819 Special performance standards--auger mining.
912.822 Special performance standards--operations in alluvial valley 
          floors.
912.823 Special performance standards--operations on prime farmland.
912.824 Special performance standards--mountaintop removal.
912.827 Special performance standards--coal processing plants and 
          support facilities not located at or near the minesite or not 
          within the permit area for a mine.
912.828 Special performance standards In situ processing.
912.842 Federal inspections.
912.843 Federal enforcement.
912.845 Civil penalties.
912.846 Individual civil penalties.
912.955 Certification of blasters.

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

    Source: 48 FR 16222, Apr. 14, 1983, unless otherwise noted.



Sec. 912.700  Idaho Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in Idaho which have been adopted under the Surface 
Mining Control and Reclamation Act of 1977.
    (b) The rules in this part cross-reference pertinent parts of the 
permanent program regulations in this chapter. The full text of a rule 
is in the permanent program rule cited under the relevant section of the 
Idaho Federal program.
    (c) The rules in this part apply to all surface coal mining 
operations in Idaho conducted on non-Federal and non-Indian lands. The 
rules in Subchapter D of this chapter apply to operations on Federal 
lands in Idaho.
    (d) The recordkeeping and reporting requirements of this part are 
the same as those of the permanent program regulations which have been 
approved by the Office of Management and Budget under 44 U.S.C. 3507.
    (e) The following provisions of Idaho laws provide, where 
applicable, for more stringent environmental control and regulation of 
surface coal mining operations than do the provisions of the Act and the 
regulations in this chapter. Therefore, pursuant to Section 505(b) of 
the Act, they shall not be construed to be inconsistent with the Act.
    (1) Idaho Code Section 47-1503(20) pertaining to the definition of 
``operator.''
    (2) Idaho Code Section 47-1509(c) regarding reclamation of disturbed 
land of less than 2 acres.
    (3) Idaho Code Section 47-1513(c) providing for assessment of 
anticipated costs of reclamation against an operator.
    (4) Idaho Code Sections 47-1513 (f) and (g) providing for assessment 
of civil penalties in addition to bond forfeiture.

[[Page 512]]

    (5) Idaho Code Sections 47-1301 et seq. and Rules 1 through 20 
promulgated thereunder pertaining to regulation of dredge mining.
    (6) Idaho Code Sections 18-4301 and 18-7019 providing for punishment 
for interference with water sources used in mining operations.
    (7) Idaho Code Section 42-1713 requiring a fee to be paid by each 
owner of a dam, reservoir or mine tailing impoundment structure.
    (8) Idaho Code Section 42-1718 (Supp.) providing for assessment 
against an operator for costs incurred in correction deficiencies in 
dams and impoundment structures.
    (f) The following Idaho statute and regulations interfere with the 
achievement of the purposes and goals of the Act. Therefore, in 
accordance with section 504(g) of the Act, they are preempted and 
superseded with respect to surface coal mining and reclamation, except 
as they apply to surface coal mining operations affecting two acres or 
less, or which otherwise are not regulated by the Surface Mining Control 
and Reclamation Act:

    The Idaho Surface Mining Act, Idaho Code Sections 47-1501--47-1524, 
as amended, and all regulations issued thereunder (with the exception of 
Sections 47-1503(20), 47-1509(c), 47-1513(c), and 47-1513 (f) and (g), 
and all regulations issued thereunder).

[48 FR 16222, Apr. 14, 1983, as amended at 52 FR 13807, Apr. 24, 1987]



Sec. 912.701  General.

    Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and part 701 
of this chapter shall apply to surface coal mining and reclamation 
operations in Idaho.



Sec. 912.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of other minerals 
for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]



Sec. 912.707  Exemption for coal extraction incident to Government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 912.761  Areas designated unsuitable for surface coal mining by act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply to surface coal mining and reclamation operations.



Sec. 912.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface mining and 
reclamation operations.



Sec. 912.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to 
petitioning, initial processing, hearing requirements, decisions, data 
base and inventory systems, public information, and regulatory 
responsibilities shall apply to surface coal mining and reclamation 
operations.



Sec. 912.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.

[52 FR 13807, Apr. 24, 1987]

[[Page 513]]



Sec. 912.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
applicant of the findings:
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and negotiate the 
date by which the information must be submitted; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 912.773(b)(2)(ii) by the specified date, the office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the application is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required by Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with actual site conditions. The applicant will be notified 
in advance of the time of the visit. At the time of the visit, the 
applicant shall have the locations of the proposed permit boundaries, 
topsoil storage areas, sediment control structures, roads, and other 
significant features contained in the application marked by flags.
    (c) In addition to the information required by subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) Where applicable, no person shall conduct surface coal 
exploration operations which result in the removal of more than 250 tons 
in one location, or surface coal mining operations without permits 
issued and/or certificates required by the State of Idaho, pursuant to 
Idaho Code sections 47-704, 47-1317, 47-1318, 47-1319, 47-1317 (Supp.), 
and 39-101 et seq. (Supp.).

[52 FR 13808, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 912.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved permit will be subject to review 
and approval by OSMRE.
    (1) Significant revisions shall be processed as if they were new 
applications in accordance with the public notice and hearing provisions 
of Sec. Sec. 773.6, 773.19(b)(1) and (b)(2), and 778.21 and of part 
775.
    (2) OSMRE shall make every effort to approve or disapprove an 
application for permit revision within 60 days of receipt or such longer 
time as may be reasonable under the circumstances. If additional time is 
needed, OSMRE shall notify the applicant that the application is being 
reviewed, but more time is necessary to complete such review, setting 
forth the reasons and the additional time that is needed.
    (c) In addition to the requirement of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 
thirty days of either the publication of the newspaper advertisement 
required

[[Page 514]]

by Sec. 774.17(b)(2) of this chapter or receipt of an administratively 
complete application, whichever is later.

[52 FR 13808, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 912.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.

[52 FR 13808, Apr. 24, 1987]



Sec. 912.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
Applications, shall apply to any person who applies for a permit to 
conduct surface coal mining and reclamation operations.

[52 FR 13808, Apr. 24, 1987]



Sec. 912.778  Permit applications--minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance and Related Information, shall apply to 
any person who applies for a permit to conduct surface coal mining and 
reclamation operations.

[52 FR 13808, Apr. 24, 1987]



Sec. 912.779  Surface mining permit applications--minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface coal mining 
and reclamation operations.



Sec. 912.780  Surface mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations.



Sec. 912.783  Underground mining permit applications--minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who submits an application to conduct underground 
coal mining operations.



Sec. 912.784  Underground mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct underground coal mining.



Sec. 912.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.



Sec. 912.795  Small operator assistance.

    Part 795 of this chapter, Small Operator Assistance, shall apply to 
any person making application for assistance under the small operator 
assistance program.



Sec. 912.800  General requirements for bonding of surface coal mining and 

reclamation operations.

    Part 800 of this chapter, General Requirements for Bonding of 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, shall apply to all surface coal mining and reclamation 
operations.



Sec. 912.815  Performance standards--coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person conducting coal exploration 
operations.

[[Page 515]]



Sec. 912.816  Performance standards--surface mining activities.

    Part 816 of this chapter, Permanent Program Performance Standards--
Surface Mining Activities, shall apply to any person who conducts 
surface coal mining and reclamation operations.



Sec. 912.817  Performance standards--underground mining activities.

    Part 817 of this chapter, Permanent Program Performance Standards--
Underground Mining Activities, shall apply to any person who conducts 
underground coal mining operations.



Sec. 912.819  Special performance standards--auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 912.822  Special performance standards--operations in alluvial valley 

floors.

    Part 822 of this chapter, Special Permanent Program Performance 
Standards--Operations in Alluvial Valley Floors, shall apply to any 
person who conducts surface coal mining and reclamation operations on 
alluvial valley floors.



Sec. 912.823  Special performance standards--operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmlands.



Sec. 912.824  Special performance standards--mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface coal mining operations constituting mountaintop removal mining.



Sec. 912.827  Special performance standards--coal processing plants and 

support facilities not located at or near the minesite or not within the 

permit area for a mine.

    Part 827 of this chapter, Special Permanent Program Performance 
Standards--Coal Processing Plants and Support Facilities Not Located at 
or Near the Minesite or Not Within the Permit Area for a Mine, shall 
apply to any person who conducts surface coal mining and reclamation 
operations which includes the operation of coal processing plants and 
support facilities not located at or near the minesite or not within the 
permit area for a mine.



Sec. 912.828  Special performance standards--in situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts in 
situ processing activities.



Sec. 912.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all exploration and surface coal mining and reclamation operations.
    (b) The Secretary will furnish a copy of each inspection report 
regarding inspections conducted pursuant to this section to the Office 
of the Idaho Attornery General upon request.



Sec. 912.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall apply when 
enforcement action is required for violations on surface coal mining and 
reclamation operations.
    (b) The Office will furnish a copy of each enforcement action and 
order to show cause issued pursuant to this section to the Office of the 
Idaho Attorney General upon request.



Sec. 912.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply when civil 
penalties are assessed for violations on surface coal mining and 
reclamation operations.

[[Page 516]]



Sec. 912.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 912.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19462, May 29, 1986]



PART 913_ILLINOIS--Table of Contents



Sec.
913.1 Scope.
913.10 State regulatory program approval.
913.15 Approval of Illinois regulatory program amendments.
913.16 [Reserved]
913.17 State regulatory program provisions and amendments disapproved.
913.20 Approval of Illinois abandoned mine land reclamation plan.
913.25 Approval of Illinois abandoned mine land reclamation plan 
          amendments.
913.30 State-Federal cooperative agreement.

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



Sec. 913.1  Scope.

    This part contains all rules applicable only within Illinois that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[47 FR 23883, June 1, 1982]



Sec. 913.10  State regulatory program approval.

    The Secretary conditionally approved the Illinois regulatory 
program, as submitted on March 3, 1980, amended and clarified on June 
16, 1980, resubmitted on December 22, 1981, clarified in a meeting with 
OSM on March 18 and 19, 1982, and clarified in material submitted April 
13, 1982, effective June 1, 1982. He fully approved the Illinois 
regulatory program, as amended on March 28, 1986, and March 22, 1987, 
effective September 6, 1989. Copies of the approved program are 
available at:
    (a) Illinois Department of Natural Resources, Office of Mines and 
Minerals, Land Reclamation Division, One Natural Resources Way, 
Springfield, Illinois 62701-1787.
    (b) Illinois Department of Natural Resources, Office of Mines and 
Minerals, Land Reclamation Division, Southern District Field Office, 503 
E. Main Street, Benton, IL 62812.
    (c) Office of Surface Mining Reclamation and Enforcement, 
Indianapolis Field Office, Minton-Capehart Federal Building, 575 North 
Pennsylvania Street, Room 301, Indianapolis, IN 46204.

[64 FR 20166, Apr. 26, 1999, as amended at 69 FR 42870, July 19, 2004]



Sec. 913.15  Approval of Illinois regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
March 3, 1980........................  November 23, 1982......  62 IAC 1823.14(a).
November 30, 1982....................  May 25, 1983...........  62 IAC 1807.11(d), 1816.64(a).
July 27, 1983........................  October 13, 1983.......  62 IAC 1786.19(h).
August 11, 1983......................  November 10, 1983......  62 IAC 1817.65, 1843.12.
March 16, 1984.......................  September 28, 1984.....  62 IAC 1785.17(a).
September 27, 1984...................  January 11, 1985.......  62 IAC 1816.190, 1817.190.
December 23, 1983....................  October 30, 1985.......  62 IAC 1850.
May 30, 1985, June 2, 1986...........  December 10, 1986......  62 IAC 1816.111 through 117, 1817.111 through
                                                                 117, 1823, 1825.
March 28, 1986, May 22, 1987.........  October 25, 1988,        62 IAC 1700, 1701, 1705, 1760, 1761, 1762, 1764,
                                        January 4, 1989.         1770 through 1780, 1782 through 1788, 1795,
                                                                 1800, 1801, 1805 through 1808, 1815 through
                                                                 1819, 1824 through 1828, 1840, 1843, 1845.

[[Page 517]]

 
July 17, 1989........................  August 29, 1990........  62 IAC 1700.11; 1701; 1761.11; 1761.12; 1772.12;
                                                                 1773.5, .11, .15, .17, .19, .20, .21; 1774.15,
                                                                 .17; 1778.13, .14; 1779.12; 1780.16, .21, .31;
                                                                 1783.12; 1784.14, .17, .21; 1800.21, .40, .60;
                                                                 1816.49, .61, .64, .67, .68, .83, .97, .99,
                                                                 .102; 1817.49, .61, .64, .66, .67, .68, .83,
                                                                 .97, .122; 1843.11; 1846.
July 26, 1990........................  May 6, 1991............  62 IAC 1700.11(d), (e); 1761.11(a), .12;
                                                                 1772.12(b)(8)(D); 1773.15(b)(1), .20(b)(2)(B),
                                                                 (c)(2), .21(b); 1778.13(b), (c)(5), (i), (j),
                                                                 .14(c), (e); 1779.12, (b); 1780.16(a)(1)(B)(i),
                                                                 .21(f)(3)(C), (D)(v), .31(a)(1), (b);
                                                                 1783.12(b); 1784.14(e)(3)(C)(v), .17(a)(1),
                                                                 (b), .21(a)(1)(B)(i), (2)(C); 1800.21(d),
                                                                 .40(a)(2), (b)(2), (e); 1816.49(a)(1), (10),
                                                                 .67, .97(b); 1817.49(a)(1), (10), .66(d), .67,
                                                                 .97(b); 1843.11; 1846.5, .14(a)(3).
March 5, 1991........................  August 2, 1991.........  1773.19(b)(1), (2), (3); 20 ILCR 720 Sec.
                                                                 2.11(d).
February 1, 1991.....................  December 13, 1991......  62 IAC 1700.11(a), (a)(2), (c); 1701, appendix
                                                                 A; 1702; 1761.11(a), (d)(2), .12(c), (1), (2);
                                                                 1772.11(b)(5), 14(a), (b); 1773.5, .11(a),
                                                                 (b)(1)(C), .15(b)(1), (B), .17(h);
                                                                 1774.13(b)(1); 1778.14(c); 1780.16(b)(3)(B),
                                                                 .21(f), .37(a)(5), (7), (b), .39; 1784.14(e),
                                                                 .21(a)(2)(C), .24(a)(5), (7), (b), .30;
                                                                 1816.49(a)(1), (3)(A), (B), (5)(A), (10)(B),
                                                                 .68(a)(18), (19), .84(b)(2), (f), .111(a)(4),
                                                                 (b)(1), (5), .116(a)(2)(C), (D), (E), (3), (C),
                                                                 (D), (E), (4)(A)(iii), (D), (b)(2), .117(a),
                                                                 (1), (3), (5), (b), (c), (d)(1) through (6),
                                                                 .150 (a) through (f), .151, appendix A;
                                                                 1817.49(a)(1), (3)(A), (B), (5)(A), (10)(B),
                                                                 .68(a)(18), (19), .84(b)(2), (f),
                                                                 .116(a)(2)(C), (D), (E), (3), (C), (D), (E),
                                                                 (b)(2), .117(a), (1), (3), (5), (b), (c),
                                                                 (d)(1) through (6), .150 (a) through (f), .151;
                                                                 1823.14(g), .15(b)(3).
June 22, 1992........................  September 3, 1993......  62 IAC 1701, appendix A; 1702.11(a)(2), (f)(1),
                                                                 (2), .17(c)(1), (2), (3); 1705.21; 1761.11(g),
                                                                 .12(b)(2), (c), (4), (d)(1), (g); 1764.19(d);
                                                                 1772.12(e)(2); 1773.13(a)(1)(E), .15(b)(1)(B),
                                                                 (3), (c)(12), (d), .20(b)(2)(B), .21(c);
                                                                 1774.11(c), .13(b)(2)(E), (d)(2), (4), (5),
                                                                 .15(f); 1775; 1777.17(a) through (d);
                                                                 1778.15(a), (e); 1779.19(b); 1780.21(b)(1)(B),
                                                                 .38; 1783.19(b); 1784.14(b)(1)(B), .27;
                                                                 1785.13(a), (g); 1800.11(a), .40(a)(3), (e),
                                                                 (f) through (h), .50(c)(2) through (5);
                                                                 1816.49(a)(9)(B), (c)(2), .84(b)(2),
                                                                 .116(a)(3)(A) through (E), (b)(2), .117(a)(1),
                                                                 (2), (5), (d)(6), .151(b); 1817.49(a)(9)(B),
                                                                 (c)(2), .84(b)(2), .116(a)(3)(A) through (E),
                                                                 (b)(2), .117(a)(1), (2), (5), (d)(6), .151(b),
                                                                 .182(d); 1827.12(b); 1843.12(i), .13(c), (e)
                                                                 through (k), .14(a)(2), .15(a), .16, .17, .20,
                                                                 .21; 1845.12(c), (d), .13(b)(4)(A) through (D),
                                                                 .17(b), (b)(2)(B), (c), .18(a)(2), (c), .19,
                                                                 .20(a); 1846.17(b)(1), .18(b); 1847.1 through
                                                                 .9; 1848.1, .2, .3, 5 through .9, .11, .12,
                                                                 .13, .15 through .22.
August 17, 1993......................  February 2, 1994.......  225 ILCS 720 Sec. Sec.  2.11 (a), (b), (c),
                                                                 (g); 6.01(b).
September 9, 1994....................  November 21, 1994......  225 ILCS 720, Sec. Sec.  2.02(b); 3.15(e);
                                                                 9.07(a).
March 3, 1995........................  July 11, 1995..........  Executive Order Number 2, Sec. Sec.  I(C),
                                                                 II(C), III, IV(F).
February 3, 1995.....................  May 29, 1996...........  62 IAC 1700.11, .16; 1701.Appendix A; 1761.11;
                                                                 1772.11, .12; 1773.15, .20, .22 through .25;
                                                                 1774.13; 1778.15; 1779.25; 1780.23; 1783.22;
                                                                 1784.15; 1785.17, .23; 1795.1, .4, .6, .9, .12;
                                                                 1800.5, .20, .21; 1816/1817.13, .22, .41, .46,
                                                                 .79, .97, .116, .117, .151, 190; 1816. appendix
                                                                 A; 1817.121; 1825.14; 1840.11, .17; 1843.13,
                                                                 .23; 1845.12; 1847.3, .4 through .7; 1848.5;
                                                                 1850.14 through .17.
March 4, 1996........................  July 18, 1996..........  Self-bonding; 62 IAC 1800.4(c) through (f);
                                                                 1800.5(c); 1800.11(a), (e); 1800.23.
June 22, 1992........................  October 22, 1997.......  62 IAC 1816.116(a)(2)(C); 1817.116(a)(2)(C); Non-
                                                                 augmentation Policy Statement.
August 5, 1997.......................  April 8, 1998..........  62 IAC 1816.116(c)(3)(F); 1817.116(a)(3)(F);
                                                                 Interpretation Statement, Program Procedures,
                                                                 and Evaluation Criteria for 62 IAC
                                                                 1816.116(a)(3)(F) and 1817.116(a)(3)(F).
March 28, 1996 and February 26, 1998.  February 9, 1999.......  225 ILCS 720/1.03, 7.03, and 7.04; 62 IAC 1701.
                                                                 appendix A; 1761.12; 1764.13 and .15; 1773.11
                                                                 and .15; 1774.11 and .13; 1778.14; 1785.17;
                                                                 1800.40; 1816.46, .49, .64, .66, .67, .83,
                                                                 .116, and .117; 1817.46, .49, .61, .62, .66,
                                                                 .67, .83, .116, and .117; 1823.1, .11, .12, and
                                                                 .14; 1825.11; 1840.1 and .11; 1847.3 and .9;
                                                                 1850.13, .14, .15, and .16.
August 2, 1999.......................  December 6, 1999.......  62 IAC 1701. appendix A; 1784.14(b)(1),
                                                                 (b)(1)(A) (i) and (ii), (b)(1)(B), (e)(3)(D);
                                                                 1784.20(a), (a)(1) and (2), (b), (b)(1) through
                                                                 (10); 1817.41(j); 1817.121(a)(1) through (4),
                                                                 (c)(1) through (3).
August 2, 1999.......................  December 27, 1999......  62 IAC 1800.15(b)(2); 1847.3(a).
August 2, 1999.......................  April 7, 2000..........  62 IAC 1701.Appendix A; 1780.25(a), (a)(1)(A),
                                                                 (a)(2), (a)(2)(A) and (B), (a)(3), (a)(3)(A),
                                                                 (b), (f); 1784.14(a); 1784.16(a), (a)(1)(A),
                                                                 (a)(2), (a)(2)(A) and (B), (a)(3), (a)(3)(A)
                                                                 and (B), (b)(1), (f); 1784.20(b), (b)(2);
                                                                 1800.13(c), (d)(2); 1800.40(a)(1), (2), and
                                                                 (3), (b)(2); 1816.46(c)(2); 1816.49(a)(1) and
                                                                 (2), (a)(4)(A) and (B), (a)(5), (a)(6)(A),
                                                                 (a)(10)(A) and (C), (a)(11), (b)(9)(A) and (C),
                                                                 (c)(1) and (2), (c)(2)(B), (c)(2)(B)(i) and
                                                                 (ii); 1816.89(b); 1816.111(b)(5), (d);
                                                                 1816.116(a), (b)(2); 1817.41(c), (d), (e);
                                                                 1817.46(c)(2); 1817.49(a)(1) and (3), (a)(4)(A)
                                                                 and (B), (a)(5), (a)(6)(A), (a)(10)(A), (B),
                                                                 and (C), (a)(11), (b)(7) and (8); (b)(9)(A) and
                                                                 (C), (c)(1), (c)(2), (c)(2)(B)(i) and (ii);
                                                                 1817.89(b); 1817.101(a); 1817.111(d);
                                                                 1817.116(a)(2)(C), (b)(2); 1823.14(d);
                                                                 1840.14(b), (c)(2).
June 28, 2001........................  November 21, 2001......  225 ILCS 720/1.03(a)(9-a), 1.04(a) and (c), 105,
                                                                 2.08(e), 6.07(f), 6.08(i), 7.03(b), 7.04(a),
                                                                 9.01.

[[Page 518]]

 
October 15, 2001.....................  May 17, 2002...........  62 IAC 1700.11(a), (b); 1700.12(a), (d);
                                                                 1773.12; 1773.13; 1773.15(a), (b), (c);
                                                                 1777.17; 1778.15(e); 1780.21(a), (b), (e), (f),
                                                                 (g), (i), (j); 1784.14(a), (e); 1785.23(d),
                                                                 (e); 1800.11(a); 1800.40(a), (c), (d), (e);
                                                                 1816.41(c), (d), (e); 1816.113(b); 1816.116(a);
                                                                 1816.117(a), (c), (d), (e); 1816.190(b);
                                                                 1817.64; 1817.66(b); 1817.113(b); 1817.116(a);
                                                                 1817.117(a), (c), (d), (e); 1825.14(a), (b),
                                                                 (e); 1843.13(a), (c), (d); 1846.17(b);
                                                                 1847.3(a), (b), (e), (f), (i), (j); 1847.9.
April 8, 2002........................  July 7, 2003...........  62 IAC 1701.Appendix A; 1761.5; 1761.11;
                                                                 1761.12; 1761.14; 1761.15; 1761.16; 1761.17;
                                                                 1762.14; 1762.15; 1772.12; 1773.13(a)(1)(E),
                                                                 (d); 1773.15(c)(3)(B), (c)(11), (c)(13);
                                                                 1778.15(e); 1778.16(c); 1780.31(a)(2); 1780.33;
                                                                 1784.17(a)(2); 1784.18; 1800.40(b)(2);
                                                                 1816.116(a)(2)(C); 1847.9(a).
December 10, 2004....................  May 19, 2005...........  225 ILCS 720/1.04; 62 IAC 1700.17, 1700.18;
                                                                 1761.11(e)(1), 1761.14(b), 1761.16(b)(3);
                                                                 1762.15; 1772.12(b)(14); 1773.15(c)(3).
February 1, 2005.....................  November 29, 2005......  62 IAC 1816.116(a)(2)(C), (a)(3)(C) and
                                                                 (a)(3)(E), (a)(4), (a)(4)(C) and (D), (a)(6);
                                                                 1816. appendix A; 1817.42; 1817.43(a)(2)(D),
                                                                 (b)(3), (c)(3); 1817.116(a)(2)(C), (a)(3)(C)
                                                                 and (a)(3)(E), (a)(4), (b)(2); 1817.121(c),
                                                                 (c)(2); 1823.15(b)(2) and (b)(3).
----------------------------------------------------------------------------------------------------------------


[62 FR 9937, Mar. 5, 1997, as amended at 62 FR 54768, Oct. 22, 1997; 63 
FR 17098, Apr. 8, 1998; 64 FR 6200, Feb. 9, 1999; 64 FR 68030, Dec. 6, 
1999; 64 FR 72277, Dec. 27, 1999; 65 FR 18242, Apr. 7, 2000; 66 FR 
58375, Nov. 21, 2001; 67 FR 35035, May 17, 2002; 68 FR 40141, July 7, 
2003; 70 FR 28824, May 19, 2005; 70 FR 71400, Nov. 29, 2005]



Sec. 913.16  [Reserved]



Sec. 913.17  State regulatory program provisions and amendments disapproved.

    (a) The proposed definition of ``previously mined area'' in 62 IAC 
1701.5, as submitted by Illinois on May 22, 1987, is disapproved to the 
extent that it includes lands subject to the reclamation standards of 
the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 
et seq.).
    (b) In 62 IAC 1761.11(c) and 1761.12(e)(1), as submitted by Illinois 
on May 22, 1987, the phrase ``publicly owned'' is disapproved to the 
extent that it modifies the term ``places listed on the National 
Register of Historic Places'' or an equivalent term.
    (c) The proposed revisions to the definition of ``valid existing 
rights'' in 62 IAC 1701.Appendix A, also known as 62 IAC 1701.5, as 
submitted by Illinois on May 22, 1987, are disapproved to the extent 
that they expand the ``needed for and adjacent'' test to allow claims of 
valid existing rights for lands for which the applicant obtained the 
requisite property rights after August 3, 1977.
    (d) In 62 IAC 1816.68(a) and 1817.68(a), as submitted by Illinois on 
July 17, 1989, the deletion of ``wind velocity and direction'' from the 
list of factors required in the blast records is disapproved.

[53 FR 43138, Oct. 25, 1988, as amended at 54 FR 123, Jan. 4, 1989; 55 
FR 35314, Aug. 29, 1990]



Sec. 913.20  Approval of Illinois abandoned mine land reclamation plan.

    The Secretary approved the Illinois abandoned mine land reclamation 
plan, as submitted on July 20, 1980, effective June 1, 1982. Copies of 
the approved plan are available at:
    (a) Illinois Department of Natural Resources, Office of Mines and 
Minerals, Abandoned Mine Land Reclamation Division, One Natural 
Resources Way, Springfield, Illinois 62701-1787.
    (b) Office of Surface Mining Reclamation and Enforcement, 
Indianapolis Field Office, Minton-Capehart Federal Building, 575 North 
Pennsylvania Street, Room 301, Indianapolis, IN 46204-1521.

[64 FR 20166, Apr. 26, 1999, as amended at 69 FR 42870, July 19, 2004]



Sec. 913.25  Approval of Illinois abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this

[[Page 519]]

table are listed in order of the date of final publication in the 
Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
January 19, 1984.....................  June 11, 1984..........  Emergency reclamation program.
September 6, 1989....................  February 14, 1990......  Non-coal reclamation.
June 29, 1990........................  November 2, 1990.......  Procedures for public participation, ranking and
                                                                 selection of reclamation projects, liens, bids
                                                                 and contracts.
August 13, 1992......................  January 14, 1993.......  Ch. 96\1/2\, par. 8001.03; 8002.13.
July 2, 1993.........................  September 21, 1993.....  20 ILCS 1920 Sec. Sec.  2.11, .13; 62 IAC
                                                                 2501.37.
April 10, 1995.......................  July 11, 1995..........  Executive Order No. 2 (1995), part I(C); part
                                                                 II(D); part III(A), (C); part IV(F).
October 22, 1998.....................  January 22, 1999.......  Illinois Plan Narrative; 62 IAC 2501.1, .4, .7,
                                                                 .8, .10, .11, .13, .16, .19, .22, .25, .28,
                                                                 .31, and .40; 44 IAC 1150.10, 20, .30, .100,
                                                                 .200, .300, .400, .500, .700, .800, .900,
                                                                 .1000, .1100, .1200, .1300, .1325, and .1350.
----------------------------------------------------------------------------------------------------------------


[62 FR 9938, Mar. 5, 1997, as amended at 64 FR 3419, Jan. 22, 1999; 69 
FR 42870, July 19, 2004]



Sec. 913.30  State-Federal cooperative agreement.

    The Governor of the State of Illinois (Governor) and the Secretary 
of the Department of the Interior (Secretary) enter into a Cooperative 
Agreement (Agreement) to read as follows:

       Article I: Introduction, Purposes and Responsible Agencies

    A. Authority: This Agreement is authorized by section 523(c) of the 
Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. 1273(c), 
which allows a State with a permanent regulatory program approved by the 
Secretary under section 503 of SMCRA, 30 U.S.C. 1253, to elect to enter 
into an agreement for State regulation of surface coal mining and 
reclamation operations (including surface operations and surface impacts 
incident to underground mining operations) on Federal lands. This 
Agreement provides for State regulation of coal exploration operations 
not subject to 43 CFR part 3480, subpart3480 through 3487, and surface 
coal mining and reclamation operations in Illinois on Federal lands (30 
CFR Chapter VII Subchapter D), consistent with SMCRA and State and 
Federal laws governing such activities and the Illinois State Program 
(Program).
    B. Purposes: The purposes of this Agreement are to (a) foster 
Federal-State cooperation in the regulation of surface coal mining and 
reclamation operations and coal exploration operations not subject to 43 
CFR part 3480, subparts 3480 through 3487; (b) minimize 
intergovernmental overlap and duplication; and (c) provide uniform and 
effective application of the Program on all lands in Illinois in 
accordance with SMCRA, the Program, and this Agreement.
    C. Responsible Administrative Agencies: The Land Reclamation 
Division (LRD) of the Illinois Department of Mines and Minerals will be 
responsible for administering this Agreement on behalf of the Governor. 
The Office of Surface and Mining Reclamation and Enforcement (OSMRE) 
will administer this Agreement on behalf of the Secretary.

                       Article II: Effective Date

    After being signed by the Secretary and the Governor, this Agreement 
will take effect 30 days after publication in the Federal Register as a 
final rule. This Agreeement will remain in effect until terminated as 
provided in Article XI.

                        Article III: Definitions

    The terms and phrases used in this Agreement which are defined in 
SMCRA, 30 CFR parts 700, 701 and 740, the Program, and this Agreement 
including the State Act [Ill. Rev. Stat. Ch 96\1/2\, Section 7901 et 
seq. (1985)], and the rules and regulations promulgated pursuant to 
those Acts, will be given the meanings set forth in said definitions. 
Where there is a conflict between the above reference State and Federal 
definitions, the definitions used in the Program will apply.

                        Article IV: Applicability

    In accordance with the Federal lands program, the laws, regulations, 
terms and conditions of the Program and this Agreement are applicable to 
Federal lands in Illinois except as otherwise stated in this Agreement, 
SMCRA, 30 CFR 740.4, 740.11(a) and 745.13, and other applicable laws, 
Executive Orders, or regulations.

                     Article V: General Requirements

    The Governor and the Secretary affirm that they will comply with all 
the provisions of this Agreement.
    A. Authority of State Agency: IRD has and will continue to have the 
authority under State law to carry out this Agreement.

[[Page 520]]

    B. Funds: 1. Upon application by LRD and subject to appropriations, 
OSMRE will provide the State with the funds to defray the costs 
associated with carrying out its responsibilities under this Agreement 
as provided in section 705(c) of SMCRA, the grant agreement, and 30 CFR 
735.16. Such funds will cover the full cost incurred by LRD in carrying 
out these responsibilities, provided that such cost does not exceed the 
estimated cost the Federal government would have expended on such 
responsibilities in the absence of this Agreement.
    2. OSMRE's Springfield Field Office and OSMRE's Eastern Field 
Operations office will work with LRD to estimate the amount the Federal 
government would have expended for regulation of Federal lands in 
Illinois in the absence of this Agreement.
    3. OSMRE and the State will discuss the OSMRE Federal lands cost 
estimate. After resolution of any issues, LRD will include the Federal 
lands cost estimate in the State's annual regulatory grant application 
submitted to OSMRE's Springfield Field Office.
    The State may use the existing year's budget totals, adjusted for 
inflation and workload considerations in estimating regulatory costs for 
the following grant year. OSMRE will notify LRD as soon as possible if 
such projections are unrealistic.
    4. If LRD applies for a grant but sufficient funds have not been 
appropriated to OSMRE, OSMRE and LRD will promptly meet to decide on 
appropriate measures that will insure that surface coal mining and 
reclamation operations on Federal lands in Illinois are regulated in 
accordance with the Program. If agreement cannot be reached, either 
party may terminate the Agreement in accordance with Article XI of this 
Agreement.
    5. Funds provided to the LRD under this Agreement will be adjusted 
in accordance with Office of Management and Budget Circular A-102, 
Attachment E.
    C. Reports and Records: LRD will make annual reports to OSMRE 
containing information with respect to compliance with the terms of this 
Agreement pursuant to 30 CFR 745.12(d). Upon request, LRD and OSMRE will 
exchange information developed under this Agreement, except where 
prohibited by Federal or State law.
    OSMRE will provide LRD with a copy of any final evaluation report 
prepared concerning State administration and enforcement of this 
Agreement. LRD comments on the report will be appended before 
transmission to the Congress, unless necessary to respond to a request 
by a date certain, or to other interested parties.
    D. Personnel: Subject to adequate appropriations and grant awards, 
the LRD will maintain the necessary personnel to fully implement this 
Agreement in accordance with the provisions of SMCRA, the Federal lands 
program, and the Program.
    E. Equipment and Laboratories: Subject to adequate appropriations 
and grant awards, the LRD will assure itself access to equipment, 
laboratories, and facilities with which all inspections, investigations, 
studies, tests, and analyses can be performed which are necessary to 
carry out the requirements of the Agreement.
    F. Permit Application Fees and Civil Penalties: The amount of the 
fee accompanying an application for a permit for surface coal mining and 
reclamation operations on Federal lands in Illinois will be determined 
in accordance with section 2.05 of the Illinois State Act, 62 Ill. Adm. 
Code 1771.25, and the applicable provisions of the Program and Federal 
law. All permit fees, civil penalties and fines collected from 
operations on Federal lands will be retained by the State and will be 
deposited with the State Treasurer. Permit fees will be considered 
program income. Civil penalties and fines will not be considered program 
income. The financial status report submitted pursuant to 30 CFR 735.26 
will include a report of the amount of fees, penalties, and fines 
collected during the State's prior fiscal year.

            Article VI: Review of Permit Application Package

               A. Submission of Permit Application Package

    1. LRD and the Secretary require an applicant proposing to conduct 
surface coal mining and reclamation operations on Federal lands covered 
by this Agreement to submit a permit application package (PAP) in an 
appropriate number of copies to LRD. LRD will furnish OSMRE and other 
Federal agencies with an appropriate number of copies of the PAP. The 
PAP will be in the form required by LRD and will include any 
supplemental information required by OSMRE, the Federal land management 
agency, and other agencies with jurisdiction or responsibility over 
Federal lands affected by the operations proposed in the PAP.
    At a minimum, the PAP will satisfy the requirements of 30 CFR 
740.13(b) and include the information necessary for LRD to make a 
determination of compliance with the Program and for OSMRE and the 
appropriate Federal agencies to make determinations of compliance with 
applicable requirements of SMCRA, the Federal lands program, and other 
Federal laws, Executive Orders, and regulations for which they are 
responsible.
    2. For any outstanding or pending permit applications on Federal 
lands being processed by OSMRE prior to the effective date of this 
Agreement, OSMRE will maintain sole permit decision responsibility. 
After the final decision, all additional responsibilities shall pass to 
LRD pursuant to the terms of this Agreement.

[[Page 521]]

   B. Review Procedures Where There is No Leased Federal Coal Involved

    1. LRD will assume the responsibilities for review of permit 
applications where there is no leased Federal coal to the extent 
authorized in 30 CFR 740.4(c) (1), (2), (4), (6) and (7). In addition to 
consultation with the Federal Land Management Agency pursuant to 30 CFR 
740.4(c)(2), LRD will be responsible for obtaining, except for non-
significant revisions, the comments and determinations of other Federal 
agencies with jurisdiction or responsibility over Federal lands affected 
by the operations proposed in the PAP. LRD will request such Federal 
agencies to furnish their findings or any requests for additional 
information to LRD within 45 calendar days of the date of receipt of the 
PAP. OSMRE will assist LRD in obtaining this information, upon request.
    Responsibilities and decisions which can be delegated to LRD under 
other applicable Federal laws may be specified in working agreements 
between OSMRE and the State, with the concurrence of any Federal agency 
involved, and without amendment to this agreement.
    2. LRD will assume primary responsibility for the analysis, review 
and approval or disapproval of the permit application component of the 
PAP required by 30 CFR 740.13 for surface coal mining and reclamation 
operations in Illinois on Federal lands not requiring a mining plan 
pursuant to the Mineral Leasing Act (MLA). LRD will review the PAP for 
compliance with the Program and State Act and regulations. LRD will be 
the primary point of contact for applicants regarding decisions on the 
PAP and will be responsible for informing the applicant of 
determinations.
    3. The Secretary will make his determinations under SMCRA that 
cannot be delegated to the State. Some of which have been delegated to 
OSMRE.
    4. OSMRE and LRD will coordinate with each other during the review 
process as needed. OSMRE will provide technical assistance to LRD when 
requested, if available resources allow. LRD will keep OSMRE informed of 
findings made during the review process which bear on the 
responsibilities of OSMRE or other Federal agencies. OSMRE may provide 
assistance to LRD in resolving conflicts with Federal land management 
agencies. OSMRE will be responsible for ensuring that any information 
OSMRE receives from an applicant is promptly sent to LRD. OSMRE will 
have access to LRD files concerning operations on Federal lands. OSMRE 
will send to LRD copies of all resulting correspondence between OSMRE 
and the applicant that may have a bearing on decisions regarding the 
PAP. The Secretary reserves the right to act independently of LRD to 
carry out his responsibilities under laws other than SMCRA.
    5. LRD will make a decision on approval or disapproval of the permit 
on Federal lands.
    (a) Any permit issued by LRD will incorporate any lawful terms or 
conditions imposed by the Federal land management agency, including 
conditions relating to post-mining land use, and will be conducted on 
compliance with the requirements of Federal land management agency.
    (b) The permit will include lawful terms and conditions required by 
other applicable Federal laws and regulations.
    (c) After making its decision on the PAP, LRD will send a notice to 
the applicant, OSMRE, the Federal land management agency, and any agency 
with jurisdiction or responsibility over Federal lands affected by the 
operations proposed in the PAP.
    A copy of the permit and written findings will be submitted to OSMRE 
upon request.

       C. Review Procedures Where Leased Federal Coal is Involved

    1. LRD will assume the responsibilities listed in 30 CFR 740.4(c) 
(1), (2), (3), (4), (6) and (7), to the extent authorized.
    In accordance with 30 CFR 740.4(c)(1), LRD will assume primary 
responsibility for the analysis, review and approval, disapproval or 
conditional approval of the permit application component of the PAP for 
surface coal mining and reclamation operations in Illinois where a 
mining plan is required, including applications for revisions, renewals 
and transfer sale and assignment of such permits. OSMRE will, at the 
request of the State, assist to the extent possible in this analysis and 
review.
    LRD will be the primary point of contact for applicants regarding 
the review of the PAP for compliance with the Program and State law and 
regulations. LRD will be responsible for informing the applicant of all 
joint State-Federal determinations.
    LRD will to the extent authorized, consult with the Federal land 
management agency and the Bureau of Land Management (BLM) pursuant to 30 
CFR 740.4(c)(2) and (3), respectively. On matters concerned exclusively 
with regulations under 43 CFR part 3480, Subparts 3480 through 3487, BLM 
will be primary contact with the applicant. BLM will inform LRD of its 
actions and provide LRD with a copy of documentation on all decisions.
    LRD will send the OSMRE copies of any correspondence with the 
applicant and any information received from the applicant regarding the 
PAP. OSMRE will send to LRD copies of all OSMRE correspondence with the 
applicant which may have a bearing on the PAP. As a matter of practice, 
OSMRE will not independently initiate contacts with applicants regarding 
completeness or

[[Page 522]]

deficiences of the PAP with respect to matters covered by the Program.
    LRD will also be responsible for obtaining the comments and 
determinations of other Federal agencies with jurisdiction or 
responsibility over Federal lands affected by the operations proposed in 
the PAP. LRD will request all Federal agencies to furnish their findings 
or any requests for additional information to LRD within 45 days of the 
date of receipt of the PAP. OSMRE will assist LRD in obtaining this 
information, upon request of LRD.
    LRD will be responsible for approval and release of performance 
bonds under 30 CFR 740.4(c)(4) in accordance with Article IX of this 
agreement, and for review and approval of exploration operations not 
subject to 43 CFR part 3480, subparts 3480-3487, under 30 CFR 
740.4(c)(6).
    LRD will prepare documentation to comply with the requirements of 
NEPA under 30 CFR 740.4(c)(7); however, OSMRE will retain the 
responsibility for the exceptions in 30 CFR 740.4(c)(7)(i)-(vii).
    2. The Secretary will concurrently carry out his responsibilities 
under 30 CFR 740.4(a) that cannot be delegated to LRD under the Federal 
lands program, MLA, the National Environmental Policy Act (NEPA), this 
Agreement, and other applicable Federal laws. The Secretary will carry 
out these responsibilities in a timely manner and will avoid, to the 
extent possible, duplication of the responsibilities of the State as set 
forth in this Agreement and the Program. The Secretary will consider the 
information in the PAP and, where appropriate, make decisions required 
by SMCRA, MLA, NEPA, and other Federal laws.
    Responsibilities and decisions which can be delegated to the State 
under other applicable Federal laws may be specified in working 
agreements between OSMRE and LRD, with concurrence of any Federal agency 
involved, and without amendment to this Agreement.
    Where necessary to make the determination to recommend that the 
Secretary approve the mining plan, OSMRE will consult with and obtain 
the concurrences of the BLM, the Federal land management agency and 
other Federal agencies as required.
    The Secretary reserves the right to act independently of LRD to 
carry out his responsibilities under laws other than SMCRA or provisions 
of SMCRA not covered by the Program, and in instances of disagreement 
over SMCRA and the Federal lands program.
    3. OSMRE will assist LRD in carrying out LRD's responsibilities by:
    (a) Coordinating resolution of conflicts and difficulties between 
LRD and other Federal agencies in a timely manner.
    (b) Assisting in scheduling joint meetings, upon request, between 
State and Federal agencies.
    (c) Where OSMRE is assisting LRD in reviewing the PAP, furnishing to 
LRD the work product within 50 calendar days of receipt of the State's 
request for such assistance, unless a different time is agreed upon by 
OSMRE and LRD.
    (d) Exercising its responsibilities in a timely manner, governed to 
the extent possible by the deadlines established in the Program.
    4. Review of the PAP: (a) OSMRE and LRD will coordinate with each 
other during the review process as needed. LRD will keep OSMRE informed 
of findings made during the review process which bear on the 
responsibilities of OSMRE or other Federal agencies. OSMRE will ensure 
that any information OSMRE receives which has a bearing on decisions 
regarding the PAP is promptly sent to LRD.
    (b) LRD will review the PAP for compliance with the Program and 
State law and regulations.
    (c) OSMRE will review the operation and reclamation plan portion of 
the permit application, and any other appropriate portions of the PAP 
for compliance with the non-delegable responsibilities of SMCRA and for 
compliance with the requirements of other Federal laws and regulations.
    (d) OSMRE and LRD will develop a work plan and schedule for PAP 
review and each will identify a person as the project leader. The 
project leaders will serve as the primary points of contact between 
OSMRE and LRD throughout the review process. Not later than 50 days 
after receipt of the PAP, unless a different time is agreed upon, OSMRE 
will furnish LRD with its review comments on the PAP and specify any 
requirements for additional data. To the extent practicable, LRD will 
provide OSMRE all available information that may aid OSMRE in preparing 
any findings.
    (e) LRD will prepare a State decision package, including written 
findings and supporting documentation, indicating whether the PAP is in 
compliance with the Program. The review and finalization of the State 
decision package will be conducted in accordance with procedures for 
processing PAPs agreed upon by LRD and OSMRE.
    (f) LRD may make a decision on approval or disapproval of the permit 
on Federal lands in accordance with the Program prior to the necessary 
Secretarial decision on the mining plan, provided that LRD advises the 
operator in the permit that Secretarial approval of the mining plan must 
be obtained before the operator may conduct coal development or mining 
operations on the Federal lease. LRD will reserve the right to amend or 
rescind any requirements of the permit to conform with any terms or 
conditions imposed by the Secretary in his approval of the mining plan.
    (g) The permit will include, as applicable, terms and conditions 
required by the lease

[[Page 523]]

issued pursuant to the MLA and by any other applicable Federal laws and 
regulations, including conditions imposed by the Federal land management 
agency relating to post-mining land use, and those of other affected 
agencies, and will be conditioned on compliance with the requirements of 
the Federal land management agency with jurisdiction.
    (h) After making its decision on the PAP, LRD will send a notice to 
the applicant, OSMRE, the Federal land management agency, and any agency 
with jurisdiction or responsibility over Federal land affected by 
operations proposed in the PAP. A copy of the written findings and the 
permit will also be submitted to OSMRE.
    5. OSMRE will provide technical assistance to LRD when requested, if 
available resources allow. OSMRE will have access to LRD files 
concerning operations on Federal lands.

   D. Review Procedures for Permit Revisions; Renewals; and Transfer 
                   Assignment or Sale of Permit Rights

    1. Any permit revision or renewal for an operation on Federal lands 
will be reviewed and approved or disapproved by LRD after consultation 
with OSMRE on whether such revision or renewal constitutes a mining plan 
modification pursuant to 30 CFR 746.18. OSMRE will inform LRD within 30 
days of receiving a copy of a proposed revision or renewal, whether the 
permit revision, or renewal constitutes a mining plan modification. 
Where approval of a mining plan modification is required, OSMRE and LRD 
will follow the procedures outlined in paragraphs C.1. through C.5. of 
this Article.
    2. OSMRE may establish criteria consistent with 30 CFR 746.18 to 
determine which permit revisions and renewals clearly do not constitute 
mining plan modifications.
    3. Permit revisions or renewals on Federal lands which are 
determined by OSMRE not to constitute mining plan modifications under 
paragraph D.1. of this Article or that meet the criteria for not being 
mining plan modifications as established under paragraph D.2. of this 
Article will be reviewed and approved following the procedures set forth 
in 62 Ill. Adm. Code 1774 and paragraphs B.1. through B.5. of this 
Article.
    4. Transfer, assignment or sale of permit rights on Federal lands 
shall be processed in accordance with 62 Ill. Adm. Code 1774 and 30 CFR 
740.13(e).

                        Article VII: Inspections

    A. LRD will conduct inspections on Federal lands in accordance with 
30 CFR 740.4(c)(5) and prepare and file inspection reports in accordance 
with the Program.
    B. LRD will, subsequent to conducting any inspection pursuant to 30 
CFR 740.4(c)(5), and on a timely basis, file with OSMRE a legible copy 
of the completed State inspection report.
    C. LRD will be the point of contact and primary inspection authority 
in dealing with the operator concerning operations and compliance with 
the requirements covered by the agreement, except as described 
hereinafter. Nothing in this Agreement will prevent inspections by 
authorized Federal or State agencies for purposes other than those 
covered by this Agreement. The Department may conduct any inspections 
necessary to comply with 30 CFR parts 842 and 843 and its obligations 
under laws other than SMCRA.
    D. OSMRE will ordinarily give LRD reasonable notice of its intent to 
conduct an inspection under 30 CFR 842.11 in order to provide State 
inspectors with an opportunity to join in the inspection.
    When OSMRE is responding to a citizen complaint of an imminent 
danger to the public health and safety, or of significant, imminent 
environmental harm to land, air or water resources, pursuant to 30 CFR 
842.11(b)(1)(ii)(C), it will contact LRD no less than 24 hours prior to 
the Federal inspection, if practicable, to facilitate a joint Federal/
State inspection. All citizen complaints which do not involve an 
imminent danger or significant, imminent environmental harm will be 
referred to LRD for action. The Secretary reserves the right to conduct 
inspections without prior notice to LRD to carry out his 
responsibilities under SMCRA.

                        Article VIII: Enforcement

    A. LRD will have primary enforcement authority under SMCRA 
concerning compliance with the requirements of this Agreement and the 
Program in accordance with 30 CFR 740.4(c)(5). Enforcement authority 
given to the Secretary under other Federal laws and Executive orders 
including, but not limited to, those listed in appendix A (attached) is 
reserved to the Secretary.
    B. During any joint inspection by OSMRE and LRD, LRD will have 
primary responsibility for enforcement procedures, including issuance of 
orders of cessation, notices of violation, and assessment of penalties. 
LRD will inform OSMRE prior to issuance of any decision to suspend or 
revoke a permit on Federal lands.
    C. During any inspection made solely by OSMRE or any joint 
inspection where LRD and OSMRE fail to agree regarding the propriety of 
any particular enforcement action, OSMRE may take any enforcement action 
necessary to comply with 30 CFR parts 843 and 845. Such enforcement 
action will be based on the standards in the Program, SMCRA, or both, 
and will be taken using the procedures and penalty system contained in 
30 CFR parts 843 and 845.
    D. LRD and OSMRE will promptly notify each other of all violations 
of applicable

[[Page 524]]

laws, regulations, orders, or approved mining permits subject to this 
Agreement, and of all actions taken with respect to such violations.
    E. Personnel of LRD and the Department of the Interior, including 
OSMRE, will be mutually available to serve as witness in enforcement 
actions taken by either party.
    F. This Agreement does not affect or limit the Secretary's authority 
to enforce violations of Federal laws other than SMCRA.

                            Article IX: Bonds

    A. LRD and the Secretary will require each operator who conducts 
operations on Federal lands to submit a performance bond payable to the 
State of Illinois and the United States to cover the operator's 
responsibilities under SMCRA and the Program. Such performance bond will 
be conditioned upon compliance with all requirements of the SMCRA, the 
Program, State rules and regulations, and any other requirements imposed 
by the Secretary or the Federal land management agency. Such bond will 
provide that if this Agreement is terminated, the portion of the bond 
covering the Federal lands will be payable only to the United States. 
LRD will advise OSMRE of annual adjustments to the performance bond 
pursuant to the program.
    B. Performance bonds will be subject to release and forfeiture in 
accordance with the procedures and requirements of the Program. Where 
surface coal mining and reclamation operations are subject to an 
approved mining plan, a performance bond shall be released by the State 
after the release is concurred in by OSMRE.
    C. Submission of a performance bond does not satisfy the 
requirements for a Federal lease bond required by 43 CFR subpart3474 or 
lessee protection bond required in addition to a performance bond, in 
certain circumstances, by section 715 of SMCRA.

Article X: Designating Land Areas Unsuitable for All or Certain Types of 
Surface Coal Mining and Reclamation Operations and Activities and Valid 
            Existing Rights and Compatibility Determinations

                       A. Unsuitability Petitions

    1. Authority to designate Federal lands as unsuitable for mining 
pursuant to a petition, including the authority to make substantial 
legal and financial commitment determinations pursuant to section 
522(a)(6) of SMCRA, is reserved to the Secretary.
    2. When either LRD or OSMRE receives a petition to designate land 
areas unsuitable for all or certain types of surface coal mining 
operations that could impact adjacent Federal or non-Federal lands 
pursuant to section 522(c) of SMCRA, the agency receiving the petition 
will notify the other of its receipt and the anticipated schedule for 
reaching a decision, and request and fully consider data, information 
and recommendations of the other. OSMRE will coordinate with the Federal 
land management agency with jurisdiction over the petition area, and 
will solicit comments from the agency.

        B. Valid Existing Rights and Compatibility Determinations

    The following actions will be taken when requests for determinations 
of VER pursuant to section 522(e) of SMCRA or for determinations of 
compatibility pursuant to section 522(e)(2) of SMCRA, and received prior 
to or at the time of submission of a PAP that involves surface coal 
mining and reclamation operations and activities:
    1. For Federal lands within the boundaries of any areas specified 
under section 522(e)(1) of SMCRA, OSMRE will determine whether VER 
exists for such areas.
    For private inholdings within section 522(e)(1) areas, LRD, with the 
consultation and concurrence of OSMRE, will determine whether surface 
coal mining operations on such lands will or will not affect the Federal 
interest (Federal lands as defined in section 701(4) of SMCRA). OSMRE 
will process VER determination requests on private inholdings within the 
boundaries of section 522(e)(1) areas where surface coal mining 
operations affects the Federal interest.
    2. For Federal lands within the boundaries of any national forest 
where proposed operations are prohibited or limited by section 522(e)(2) 
of SMCRA and 30 CFR 761.11(b), OSMRE will make the VER determinations.
    OSMRE will process requests for determinations of compatibility 
under section 522(e)(2) of SMCRA.
    3. For Federal lands, LRD will determine whether any proposed 
operation will adversely affect any publicly owned park and, in 
consultation with the State Historic Preservation Officer, places listed 
in the National Register of Historic Places, with respect to the 
prohibitions or limitations of section 522(e)(3) of SMCRA. LRD will make 
the VER determination for such lands using the State Program. LRD will 
coordinate with any affected agency or agency with jurisdiction over the 
proposed surface coal mining and reclamation operations.
    In the case that VER is determined not to exist under section 
522(e)(3) of SMCRA or 30 CFR 761.11(c), no surface coal mining 
operations will be permitted unless jointly approved by LRD and the 
Federal, State or local agency with jurisdiction over the publicly owned 
park or historic place.
    4. LRD will process and make determinations of VER on Federal lands, 
using the State Program, for all areas limited or prohibited by section 
522(e)(4) and (5) of SMCRA as unsuitable for mining. For operations on 
Federal lands, LRD will coordinate with any affected agency or agency 
with jurisdiction

[[Page 525]]

over the proposed surface coal mining and reclamation operation.

            Article XI: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

           Article XII: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or in part it may be 
reinstated under the provisions of 30 CFR 745.16.

            Article XIII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIV: Changes in States or Federal Standards

    A. The Secretary or the Governor may from time to time promulgate 
new or revised performance or reclamation requirements or enforcement 
and administration procedures. Each party will, if it determines it to 
be necessary to keep this Agreement in force, change or revise its 
regulations or request necessary legislative action. Such changes will 
be made under the procedures of 30 CFR part 732 for changes to the 
Program and under the procedures of section 501 of SMCRA for changes to 
the Federal lands program.
    B. LRD and the Secretary will provide each other with copies of any 
changes to their respective laws, rules, regulations or standards 
pertaining to the enforcement and administration of this Agreement.

            Article XV: Changes in Personnel and Organization

    Each party to this Agreement will notify the other, when necessary, 
of any changes in personnel, organization and funding, or other changes 
that may affect the implementation of this Agreement to ensure 
coordination of responsibilities and facilitiate cooperation.

                   Article XVI: Reservation of Rights

    This Agreement will not be construed as waiving or preventing the 
assertion of any rights in this Agreement that the State or the 
Secretary may have under laws other than SMCRA or their regulations, 
including but not limited to those listed in appendix A.

Dated: September 17, 1987.

                                                      James R. Thompson,
                                                   Governor of Illinois.
Dated: October 22, 1987.

                                                      Donald Paul Hodel,
                                              Secretary of the Interior.

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations, including 43 CFR part 3480.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations, including 40 CFR part 1500.
    4. The Endangered Species Act, as amended, 16 U.S.C. 1531 et seq., 
and implementing regulations, including 50 CFR part 402.
    5. The Fish and Wildlife Coordination Act, as amended, 16 U.S.C. 661 
et seq.; 48 Stat. 401.
    6. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR part 800.
    7. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    8. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    9. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    10. The Reservoir Salvage Act of 1960, amended by the Preservation 
of Historical and Archaeological Data Act of 1974, 16 U.S.C. et seq.
    11. Executive Order 11593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    12. Executive Order 11988 (May 24, 1977), for flood plain 
protection.
    13. Executive Order 11990 (May 24, 1977), for wetlands protection.
    14. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
    15. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
    16. The Constitution of the United States.
    17. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 
1201 et seq.
    18. 30 CFR Chapter VII.
    19. The Constitution of the State of Illinois.
    20. Illinois Surface Coal Mining Land Conservation and Reclamation 
Act [Ill. Rev. State. 1979, Ch. 96 1/2/par. 7901 et seq.]
    21. Illinois Department of Mines and Minerals, Coal Mining and 
Reclamation Permanent Program, Rules and Regulations, 62 Ill. Adm. Code 
1700-1850.

[52 FR 45329, Nov. 27, 1987]



PART 914_INDIANA--Table of Contents



Sec.
914.1 Scope.
914.10 State regulatory program approval.

[[Page 526]]

914.15 Approval of Indiana regulatory program amendments.
914.16 Required program amendments.
914.17 State regulatory program and proposed program amendment 
          provisions not approved.
914.20 Approval of Indiana abandoned mine land reclamation plan.
914.25 Approval of Indiana abandoned mine land reclamation plan 
          amendments.
914.30 State-Federal Cooperative Agreement.

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



Sec. 914.1  Scope.

    This part contains all rules applicable only within Indiana that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[47 FR 32107, July 26, 1982]



Sec. 914.10  State regulatory program approval.

    The Secretary conditionally approved the Indiana regulatory program, 
as submitted on March 3, 1980, amended and clarified on June 4, 1980, 
resubmitted on September 28, 1981, and clarified on December 8, 1981, 
April 8, 1982, May 18-19, 1982 and May 26, 1982, effective July 29, 
1982. He fully approved the Indiana program, as amended on April 19 and 
28, 1983, effective August 19, 1983. Copies of the approved program are 
available at:
    (a) Indiana Department of Natural Resources, Division of 
Reclamation, R.R. 2, Box 129, Jasonville, IN 47438-9517.
    (b) Office of Surface Mining Reclamation and Enforcement, 
Indianapolis Field Office, Minton-Capehart Federal Building, Room 301, 
575 North Pennsylvania Street, Indianapolis, IN 46204-1521.

[64 FR 20166, Apr. 26, 1999, as amended at 69 FR 55352, Sept. 14, 2004]



Sec. 914.15  Approval of Indiana regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
September 1, 1982....................  December 17, 1982......  Revision to permit application forms to require
                                                                 applicant to certify that all reclamation fees
                                                                 had been paid.
December 9, 1982.....................  March 4, 1983..........  310 IAC 12-2-7, -9; 12-3-1, -12(c)(2), -
                                                                 21(b)(4), -25, -37(a), -47(b), -48, -59(b)(4),
                                                                 74(a), -81, -97, -102(c); 12-4-5, -10(e)(1), -
                                                                 16; 12-5-3, -18, -24(f), -51, -84, -90(f), -
                                                                 115, -123(b), -149, -152; 12-6-6(d), (f), -6.5,
                                                                 -16(b)(3)(ii); 12-7-4(f).
April 19 and 28, 1983................  August 19, 1983........  IC 13-4.1-2-3, 13-4.1-4-5(c), 13-4.1-7-5, 13-4.1-
                                                                 11-11(i), 13-4.1-14-2(a); 310 IAC 12-1-3; 12-3-
                                                                 12, -39, -63, -76, -112, -118; 12-4-3, -4, -7,
                                                                 17; 12-5-19, -36, -41, -71.5, -85, -101, -105,
                                                                 139.5; 12-6-1, -4, -5, -6.5, -9, -15, -16.
March 5, 1984........................  July 10, 1984..........  IC 13-4.1-2-4, 13-4.1-3-3, 13-4.1-4-3, 13-4.1-5-
                                                                 7.
March 19, 1984.......................  October 19, 1984.......  310 IAC 12-2-8; 12-3-43, -118; 12-5-6, -34, -35,
                                                                 -36, -38, -40; 12-5-73, -100, -100.5, -101, -
                                                                 103.
February 7, 1985.....................  May 13, 1985...........  IC 13-4-6-1.5, -1.6; 13-4.1-1-7; 13-4.1-3-1, -
                                                                 3.5; 13-4.1-5-8; 13-4.1-6-9; 13-4.1-8-1; 13-4.1-
                                                                 10-1; 13-4.1-12-1, -2.
December 7, 1984.....................  May 15, 1985...........  310 IAC 12-2-11; 12-3-46, -80, -96, -97, -98; 12-
                                                                 5-3, -6, -11, -12, -12.1, -13, -14, -15, -18, -
                                                                 19, -20, -21, -23, -24, -44, -54, -54.1, -55, -
                                                                 55.1, -56, -56.1, -57, -57.1, -69, -73, -77, -
                                                                 78, -78.1, -79, -80, -81, -84, -85, -86, -87, -
                                                                 89, -90, -108, -118, -119, -119.1, -120, -121,
                                                                 121.1, -137, -147, -150, -150.1, -151, -152, -
                                                                 153, -154; 12-6-2, -9.1.
May 29, 1984.........................  May 16, 1985...........  310 IAC 0.5; Policy statement dated October 16,
                                                                 1984.
February 18, 1985....................  June 5, 1985...........  310 IAC 12-3-26, -64, -106, -107, -108.
December 10 and 16, 1985.............  March 14, 1986.........  310 IAC 0.5-1-1 through -5, -8 through -13, -15
                                                                 through -19; 12-5-148; advisory letter from
                                                                 Indiana State Office of the Attorney General
                                                                 dated April 23, 1985.
September 4, 1985....................  March 17, 1986.........  310 IAC 12-1-3; 12-5-33, -99; 12-8-1 through 12-
                                                                 8-9; blaster training program.
January 31, 1986.....................  May 13, 1986...........  310 IAC 12-3-121; 12-5-34, -36, -100, -101; 12-6-
                                                                 11, -12, -12.5.
May 29, 1986.........................  August 14, 1986........  310 IAC 12-3-8.
September 24, 1986...................  January 21, 1987.......  310 IAC 12-5-56.1, -121.1.
June 11, 1986, November 7, 1986......  April 1, 1987..........  IC 4-21.5; 4-22-1; 13-4-6-9; 13-4.1-1-3, -5; 13-
                                                                 4.1-3-3, -4, -6; 13-4.1-4-1, -3, -7; 13-4.1-7-
                                                                 1, -5, -6; 13-4.1-8-1; 13-4.1-11-5, -6, -8, -
                                                                 12; 13-4.1-14-1; 310 IAC 12-8-4, -8.

[[Page 527]]

 
June 11, 1986, May 4, 1987...........  February 16, 1988......  IC 13-4.1-1-8, 13-4.1-3.2, 13-4.1-6-8, 13-4.1-12-
                                                                 6.
April 10, 1987.......................  March 22, 1988.........  310 IAC 12-5-12.1(a)(3)(i), -78.1(a)(3)(i).
August 13, 1987......................  November 10, 1988......  IC 13-4.1-6-4; 13-4.1-11-3, -4.
August 13, 1987, June 12, 1989.......  October 11, 1989.......  310 IAC 12-1-3; 12-2-7; 12-3-104, -104.1; 12-5-
                                                                 155, -156.
September 28, 1988...................  November 1, 1989.......  310 IAC 12-5-18, -19, -84, -85.
March 18, 1988.......................  December 15, 1989......  IC 13-4.1-11-10, 35-44-1-3.
November 8, 1989.....................  April 5, 1990..........  IC 13-4.1-10-3.
March 18, 1988.......................  April 23, 1990.........  IC 13-4.1-6-5, 13-4.1.6.3-1 through -13.
December 5, 1989, May 16, 1990.......  August 10, 1990........  310 IAC 12-3-111; 12-5-148; 12-6-8, -9, -16; 12-
                                                                 8-9.
December 4, 1989, August 9, 1990.....  September 24, 1990.....  IC 13-4.1-2-2, 13-4.1-11-5.
August 15, 1989, December 5, 1989....  January 18, 1991.......  310 IAC 0.6-1, 12-6-6.5.
October 24, 1990.....................  March 15, 1991.........  Intervention in hearings by those who may be
                                                                 adversely affected by the outcome of the
                                                                 proceedings.
December 11, 1990....................  March 21, 1991.........  310 IAC 12-0.5, 12-0.5-25(c), 12-1-3.
September 29, 1988, February 15, 1991  August 2, 1991.........  310 IAC 12-5-29, -94; IC 4-26-3-27.8; 13-4.1-2,
                                                                 4, -5; 14-3; Non-code provision at Sec.  46 of
                                                                 Senate Enrolled Act 362 concerning the Bureau
                                                                 of Mine Reclamation.
June 4, 1991.........................  November 27, 1991,       IC 13-4.1-3-2; 13-4.1-6-9; 13-4.1-6.3-11(2), -
                                        December 13, 1991.       13; 13-4.1-10-1; 13-4.1-11-6.
July 11, 1991........................  December 13, 1991......  310 IAC 0.7-3-5.
March 18, 1988.......................  April 20, 1992.........  IC 13-4.1-6-8, 13-4.1-6.5.
May 22 and 23, 1991..................  May 29, 1992...........  310 IAC 12-5-64, -64.1 through .3, -65, -128, -
                                                                 128.1 through .3, -129.
June 4, 1991.........................  June 23, 1992..........  IC 13-4.1.
May 23, 1991.........................  September 14, 1992.....  310 IAC 12-5-145 through -148, -148.5.
May 7, 1992..........................  December 17, 1992......  310 IAC 12-3-8, -9; 12-8-4, -8; 12-9-1 through -
                                                                 4.
March 18, 1988, February 15, 1991,     December 30, 1992......  IC 13-4.1-1-3; 13-4.1-2-4; 13-4.1-3-3, -3.1; 13-
 July 10, 1991.                                                  4.1-4-2, -3.1, -5; 13-4.1-14-1; SEA 121, Sec.
                                                                 8; 310 IAC 12-0-5-48; 12-0.5-59; 12-2-1, -2; 12-
                                                                 3-13, -29, -38, -52, -67, -75, -84, -112, -121.
July 16, 1992........................  January 14, 1993.......  IC 13-4.1-1-1, 13-4.1-3-2(c), -3(c), -3.5(a)(1),
                                                                 (5).
December 2, 1992.....................  May 17, 1993...........  310 IAC 12-3-87.1; 12-5-130.1, -131.1.
November 13, 1992....................  June 24, 1993..........  310 IAC 12-0.5; 12-3-19, .1, -20, -111, -112, -
                                                                 119.5, .6; 12-6-5.
January 4, 1993......................  August 2, 1993.........  310 IAC 12-5-64.1 through .3, -128.1, .3; -145;
                                                                 148.5.
March 26, 1992.......................  August 16, 1993........  310 IAC 12-0.5-6, -32.5, -90.5, -91.5; 12-2-6, -
                                                                 7; 12-3-6, -30.5, -33, -46.5, -47, -57, -68.5,
                                                                 71, -78, -80.5, -81, -94, .1, -98, -106, -110,
                                                                 116, -127, -128, -131; 12-4-3, -16; 12-5-16, -
                                                                 24, -27, -30, -32, -39, -42, -43, .1, -48, -51,
                                                                 .1, -57.5, -82, -92, -95, -97, -99, -100, -104,
                                                                 -106, -107, .1, -115, -119.1, -121.5, -131, -
                                                                 144.
August 8, 1992.......................  September 3, 1993......  310 IAC 12-0.5-5.5, -32.6, .7, .8, -72.5, -78.5;
                                                                 12-1-5 through -12.
April 19, 1993.......................  September 21, 1993.....  IC 13-4.1-1-5, 13-4.1-6.5-8(d).
February 24, 1993....................  November 18, 1993......  310 IAC 0.6-1-5, -13; 0.7-3-5; 12-6-6.5.
July 2, 1993.........................  June 16, 1994..........  310 IAC 12-0.5-6, -23, -53, -55, -64, -72, -104,
                                                                 -111, -116, -139.
April 2, 1993........................  July 15, 1994..........  310 IAC 0.6-1-2, .5, -9, -17.
October 1, 1993......................  July 27, 1994..........  310 IAC 13-4.1-4-3(a)(10).
June 15, 1994........................  October 20, 1994.......  310 IAC 0.6-1-5, -13; 0.7-3-5.
August 11, 1994......................  December 13, 1994......  310 IAC 12-4-16(c)(3).
September 26, 1994...................  February 2, 1995.......  Amendment 94-4 to the Indiana program
                                                                 to correct typographical, clerical, spelling
                                                                 errors.
December 7, 1994.....................  March 10, 1995.........  310 IAC 12-8-4.1, -8.1.
March 21, 1994.......................  April 4, 1995..........  IC 13-4.1-6-9; 13-4.1-9-2.5; 13-4.1-2-4; 13-4.1-
                                                                 4-3, -5; 13-4.1-6-7; 13-4.1-11-6, -8, -12; 13-
                                                                 4.1-12-1; 13-4.1-13-1; 13-4.1-15-9.
January 31, 1995.....................  April 7, 1995..........  310 IAC 12-5-54.1.
March 18, 1994, August 25, 1994......  April 20, 1995.........  310 IAC 12-3-87, .1(c)(2), (7); 12-5-130,
                                                                 .1(c)(2), (g), (h), -131; Amendment 94-
                                                                 2 to the Indiana program.
May 3, 1995..........................  September 14, 1995.....  310 IAC 12-5-64.1(c), -128.1(c); correction of
                                                                 typographical, clerical, spelling errors.
May 11, 1995.........................  October 16, 1995.......  310 IAC 12-0.5-2, -15, -57, -95, -99.
December 30, 1993....................  November 9, 1995.......  310 IAC 12-0.5-109.5, -110.5, -122.5; 12-1-5; 12-
                                                                 3-31, -48, -69, -78, -82, -97, -106; 12-4-5, -
                                                                 7; 12-5-3, -4; 12-6-20 through -24; 12-7-4, -5,
                                                                 -6; Amendment 93-7, part I.
September 11, 1995...................  April 8 and 10, 1996...  IC 13-4.1; 14-2-285.5; 14-8, -2-144.5; 14-34, -2-
                                                                 4, -4-8.5, -10.5, -10-2(b)(23), -13-1, -2, -19-
                                                                 2.
March 18, 1984.......................  May 28, 1996...........  310 IAC 12-3-87.1(c)(2); 12-5-130.1(c)(2), -132.
September 26, 1994...................  October 29, 1996.......  310 IAC 12-0.5-78.7, -91.5, -109; 12-3-30, -32,
                                                                 33, -34, -41, -47, -49, -55, -55.1, -68, -70, -
                                                                 71, -81, -83, -90.5, -91; 12-5-17, -20, -
                                                                 21(a)(3), -24(a)(9)(B), -27, -31, -39, -41, -
                                                                 42, -44, -48, -50, -69, -70, -83, -86, -
                                                                 87(a)(3), -90(a)(9)(B), -92, -96, -104, -105, -
                                                                 106, 108, -112, -114, -127, -137, -137.5(2), -
                                                                 144; 12-6-19.

[[Page 528]]

 
January 13, 1997.....................  August 25, 1997........  310 IAC 12-3-130 (4), (5), -131, -132, -132.5, -
                                                                 133, -134, -134.1, -134.5, -135.
January 14, 1997.....................  August 25, 1997........  310 IAC 12-0.5-39.5, 72.1, 75.5, 77.5, 107.5; 12-
                                                                 3-81, 87.1; 12-5-94, 130.1.
March 7, 1997........................  September 8, 1997......  310 IAC 12-1-7(a), (15)(A), (17); 12-1-7.1 (a)
                                                                 through (c); 12-1-11(b), (c) (1) through (3),
                                                                 (d) (1) through (3).
September 11, 1995...................  November 4, 1997.......  IC 14-8-2-42.5, -49.5, -49.6, -274.5; 14-34-5-
                                                                 10; 14-34-6-14.3, -14.6; 14-34-7-0.5, -0.6, -
                                                                 0.7, -2.5, -4 (b), (d) through (g), -4.1, -5, -
                                                                 7, -7.1, -8, -9, -10, -11, -12, -13.
March 6, 1998........................  July 24, 1998..........  310 IAC 12-3-46(a), (b)(2) through (b)(5); 12-3-
                                                                 80(a), (b)(2) through (b)(5); 12-3-110 (f),
                                                                 (g); 12-5-32(a), (b); 12-5-97(a), (b).
March 6, 1998........................  September 29, 1998.....  310 IAC 12-0.5-6(a) through (c); 12-3-78(a) and
                                                                 (b); 12-5-98(a), (c) and (d); and 12-5-145.5.
May 15, 1998.........................  March 16, 1999.........  IC14-8-2-117.3, 14-34-4-18, 14-34-5-7(b) through
                                                                 (d), -8, -8.1, -8.2(1) through (3), -8.2(5)(A)
                                                                 through (5)(C), -8.3, -8.4(a) through (c)(1),-
                                                                 8.4(c)(2)(A) through (J) and (L), -8.5,-8.6.
March 8, 1999........................  June 14, 1999..........  310 IAC 12-3-31(a)(3), (c); 12-3-48(a)(3); 12-3-
                                                                 69(a)(3), (c)(3), (d); 12-3-106(a)(8).
May 7, 1999..........................  August 12, 1999........  310 IAC 12-3-109(a) through (d); 12-3-114(b),
                                                                 (e), and (f); 12-3-115(b); 12-4-12(b)(4),
                                                                 (b)(6)(A)(ii), and (c); 12-4-16(a), (c), and
                                                                 (d); 12-6-2(a), (b), (c), and (e).
July 1, 1999.........................  October 26, 1999.......  310 IAC 12-8-4.1; -8.1.
August 2, 1999.......................  November 22, 1999......  310 IAC 12-5-64.1(c) and 128.1(c).
August 31, 1999......................  January 7, 2000........  310 12-5-159; IC 14-34-2-6(b) and (c).
February 25, 2000....................  May 26, 2000...........  IC 14-34-6-15(b) and (c).
February 4, 2000.....................  June 5, 2000...........  310 IAC 0.6-1-1 through 17 [repealed]; 310 IAC
                                                                 0.7-3-5 [repealed]; 312 IAC 3-1-1 through 18.
August 21, 2001......................  November 16, 2001......  Recodification of rules from 310 IAC 12 to 312
                                                                 IAC 25; nonsubstantive revisions to those
                                                                 rules; substantive revisions to 312 IAC 25-1-8,
                                                                 25-4-17, 25-4-18, 25-4-45, 25-4-58, 25-4-59, 25-
                                                                 4-113, and 25-4-118.
September 3, 2003....................  December 31, 2003......  312 IAC 25-1-45.5, 60.5, 109.5; 25-4-43(4),
                                                                 47(b)(9), 85(b)(8), 93(4); 25-6-12.5, 76.5.
June 2, 2004.........................  September 14, 2004.....  IC 14-8-2-117.3; 14-34-6-7, 14-34-6-10(b)(2); 14-
                                                                 34-8-4(g) and (h), 14-34-8-6, 14-34-8-11(a),
                                                                 (b), (e), and (f); 2004-71-32.
June 2, 2004.........................  October 1, 2004........  312 IAC 25-6-31(c); 25-9-5(g); 25-9-8(b)(3) and
                                                                 (c).
May 19, 2004.........................  November 29, 2004......  312 IAC 25-1-8; 25-1-75.5; 25-1-155.5; 25-4-
                                                                 17(a)(1), (d), (e), and (f); 25-4-45(b)(4); 25-
                                                                 4-49(a), (c), (d), (f), and (g); 25-4-87(a),
                                                                 (c), (d), (f), and (g); 25-4-102(d)(1), (e),
                                                                 and (f); 25-4-105.5; 25-4-113(f) and (g); 25-4-
                                                                 114(d); 25-4-115(a)(3) and (13); 25-4-118(4)
                                                                 and (8); 25-5-7(b); 25-5-16(b) and (c); 25-6-
                                                                 17(a)(3), (b)(2), (d)(2), and (d)(3); 25-6-
                                                                 20(a) and (c); 25-6-23(a)(2) and (4)(C); 25-6-
                                                                 25; 25-6-66(2); 25-6-81(a)(3), (d)(2) and (3);
                                                                 25-6-84(a) and (c); 25-6-130(2); 25-7-1(a),
                                                                 (d)(2), (f), and (g); 25-7-20.
October 23, 2006.....................  May 21, 2007...........  312 IAC 25-4-102(a)(1) and (3); (b); (d)(4),
                                                                 (6), and (8); (e)(3); (f)(5); 25-6-143(b)(3)
                                                                 and (8), (c).
                                       October 18, 2007.......  312 IAC 25-1-57; 25-4-87; 25-5-16(a), (b) [new],
                                                                 and (c) [formerly (b)]; 25-6-20; 25-6-66; and
                                                                 25-7-1.
----------------------------------------------------------------------------------------------------------------


[62 FR 9939, Mar. 5, 1997, as amended at 62 FR 44896, 44898 Aug. 25, 
1997; 62 FR 47140, Sept. 8, 1997; 62 FR 59578, Nov. 4, 1997; 63 FR 
39729, July 24, 1998; 63 FR 51829, Sept. 29, 1998; 64 FR 12896, Mar. 16, 
1999; 64 FR 31693, June 14, 1999; 64 FR 43913, Aug. 12, 1999; 64 FR 
57567, Oct. 26, 1999; 64 FR 63684, Nov. 22, 1999; 65 FR 1063, Jan. 7, 
2000; 65 FR 34094, May 26, 2000; 65 FR 35575, June 5, 2000; 66 FR 57659, 
Nov. 16, 2001; 68 FR 75422, Dec. 31, 2003; 69 FR 55352, Sept. 14, 2004; 
69 FR 58832, Oct. 1, 2004; 69 FR 69287, Nov. 29, 2004; 72 FR 28454, May 
21, 2007; 72 FR 59009, Oct. 18, 2007]



Sec. 914.16  Required program amendments.

    Pursuant to 30 CFR 732.17, Indiana is required to submit for OSM's 
approval the following proposed program amendments by the dates 
specified.
    (a)-(dd) [Reserved]
    (ee) By July 1, 1994, Indiana shall amend 310 IAC 12-05.-139(b) to 
provide that the interpretation of the terms of the document used to 
establish a valid existing right shall be based either upon applicable 
State statutory or case law concerning interpretation of documents 
conveying mineral rights, or where no applicable State statutory or 
common law exists, the interpretation is based upon the provisions at 
subdivisions 139(b) (1) and (2).

[49 FR 20286, May 14, 1984]

    Editorial Note: For Federal Register citations affecting Sec. 
914.16, see the List of CFR

[[Page 529]]

Sections Affected, which appears in the Finding Aids section of the 
printed volume and at www.fdsys.gov.



Sec. 914.17  State regulatory program and proposed program amendment 

provisions not approved.

    (a) The amendment at Indiana Code 14-34-5-7(a) submitted on May 14, 
1998, concerning permit revisions is hereby disapproved effective March 
16, 1999.
    (b) The amendment at Indiana Code 14-34-5-8.2(4) submitted on May 
14, 1998 concerning postmining land use changes is not approved 
effective August 15, 2001.
    (c) The amendment at Indiana Code 14-34-5-8.4(c)(2)(K) submitted by 
Indiana on May 14, 1998, concerning minor field revisions of temporary 
cessation of mining is hereby disapproved effective March 16, 1999.

[64 FR 12896, Mar. 16, 1999, as amended at 66 FR 42750, Aug. 15, 2001]



Sec. 914.20  Approval of Indiana abandoned mine land reclamation plan.

    The Secretary approved the Indiana abandoned mine land reclamation 
plan, as submitted on December 7, 1981, on July 26, 1982, effective July 
29, 1982. Copies of the approved plan are available at:
    (a) Indiana Department of Natural Resources, Division of 
Reclamation, R.R. 2, Box 129, Jasonville, IN 47438-9517.
    (b) Office of Surface Mining Reclamation and Enforcement, 
Indianapolis Field Office, Minton-Capehart Federal Building, Room 301, 
575 North Pennsylvania Street, Indianapolis, IN 46204-1521.

[64 FR 20166, Apr. 26, 1999]



Sec. 914.25  Approval of Indiana abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
January 22, 1988.....................  November 29, 1988......  Project selection reclamation coordination, land
                                                                 acquisition, rights of entry, lien
                                                                 consideration, public participation,
                                                                 procurement, accounting systems, endangered and
                                                                 threatened species listing, revised
                                                                 administrative and management structure of the
                                                                 plan.
December 6, 1991.....................  May 11 and October 6,    Revisions to the Indiana State Reclamation Plan
                                        1992.                    corresponding to 30 CFR 884.13(c)(1), (2), (3),
                                                                 (5), (7), (d)(1), (e)(1), (2), (f)(1).
November 17, 1992....................  October 26, 1994.......  Emergency response reclamation program.
July 23, 1997........................  March 16, 1998.........  Indiana plan Sec. Sec.  884.13(c)(2) through
                                                                 (7), (d)(1) through (3), (f)(2), (3); emergency
                                                                 response reclamation program.
June 2, 2004.........................  September 14, 2004.....  IC 14-34-19-15.
----------------------------------------------------------------------------------------------------------------


[62 FR 9940, Mar. 5, 1997, as amended at 63 FR 12652, Mar. 16, 1998; 69 
FR 55352, Sept. 14, 2004; 69 FR 69287, Nov. 29, 2004]



Sec. 914.30  State-Federal Cooperative Agreement.

                   State-Federal Cooperative Agreement

    The Governor of the State of Indiana (Governor) and the Secretary of 
the Department of the Interior (Secretary) enter into a Cooperative 
Agreement (Agreement) to read as follows:

       Article I: Introduction, Purposes and Responsible Agencies

                              A. Authority

    This Agreement is authorized by section 523(c) of the Surface Mining 
Control and Reclamation Act (SMCRA), 30 U.S.C. 1273(c), which allows a 
State with a permanent regulatory program approved by the Secretary 
under section 503 of SMCRA, 30 U.S.C. 1253, to elect to enter into an 
Agreement for the State regulation of surface coal mining and 
reclamation operations (including surface operations and surface impacts 
incident to underground mining operations) on Federal lands. This 
Agreement provides for State regulation of coal exploration operations 
not subject to 43 CFR part 3400 and surface coal

[[Page 530]]

mining and reclamation operations in Indiana on Federal lands (30 CFR 
Chapter VII Subchapter D), consistent with SMCRA and State and Federal 
laws governing such activities and the Indiana State Program (Program).

                               B. Purposes

    The purposes of this Agreement are to (a) foster Federal-State 
cooperation in the regulation of surface coal mining and reclamation 
operations and coal exploration operations not subject to 43 CFR part 
3400; (b) minimize intergovernmental overlap and duplication; and (c) 
provide uniform and effective application of the Program on all lands in 
Indiana in accordance with SMCRA, the Program, and this Agreement.

                 C. Responsible Administrative Agencies

    The Natural Resource Commission (NRC) and the Division of 
Reclamation (DOR) of the Indiana Department of Natural Resources will be 
responsible for administering this Agreement on behalf of the Governor 
under the approved Indiana Regulatory Program. The Office of Surface and 
Mining Reclamation and Enforcement (OSM) will administer this Agreement 
on behalf of the Secretary.

                       Article II: Effective Date

    After being signed by the Secretary and the Governor, this Agreement 
will take effect 30 days after publication in the Federal Register as a 
final rule. This Agreement will remain in effect until terminated as 
provided in Article XI.

                        Article III: Definitions

    The terms and phrases used in this Agreement which are defined in 
SMCRA, 30 CFR Parts 700, 701 and 740, the Program, including the OSM 
approved State Act (I.C. 14-34), and the rules and regulations 
promulgated pursuant to those Acts, will be given the meanings set forth 
in said definitions. Where there is a conflict between the above 
referenced State and Federal definitions, the definitions used in the 
Program will apply.

                        Article IV: Applicability

    In accordance with the Federal lands program, the laws, regulations, 
terms and conditions of the Program are applicable to Federal lands in 
Indiana except as otherwise stated in this Agreement, SMCRA, 30 CFR 
740.4, 740.11(a) and 745.13, and other applicable laws, Executive 
Orders, or regulations.

                     Article V: General Requirements

    The Governor and the Secretary affirm that they will comply with all 
the provisions of this Agreement.
    A. Authority of State Agency: DOR and NRC have and will continue to 
have the authority under State law to carry out this Agreement.
    B. Funds: 1. Upon application by DOR and subject to appropriations, 
OSM will provide the State with the funds to defray the costs associated 
with carrying out its responsibilities under this Agreement as provided 
in section 705(c) of SMCRA, the grant agreement, and 30 CFR 735.16. Such 
funds will cover the full cost incurred by DOR and NRC in carrying out 
these responsibilities, provided that such cost does not exceed the 
estimated cost the Federal government would have expended on such 
responsibilities in the absence of this Agreement.
    2. OSM's Indianapolis Field Office and OSM's Mid-Continent Region 
Coordinating Center office will work with DOR to estimate the amount the 
Federal government would have expended for regulation of Federal lands 
in Indiana in the absence of this Agreement.
    3. OSM and the State will discuss the OSM Federal lands cost 
estimate. After resolution of any issues, DOR will include the Federal 
lands cost estimate in the State's annual regulatory grant application 
submitted to OSM's Indianapolis Field Office.
    The State may use the existing year's budget totals, adjusted for 
inflation and workload considerations in estimated regulatory costs for 
the following grant year. OSM will notify DOR as soon as possible if 
such projections are not acceptable.
    4. If DOR applies for a grant but sufficient funds have not been 
appropriated to OSM, OSM and DOR will promptly meet to decide on 
appropriate measures that will insure that surface coal mining and 
reclamation operations on Federal lands in Indiana are regulated in 
accordance with the Program. If agreement cannot be reached, either 
party may terminate the Agreement in accordance with Article XI of this 
Agreement.
    5. Funds provided to the DOR under this Agreement will be adjusted 
in accordance with Office of Management and Budget Common Rule for 
Uniform Administration Requirements for Grants and Cooperative 
Agreements to State and Local Governments.
    C. Reports and Records: DOR will make annual reports to OSM 
containing information with respect to compliance with the terms of this 
Agreement pursuant to 30 CFR 745.12(d). Upon request, DOR and OSM will 
exchange information developed under this Agreement, except where 
prohibited by Federal or State law.
    OSM will provide DOR with a copy of any final evaluation report 
prepared concerning State administration and enforcement of this 
Agreement. DOR comments on the report will be appended before 
transmission to the Congress, unless necessary to respond to

[[Page 531]]

a request by a date certain, or to other interested parties.
    D. Personnel: Subject to adequate appropriations and grant awards, 
the DOR will maintain the necessary personnel to fully implement this 
Agreement in accordance with the provisions of SMCRA, the Federal lands 
program, and the Program.
    E. Equipment and Laboratories: Subject to adequate appropriations 
and grant awards, the DOR will assure itself access to equipment, 
laboratories, and facilities with which all inspections, investigations, 
studies, tests, and analyses can be performed which are necessary to 
carry out the requirements of the Agreement.
    F. Permit Application Fees and Civil Penalties: The amount of the 
fee accompanying an application for a permit for surface coal mining and 
reclamation operations on Federal lands in Indiana will be determined in 
accordance with the approved Indiana Program. All permit fees, civil 
penalties and fines collected from operations on Federal lands will be 
retained by the State and will be deposited within the Natural Resources 
Reclamation Division Fund. Permit fees will be considered program 
income. Civil penalties and fines will not be considered program income. 
The financial status report submitted pursuant to 30 CFR 735.26 will 
include a report of the amount of fees, penalties, and fines collected 
on such permits during the State's prior fiscal year.

            Article VI: Review of Permit Application Package

              A. Submission of Permit Application Package:

    1. DOR and the Secretary require an applicant proposing to conduct 
surface coal mining and reclamation operations on Federal lands covered 
by this Agreement to submit a permit application package (PAP) in an 
appropriate number of copies to DOR. DOR will furnish OSM and other 
Federal agencies with an appropriate number of copies of the PAP. The 
PAP will be in the form required by DOR and will include any 
supplemental information required by OSM, the Federal land management 
agency, and other agencies with jurisdiction or responsibility over 
Federal lands affected by the operations proposed in the PAP.
    At a minimum, the PAP will satisfy the requirements of 30 CFR 
740.13(b) and include the information necessary for DOR to make a 
determination of compliance with the Program and for OSM and the 
appropriate Federal agencies to make determinations of compliance with 
applicable requirements of SMCRA, the Federal lands program, and other 
Federal laws, Executive Orders, and regulations for which they are 
responsible.
    2. For any outstanding or pending permit applications on Federal 
lands being processed by OSM prior to the effective date of this 
Agreement, OSM will maintain sole permit decision responsibility. After 
the final decision, all additional responsibilities shall pass to DOR 
pursuant to the terms of this Agreement along with any attendant fees, 
fines, or civil penalties therefrom.

  B. Review Procedures Where There is No Leased Federal Coal Involved:

    1. DOR will assume the responsibilities for review of PAPs where 
there is no leased Federal coal to the extent authorized in 30 CFR 
740.4(c)(1), (2), (4), (6) and (7). In addition to consultation with the 
Federal land management agency pursuant to 30 CFR 740.4(c)(2), DOR will 
be responsible for obtaining, except for non-significant revisions, the 
comments and determinations of other Federal agencies with jurisdiction 
or responsibility over Federal lands affected by the operations proposed 
in the PAP. DOR will request such Federal agencies to furnish their 
findings or any requests for additional information to DOR within 45 
calendar days of the date of receipt of the PAP. OSM will assist DOR in 
obtaining this information, upon request. Responsibilities and decisions 
which can be delegated to DOR under other applicable Federal laws may be 
specified in working agreements between OSM and the State, with the 
concurrence of any Federal agency involved, and without amendment to 
this Agreement.
    2. DOR will assume responsibility for the analysis, review and 
approval, disapproval, or conditional approval of the permit application 
component of the PAP required by 30 CFR 740.13 for surface coal mining 
and reclamation operations in Indiana on Federal lands not requiring a 
mining plan pursuant to the Mineral Leasing Act (MLA). DOR will review 
the PAP for compliance with the Program and the OSM approved State Act 
and regulations. DOR will be the primary point of contact for applicants 
regarding decisions on the PAP and will be responsible for informing the 
applicant of determinations.
    3. The Secretary will make his determinations under SMCRA that 
cannot be delegated to the State. Some of which have been delegated to 
OSM.
    4. OSM and DOR will coordinate with each other during the review 
process as needed. OSM will provide technical assistance to DOR when 
requested, if available resources allow. DOR will keep OSM informed of 
findings made during the review process which bear on the 
responsibilities of OSM or other Federal agencies. OSM may provide 
assistance to DOR in resolving conflicts with Federal land management 
agencies. OSM will be responsible for ensuring that any information OSM 
receives from an applicant is promptly sent to DOR. OSM will have access 
to DOR files concerning operations on Federal lands. OSM will send to 
DOR copies of all resulting correspondence between OSM

[[Page 532]]

and the applicant that may have a bearing on decisions regarding the 
PAP. The Secretary reserves the right to act independently of DOR to 
carry out his responsibilities under laws other than SMCRA.
    5. DOR will make a decision on approval, disapproval or conditional 
approval of the permit on Federal lands.
    (a) Any permit issued by DOR will incorporate any lawful terms or 
conditions imposed by the Federal land management agency, including 
conditions relating to post-mining land use, and will be conducted in 
compliance with the requirements of the Federal land management agency.
    (b) The permit will include lawful terms and conditions required by 
other applicable Federal laws and regulations.
    (c) After making its decision on the PAP, DOR will send a notice to 
the applicant, OSM, the Federal land management agency, and any agency 
with jurisdiction or responsibility over Federal lands affected by the 
operations proposed in the PAP. A copy of the permit and written 
findings will be submitted to OSM upon request.

       C. Review Procedures Where Leased Federal Coal Is involved:

    1. DOR will assume the responsibilities listed in 30 CFR 
740.4(c)(1), (2), (3), (4), (6) and (7), to the extent authorized.
    In accordance with 30 CFR 740.4(c)(1), DOR will assume 
responsibility for the analysis, review and approval, disapproval, or 
conditional approval of the permit application component of the PAP for 
surface coal mining and reclamation operations in Indiana where a mining 
plan is required, including applications for revisions, renewals and 
transfer sale and assignment of such permits. OSM will, at the request 
of the State, assist to the extent possible in this analysis and review.
    DOR will be the primary point of contact for applicants regarding 
the review of the PAP for compliance with the Program and State law and 
regulations.
    DOR will be responsible for informing the applicant of all joint 
State-Federal determinations.
    DOR will to the extent authorized, consult with the Federal land 
management agency and the Bureau of Land Management (BLM) pursuant to 30 
CFR 740.4(c)(2) and (3), respectively. On matters concerned exclusively 
with regulations under 43 CFR part 3480, Subparts 3480 through 3487, BLM 
will be the primary contact with the applicant. BLM will inform DOR of 
its actions and provide DOR with a copy of documentation on all 
decisions.
    DOR will send the OSM copies of any correspondence with the 
applicant and any information received from the applicant regarding the 
PAP. OSM will send to DOR copies of all correspondence with the 
applicant which may have a bearing on the PAP. As a matter of practice, 
OSM will not independently initiate contacts with applicants regarding 
completeness or deficiencies of the PAP with respect to matters covered 
by the Program.
    DOR will also be responsible for obtaining the comments and 
determinations of other Federal agencies with jurisdiction or 
responsibility over Federal lands affected by the operations proposed in 
the PAP. DOR will request all Federal agencies to furnish their findings 
or any requests for additional information to DOR within 45 days of the 
date of receipt of the PAP. OSM will assist DOR in obtaining this 
information, upon request of DOR.
    DOR will be responsible for approval and release of performance 
bonds under 30 CFR 740.4(c)(4) in accordance with Article IX of this 
Agreement, and for review and approval under 30 CFR 740.4(c)(6) of 
exploration operations not subject to 43 CFR part 3480, Subparts 3480-
3487.
    DOR will prepare documentation to comply with the requirements of 
NEPA under 30 CFR 740.4(c)(7); however, OSM will retain the 
responsibility for the exceptions in 30 CFR 740.4(c)(7)(i)-(vii).
    2. The Secretary will concurrently carry out his responsibilities 
under 30 CFR 740.4(a) that cannot be delegated to DOR under the Federal 
lands program, MLA, the National Environmental Policy Act (NEPA), this 
Agreement, and other applicable Federal laws. The Secretary will carry 
out these responsibilities in a timely manner and will avoid to the 
extent possible, duplication of the responsibilities of the State as set 
forth in this Agreement and the Program. The Secretary will consider the 
information in the PAP and, where appropriate, make decisions required 
by SMCRA, MLA, NEPA, and other Federal laws.
    Responsibilities and decisions which can be delegated to the State 
under other applicable Federal laws may be specified in working 
agreements between OSM and DOR, with concurrence of any Federal agency 
involved, and without amendment to this Agreement.
    Where necessary to make the determination to recommend that the 
Secretary approve the mining plan, OSM will consult with and obtain the 
concurrences of the BLM, the Federal land management agency and other 
Federal agencies as required.
    The Secretary reserves the right to act independently of DOR to 
carry out his responsibilities under laws other than SMCRA or provisions 
of SMCRA not covered by the Program, and in instances of disagreement 
over SMCRA and the Federal lands program.
    3. OSM will assist DOR in carrying out DOR's responsibilities by:
    (a) Coordinating resolution of conflicts and difficulties between 
DOR and other Federal agencies in a timely manner.

[[Page 533]]

    (b) Assisting in scheduling joint meetings, upon request, between 
State and Federal agencies.
    (c) Where OSM is assisting DOR in reviewing the PAP, furnishing to 
DOR the work product within 50 calendar days of receipt of the State's 
request for such assistance, unless a different time is agreed upon by 
OSM and DOR.
    (d) Exercising its responsibilities in a timely manner, governed to 
the extent possible by the deadlines established in the Program.
    4. Review of the PAP:
    (a) OSM and DOR will coordinate with each other during the review 
process as needed. DOR will keep OSM informed of findings and technical 
analyses made during the review process which bear on the 
responsibilities of OSM or other Federal agencies. OSM will ensure that 
any information it receives which has a bearing on decisions regarding 
the PAP is promptly sent to DOR.
    (b) DOR will review the PAP for compliance with the Program and 
State law and regulations.
    (c) OSM will review the operation and reclamation plan portion of 
the permit application, and any other appropriate portions of the PAP 
for compliance with the non-delegable responsibilities of SMCRA and for 
compliance with the requirements of other Federal laws and regulations.
    (d) OSM and DOR will develop a work plan and schedule for PAP review 
and each will identify a person as the project leader. The project 
leaders will serve as the primary points of contact between OSM and DOR 
throughout the review process. Not later than 50 days after receipt of 
the PAP, unless a different time is agreed upon, OSM will furnish DOR 
with its review comments on the PAP and specify any requirements for 
additional data. To the extent practicable, DOR will provide OSM all 
available information that may aid OSM in preparing any findings.
    (e) DOR will prepare a State decision package, including written 
findings and supporting documentation, indicating whether the PAP is in 
compliance with the Program. The review and finalization of the State 
decision package will be conducted in accordance with procedures for 
processing PAPs agreed upon by DOR and OSM.
    (f) DOR may make a decision on approval or disapproval of the permit 
on Federal lands in accordance with the Program prior to the necessary 
Secretarial decision on the mining plan, provided that DOR advises the 
operator in the permit that Secretarial approval of the mining plan must 
be obtained before the operator may conduct coal development or mining 
operations on the Federal lease. DOR will reserve the right to amend or 
rescind any requirements of the permit to conform with any terms or 
conditions imposed by the Secretary in his approval of the mining plan.
    (g) The permit will include, as applicable, terms and conditions 
required by the lease issued pursuant to the MLA and by any other 
applicable Federal laws and regulations, including conditions imposed by 
the Federal land management agency relating to post-mining land use, and 
those of other affected agencies, and will be conditioned on compliance 
with the requirements of the Federal land management agency with 
jurisdiction.
    (h) After making its decision on the PAP, DOR will send a notice to 
the applicant, OSM, the Federal land management agency, and any agency 
with jurisdiction or responsibility over Federal land affected by 
operations proposed in the PAP. A copy of the written findings and the 
permit will also be submitted to OSM.
    5. OSM will provide technical assistance to DOR when requested, if 
available resources allow. OSM will have access to DOR files concerning 
operations on Federal lands.

   D. Review Procedures for Permit Revisions; Renewals; and Transfer 
                  Assignment or Sate of Permit Rights:

    1. Any permit revision or renewal for an operation on Federal lands 
will be reviewed and approved or disapproved by DOR after consultation 
with OSM on whether such revision or renewal constitutes a mining plan 
modification pursuant to 30 CFR 746.18. OSM will inform DOR within 30 
days of receiving a copy of a proposed revision or renewal, whether the 
permit revision, or renewal constitutes a mining plan modification. 
Where approval of a mining plan modification is required, OSM and DOR 
will follow the procedures outlined in paragraphs C.1. through C.5. of 
this Article.
    2. OSM may establish criteria consistent with 30 CFR 746.18 to 
determine which permit revisions and renewals clearly do not constitute 
mining plan modifications.
    3. Permit revisions or renewals on Federal lands which are 
determined by OSM not to constitute mining plan modifications under 
paragraph D.1. of this Article or that meet the criteria for not being 
mining plan modifications as established under paragraph D.2. of this 
Article will be reviewed and approved following the procedures set forth 
under Indiana law and the State Program and paragraphs B.1. through B.5. 
of this Article.
    4. Transfer, assignment or sale of permit rights on Federal lands 
shall be processed in accordance with Indiana law and the State Program 
and 30 CFR 740.13(e).

                        Article VII: Inspections

    A. DOR will conduct inspections on Federal lands in accordance with 
30 CFR

[[Page 534]]

740.4(c)(5) and prepare and file inspection reports in accordance with 
the Program.
    B. DOR will, subsequent to conducting any inspection pursuant to 30 
CFR 740.4(c)(5), and on a timely basis, file with OSM a legible copy of 
the completed State inspection report.
    C. DOR will be the point of contact and primary inspection authority 
in dealing with the operator concerning operations and compliance with 
the requirements covered by the Agreement, except as described 
hereinafter. Nothing in this Agreement will prevent inspections by 
authorized Federal or State agencies for purposes other than those 
covered by this Agreement. The Department of the Interior may conduct 
any inspections necessary to comply with 30 CFR parts 842 and 843 and 
its obligations under laws other than SMCRA.
    D. OSM will give DOR reasonable notice of its intent to conduct an 
inspection under 30 CFR 842.11 in order to provide State inspectors with 
an opportunity to join in the inspection.
    When OSM is responding to a citizen complaint of an imminent danger 
to the public health and safety, or of significant, imminent 
environmental harm to land, air or water resources, pursuant to 30 CFR 
842.11(b)(1)(ii)(C), it will contact DOR no less than 24 hours prior to 
the Federal inspection, if practicable, to facilitate a joint Federal/
State inspection. All citizen complaints which do not involve an 
imminent danger or significant, imminent environmental harm will be 
referred to DOR for action. The Secretary reserves the right to conduct 
inspections without prior notice to DOR to carry out his 
responsibilities under SMCRA.

                        Article VIII: Enforcement

    A. DOR will have primary enforcement authority under SMCRA 
concerning compliance with the requirements of the Agreement and the 
Program in accordance with 30 CFR 740.4(c)(5). Enforcement authority 
given to the Secretary under other Federal laws and Executive orders 
including, but not limited to, those listed in appendix A (attached) is 
reserved to the Secretary.
    B. During any joint inspection by OSM and DOR, DOR will have primary 
responsibility for enforcement procedures, including issuance of orders 
of cessation, notices of violation, and assessment of penalties. DOR 
will inform OSM prior to issuance of any decision to suspend or revoke a 
permit on Federal lands.
    C. During any inspection made solely by OSM or any joint inspection 
where DOR and OSM fail to agree regarding the propriety of any 
particular enforcement action, OSM may take any enforcement action 
necessary to comply with 30 CFR parts 843, 845, and 846. Such 
enforcement action will be based on the standards in the Program, SMCRA, 
or both, and will be taken using the procedures and penalty system 
contained in 30 CFR parts 843, 845, and 846.
    D. DOR and OSM will promptly notify each other of all violations of 
applicable laws, regulations, orders, or approved mining permits subject 
to this Agreement, and of all actions taken with respect to such 
violations
    E. Personnel of DOR and the Department of the Interior, including 
OSM, will be mutually available to serve as witness in enforcement 
actions taken by either party.
    F. This Agreement does not affect or limit the Secretary's authority 
to enforce violations of Federal laws other than SMCRA.

                            Article IX: Bonds

    A. DOR and the Secretary will require each operator who conducts 
operations on Federal lands to submit a performance bond payable to the 
State of Indiana and the United States to cover the operator's 
responsibilities under SMCRA and the Program. Such performance bond will 
be conditioned upon compliance with all requirements of the SMCRA, the 
Program, State rules and regulations, and any other requirements imposed 
by the Secretary or the Federal land management agency. Such bond will 
provide that if this Agreement is terminated, the portion of the bond 
covering the Federal lands will be payable only to the United States. 
DOR will advise OSM of annual adjustments to the performance bond 
pursuant to the Program.
    B. Performance bonds will be subject to release and forfeiture in 
accordance with the procedures and requirements of the Program. Where 
surface coal mining and reclamation operations are subject to an 
approved mining plan, a performance bond shall be released by the State 
after the release is concurred in by OSM.
    C. Submission of a performance bond does not satisfy the 
requirements for a Federal lease bond required by 43 CFR subpart3474 or 
lessee protection bond required in addition to a performance bond, in 
certain circumstances, by section 715 of SMCRA.

Article X: Designating Land Areas Unsuitable for all or Certain Types of 
Surface Coal Mining and Reclamation Operations and Activities and Valid 
         Existing Rights (VER) and Compatibility Determinations

                       A. Unsuitability Petitions

    1. Authority to designate Federal lands as unsuitable for mining 
pursuant to a petition, including the authority to make substantial 
legal and financial commitment determinations pursuant to section 
522(a)(6) of SMCRA, is reserved to the Secretary.
    2. When either DOR or OSM receives a petition to designate land 
areas unsuitable for all or certain types of surface coal mining

[[Page 535]]

operations that could impact adjacent Federal or non-Federal lands 
pursuant to section 522(c) of SMCRA, the agency receiving the petition 
will notify the other of its receipt and the anticipated schedule for 
reaching a decision, and request and fully consider data, information 
and recommendations of the other. OSM will coordinate with the Federal 
land management agency with jurisdiction over the petition area, and 
will solicit comments from the agency.

        B. Valid Existing Rights and Compatibility Determinations

    The following actions will be taken when requests for determinations 
of VER pursuant to section 522(e) of SMCRA or for determinations of 
compatibility pursuant to section 522(e)(2) of SMCRA, and received prior 
to or at the time of submission of a PAP that involves surface coal 
mining and reclamation operations and activities:
    1. For Federal lands within the boundaries of any areas specified 
under section 522(e)(1) of SMCRA, OSM will determine whether VER exists 
for such areas.
    For private in holdings within section 522(e)(1) areas, DOR, with 
the consultation and concurrence of OSM, will determine whether surface 
coal mining operations on such lands will or will not affect the Federal 
interest (Federal lands as defined in section 701(4) of SMCRA). OSM will 
process VER determination requests on private in holdings within the 
boundaries of section 522(e)(1) areas where surface coal mining 
operations affects the Federal interest.
    2. For Federal lands within the boundaries of any national forest 
where proposed operations are prohibited or limited by section 522(e)(2) 
of SMCRA and 30 CFR 761.11(b), OSM will make the VER determinations. OSM 
will process requests for determinations of compatibility under section 
522(e)(2) of SMCRA.
    3. For Federal lands, DOR will determine whether any proposed 
operation will adversely affect any publicly owned park and, in 
consultation with the State Historic Preservation Officer, places listed 
in the National Register of Historic Sites, with respect to the 
prohibitions or limitations of section 522(e)(3) of SMCRA. DOR will make 
the VER determination for such lands using the State Program. DOR will 
coordinate with any affected agency or agency with jurisdiction over the 
proposed surface coal mining and reclamation operations.
    In the case that VER is determined not to exist under section 
522(e)(3) of SMCRA or 30 CFR 761.11(c), no surface coal mining 
operations will be permitted unless jointly approved by DOR and the 
Federal, State or local agency with jurisdiction over the publicly owned 
park or historic place.
    4. DOR will process and make determinations of VER on Federal lands, 
using the State Program, for all areas limited or prohibited by section 
522(e)(4) and (5) of SMCRA as unsuitable for mining. For operations on 
Federal lands, DOR will coordinate with any affected agency or agency 
with jurisdiction over the proposed surface coal mining and reclamation 
operation.

            Article XI: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

           Article XII: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or in part it may be 
reinstated under the provisions of 30 CFR 745.16.

            Article XIII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIV: Changes in State or Federal Standards

    A. The Secretary or the Governor may from time to time promulgate 
new or revised performance or reclamation requirements or enforcement 
and administration procedures. Each party will, if it determines it to 
be necessary to keep this Agreement in force, change or revise its 
regulations or request necessary legislative action. Such changes will 
be made under the procedures of 30 CFR part 732 for changes to the 
Program and under the procedures of section 501 of SMCRA for changes to 
the Federal lands program.
    B. DOR and the Secretary will provide each other with copies of any 
changes to their respective laws, rules, regulations or standards 
pertaining to the enforcement and administration of this Agreement.

            Article XV: Changes in Personnel and Organization

    Each party to this Agreement will notify the other, when necessary, 
of any changes in personnel, organization and funding, or other changes 
that may affect the implementation of this Agreement to ensure 
coordination of responsibilities and facilitate cooperation.

                   Article XVI: Reservation of Rights

    This Agreement will not be construed as waiving or preventing the 
assertion of any rights that have not been expressly addressed in this 
Agreement that the State or the Secretary may have under laws other than 
SMCRA or their regulations including but not limited to those listed in 
appendix A.

    Dated: October 26, 1999.

[[Page 536]]

Frank O'Bannon,
Governor of Indiana.
Bruce Babbitt,
Secretary of the Interior.

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations, including 43 CFR part 3480.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations, including 40 CFR part 1500.
    4. The Endangered Species Act, as amended, 16 U.S.C. 1531 et seq., 
and implementing regulations, including 50 CFR part 402.
    5. The Fish and Wildlife Coordination Act, as amended, 16 U.S.C. 661 
et seq.; 48 Stat. 401.
    6. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR part 800.
    7. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    8. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    9. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    10. The Reservoir Salvage Act of 1960, amended by the Preservation 
of Historical and Archaeological Data Act of 1974, 16 U.S.C. et seq.
    11. Executive Order 11593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    12. Executive Order 11988 (May 24, 1977), for flood plain 
protection.
    13. Executive Order 11990 (May 24, 1977), for wetlands protection.
    14. The Mineral Leasing Act for Acquired Lands, 30 U.S. 351 et seq., 
and implementing regulations.
    15. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
    16. The Constitution of the United States.
    17. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 
1201 et seq.
    18. 30 CFR Chapter VII.
    19. The Constitution of the State of Indiana.
    20. Indiana Surface Coal Mining and Reclamation Act (P.L. 1-1995, 
SEC. 27) at Ind. Code 14-34 et seq.
    21. Indiana Department of Natural Resources, Coal Mining and 
Reclamation Operations, Rules and Regulations, 310 Ind. Admin. Code 12.

[64 FR 70580, Dec. 17, 1999]



PART 915_IOWA--Table of Contents



Sec.
915.1 Scope.
915.10 State regulatory program approval.
915.15 Approval of Iowa regulatory program amendments.
915.16 Required program amendments. [Reserved]
915.20 Approval of Iowa abandoned mine land reclamation plan.
915.25 Approval of Iowa abandoned mine land reclamation plan amendments.

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



Sec. 915.1  Scope.

    This part contains all rules applicable only within Iowa which have 
been adopted under the Surface Mining Control and Reclamation Act of 
1977.

[46 FR 5891, Jan. 21, 1981]



Sec. 915.10  State regulatory program approval.

    The Secretary approved the Iowa regulatory program, as submitted 
February 28, 1980, and amended and clarified on June 11, 1980, and 
December 15, 1980, effective April 10, 1981. Copies of the approved 
program are available at:
    (a) Iowa Department of Agriculture and Land Stewardship, Division of 
Soil Conservation, Henry A. Wallace Building, E. 9th and Grand Streets, 
Des Moines, IA 50319.
    (b) Office of Surface Mining Reclamation and Enforcement, Mid-
Continent Regional Coordinating Center, Alton Federal Building, 501 
Belle Street, Alton, IL 62002.

[64 FR 20166, Apr. 26, 1999]



Sec. 915.15  Approval of Iowa regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

[[Page 537]]



----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
October 1, 1981......................  May 26, 1982...........  IAC 780-4.6(8), 4.35(13).
June 3, 1982.........................  September 8, 1982......  IC 83-14.2, .7(a).
September 28, 1982...................  January 4, 1983........  IAC 4.311(2); 4.322(13); 4.522(11); 4.523(15),
                                                                 (38), (60); 4.55(1), (5).
May 9, 1984..........................  December 7, 1984.......  IAC 4.523(63), 4.322(14).
January 31, 1985.....................  May 24, 1985...........  IAC 780-4.6(83), .42(1)(83).
July 25 and 26, 1985.................  May 9, 1986............  IAC 780-4.6(1), (4), .35(1), (6), .37(2),
                                                                 .321(8), .361(9); and 780-Chapter 26.
June 16, 1986........................  October 7, 1986........  Iowa Senate File 2175: State Government
                                                                 Reorganization Bill.
August 12, 1986......................  December 11, 1986......  IAC 4.522(15)c, g.
April 28, 1987.......................  October 7, 1987........  I.C. 83.7.
June 9, 1988.........................  December 9, 1988.......  I.C. 83.26.
December 26, 1990....................  November 6, 1991.......  IAC 27-40.1 through .7, .11, .12, .13, .21, .22,
                                                                 .23, .30 through .39, .41, .51, .61 through
                                                                 .68, .71 through .74, .81, .82, .91 through
                                                                 .99.
November 23, 1992....................  February 8, 1994.......  IAC 27-40.1, .3 through .7, .11, .12, .13, .21,
                                                                 .22, .23, .30 through .39, .41, .51, .61
                                                                 through .68, .71, .73, .74, .75, .81, .82, .92.
April 13, 1994.......................  April 6, 1995..........  IAC 27-40.3(207), .4(9), .31(14), .32(207),
                                                                 .51(7), .63(20), .74(3), .75(2).
December 4, 1996.....................  April 7, 1997..........  IAC 40.4(10); .38 (2) and (3); 64 (6) through
                                                                 (9).
September 28, 1998...................  November 26, 1999......  Revegetation Success Guidelines dated April 1999
                                                                 (partial approval).
August 17, 2001......................  December 27, 2001......  Sections III.H, IV.E, and V.A.2(l) of Iowa's
                                                                 April 1999 Revegetation Success Standards and
                                                                 Statistically Valid Sampling Techniques.
June 14, 2002........................  November 6, 2002.......  IAC 27-40.71(207).
February 24, 2004....................  June 1, 2004...........  IAC 27--40.1(1), 40.1(4); 40.3(207); 40.4(207),
                                                                 40.4(2), 40.4(3), 40.4(9), 40.4(11); 40.5(207);
                                                                 40.6(207), 40.6(2); 40.7(207); 40.11(207);
                                                                 40.12(207); 40.13(207); 40.21(207), 40.21(4)
                                                                 through 40.21(6); 40.22(207), 40.22(2);
                                                                 40.23(207); 40.30(207), 40.30(1), 40.30(4);
                                                                 40.31(207), 40.31(1) through 40.31(9),
                                                                 40.31(12) through 40.31(15); 40.32(207),
                                                                 40.32(1), 40.32(2), 40.32(4); 40.33(207);
                                                                 40.34(207), 40.34(2), 40.34(3); 40.35(207),
                                                                 40.35(3); 40.36(207); 40.37(207), 40.37(4);
                                                                 40.38(207), 40.38(2), 40.38(3); 40.39(207);
                                                                 40.41(207); 40.51(207); 40.61(207), 40.61(4);
                                                                 40.62(207); 40.63(207), 40.63(6), 40.63(9);
                                                                 40.64(207), 40.64(4), 40.64(6); 49.65(207);
                                                                 40.66(207); 40.67(207); 40.71(207); 40.73(2)g,
                                                                 40.73(4)d; 40.74(207), 40.74(9); 40.75(207),
                                                                 40.75(2); 40.81(207); 40.82(207); 40.92(8).
December 27, 2004....................  May 3, 2005............  Section III.F and Section IV.A and G of Iowa's
                                                                 April 1999 Revegetation Success Standards and
                                                                 Statistically Valid Sampling Techniques.
August 19, 2005......................  January 31, 2006.......  IAC 27C40.41(3) and 40.41(4).
----------------------------------------------------------------------------------------------------------------


[62 FR 9940, Mar. 5, 1997, as amended at 62 FR 16492, Apr. 7, 1997; 64 
FR 66390, Nov. 26, 1999; 66 FR 66747, Dec. 27, 2001; 67 FR 67524, Nov. 
6, 2002; 69 FR 30825, June 1, 2004; 70 FR 22794, May 3, 2005; 71 FR 
5007, Jan. 31, 2006]



Sec. 915.16  Requried program amendments. [Reserved]



Sec. 915.20  Approval of Iowa abandoned mine land reclamation plan.

    The Secretary approved the Iowa abandoned mine land reclamation 
plan, as submitted on December 17, 1982, effective March 28, 1983. 
Copies of the approved plan are available at:
    (a) Iowa Department of Agriculture and Land Stewardship, Division of 
Soil Conservation, Henry A. Wallace Building, E. 9th and Grand Streets, 
Des Moines, IA 50319.
    (b) Office of Surface Mining Reclamation and Enforcement, Mid-
Continent Regional Coordinating Center, Alton Federal Building, 501 
Belle Street, Alton, IL 62002.

[64 FR 20167, Apr. 26, 1999]



Sec. 915.25  Approval of Iowa abandoned mine land reclamation plan amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all or portions of 
these amendments were published in the Federal Register, and the State 
citations or a brief description of each amendment. The amendments in 
this table are listed in the order of the date of final publication in 
the Federal Register.

[[Page 538]]



------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
June 14, 2002.................  December 5, 2002.  Emergency response
                                                    reclamation program;
                                                    AMLR Plan sections
                                                    I. through IV., V.B.
                                                    and C.; Iowa Code
                                                    (IC) 207.21
                                                    subsection 2.a.(2)
                                                    through 2.b. and
                                                    subsection 3.d.;
                                                    207.23; and 207.29.
------------------------------------------------------------------------


[67 FR 72379, Dec. 5, 2002]



PART 916_KANSAS--Table of Contents



Sec.
916.1 Scope.
916.10 State regulatory program approval.
916.12 State regulatory program and proposed program amendment 
          provisions not approved.
916.15 Approval of Kansas regulatory program amendments.
916.16 Required regulatory program amendments. [Reserved]
916.20 Approval of Kansas abandoned mine land reclamation plan.
916.25 Approval of Kansas abandoned mine land reclamation plan 
          amendments.

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



Sec. 916.1  Scope.

    This part contains all rules applicable only within Kansas which 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[46 FR 5898, Jan. 21, 1981]



Sec. 916.10  State regulatory program approval.

    The Secretary conditionally approved the Kansas regulatory program, 
as submitted on February 26, 1980, and amended on October 31, 1980, 
effective January 21, 1981. He fully approved the Kansas program, as 
amended on May 20, 1981, effective April 14, 1982. Copies of the 
approved program are available at:
    (a) Kansas Department of Health and Environment, Surface Mining 
Section, 4033 Parkview Drive, Frontenac, KS 66763.
    (b) Office of Surface Mining Reclamation and Enforcement, Mid-
Continent Regional Coordinating Center, Alton Federal Building, 501 
Belle Street, Alton, IL 62002.

[64 FR 20167, Apr. 26, 1999]



Sec. 916.12  State regulatory program and proposed program amendment 

provisions not approved.

    (a) The following provisions of the Kansas Administrative 
Regulations (K.A.R.) as submitted on April 23, 1986, and January 26, 
1988, are disapproved: Paragraphs (c) and (d) of K.A.R. 47-9-1 insofar 
as they incorporate by reference 30 CFR 816.133(d) and 817.133(d), which 
establish criteria for variances from approximate original contour 
requirements.
    (b) [Reserved]

[53 FR 39470, Oct. 7, 1988]



Sec. 916.15  Approval of Kansas regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
May 20, 1981.........................  April 14, 1982.........  MLCRA 49-411, 412, 413, 414, 416, 421, 49-422,
                                                                 422a, 430.
November 16, 1982....................  March 1, 1983..........  MLCRA 49-403, 49-405c, 49-406, 49-420; Sec.  10
                                                                 of House Bill 2182; K.A.R. 47-2-21, 47-8-10, 47-
                                                                 8-11.
March 16, 1984.......................  June 8, 1984...........  MLCRA 49-406; K.A.R. 47-1-10.
December 21, 1984....................  April 11, 1985.........  K.A.R. 47-15-13.

[[Page 539]]

 
April 4, 1985........................  November 15, 1985......  K.S.A 1984 Supp. 49-406(g); K.A.R. 47-1-11; 47-2-
                                                                 75; 47-3-42, (a)(23), (45); 47-5; 47-8-9(a),
                                                                 (j); 47-9-1, 2, 3; 47-13-4, 5, 6; 47-15;
                                                                 Memoranda of understanding with Fish and Game
                                                                 Commission, Division of Water Resources,
                                                                 Department of Health and Environment, State
                                                                 Geological Survey, State Historical Society,
                                                                 State Water Office, State Conservation
                                                                 Commission and State Fire Marshal.
April 23, 1986.......................  May 26, 1987...........  K.A.R. 47-1-4; 47-2-7, 17, 44, 53, a, 75; 47-3-
                                                                 2, 3, a, 4, 21, 40, 42; 47-4-14, 15; 47-6-3, 4,
                                                                 5, 6; 47-7-2; 47-8-2, 9, a, 10; 47-9-1, 3, 4;
                                                                 47-10-1; 47-11-8; 47-12-4; 47-15-1a.
August 5, 1987.......................  December 31, 1987......  K.S.A. 49-431; K.A.R. 47-9-1.
April 29, 1988.......................  October 5, 1988........  K.S.A. 49-402, 404, 405, a through d; 407
                                                                 through 410, 413, 415, 416, a, 417, 420, 421a,
                                                                 426 through 429, 432, 433; K.S.A. 1987
                                                                 Supplement 49-403, 406, 422a.
January 26, 1988.....................  October 7, 1988........  K.A.R. 47-2-75; 47-3-42(a); 47-7-2; 47-9-1 (c),
                                                                 (d); 47-10-1; 47-12-4.
June 8, 1990.........................  February 19, 1991......  The revegetation guidance document entitled
                                                                 ``Revegetation Standards for Success and
                                                                 Statistically Valid Sampling Techniques for
                                                                 Measuring Revegetation Success''.
June 29, 1989........................  September 13, 1991.....  K.A.R. 47-1-1, 3, 4, 8, 9, 10, 11; 47-2-14, 21,
                                                                 53, 67, 75; 47-3-1, 2, 3a, 42; 47-4-14a, 15,
                                                                 16, 17; 47-5-5a, 16; 47-6-1 through 4, 6
                                                                 through 10; 47-7-2; 47-8-9, 11; 47-9-1, 2, 4;
                                                                 47-10-1; 47-11-8; 47-12-4; 47-13-4 through 7;
                                                                 47-15-1a, 3, 4, 7, 8, 15, 17.
June 29, 1989........................  April 13, 1992,          ``Guidelines for repair of rills and gullies in
                                        September 9, 1994.       Kansas''.
June 3, 1991.........................  August 19, 1992........  Statistical sample adequacy.
July 10, 1992........................  June 14 and August 30,   K.A.R. 47-1-9; 47-2-14, 53a, 58, 67, 75; 47-3-2,
                                        1993.                    3a, 42; 47-4-14a, 15; 47-5-5a, 16; 47-6-1
                                                                 through 4, 6, through 10; 47-7-2; 47-8-9, 11;
                                                                 47-9-1, 4; 47-10-1; 47-11-8; 47-12-4; 47-13-4,
                                                                 5; 47-14-4, 7; 47-15-1a, 4, 7, 8.
September 14, 1993...................  June 3, 1994...........  K.A.R. 47-2-75(e)(6); 47-4-14a(b), (c)(7), (11),
                                                                 (d), (2)(F), (6)(E)(iii), (iv); 47-5-5a(a)(10),
                                                                 (b), (14), (15), (16), (19), (20), (c)(7)(C);
                                                                 47-6-7(h)(2); 47-9-1(c)(17), (43), (46),
                                                                 (d)(17), (39), (44); 47-15-1a, (b)(6), (9),
                                                                 (21).
August 9, 1995.......................  November 27, 1995......  Alternative sampling method for determining
                                                                 woody stem density.
May 7, 1997..........................  March 3, 1998..........  K.A.R. 47-1-1, 3, 4, 8, 9, 10, 11; 47-2-14, 21,
                                                                 53, 53a, 58, 64, 67, 74, 75; 47-3-1, 2, 3a, 42;
                                                                 47-4-14a, 47-4-15; 47-4-16; 47-4-17; 47-5-5a;
                                                                 47-5-16; 47-6-1, 2, 3, 4, 6, 7, 8, 9, 10; 47-7-
                                                                 2; 47-8-9, 11; 47-9-1, 2, 4; 47-10-1; 47-11-8;
                                                                 47-12-4; 47-13-4, 5, 6; 47-14-7; 47-15-1a; 47-
                                                                 15-3, 4, 7, 8, 15, 17.
October 9, 2001......................  February 26, 2002......  Revegetation Standards for Success and
                                                                 Statistically Valid Sampling Techniques for
                                                                 Measuring Revegetation Success dated January
                                                                 2002.
July 24, 2002........................  March 25, 2003.........  K.A.R. 47-2-75; 47-3-2, 42; 47-4-14a(c)(2);47-5-
                                                                 5a, 17; 47-6-1, 2(d)(2), 3, 4, 6, 8, 9, 10, 11;
                                                                 47-7-2; 47-8-9; 47-9-1, 4; 47-10-1; 47-11-8; 47-
                                                                 12-4; 47-13-4; 47-14-7; 47-15-1a.
November 19, 2007....................  November 28, 2008......  Revegetation Success Guidelines; Normal
                                                                 Husbandry Practices; Kansas Regulations: K.A.R.
                                                                 47-4-14a(c)(2), (d)(2)(A), (d)(3)(A); K.A.R. 47-
                                                                 5-5a(a)(4), (a)(5), (a)(9), and (a)(11) through
                                                                 (a)(13).
----------------------------------------------------------------------------------------------------------------


[62 FR 9941, Mar. 5, 1997, as amended at 63 FR 10317, Mar. 3, 1998; 67 
FR 8716, Feb. 26, 2002; 68 FR 14326, Mar. 25, 2003; 73 FR 72351, Nov. 
28, 2008]



Sec. 916.16  Required regulatory program amendments. [Reserved]



Sec. 916.20  Approval of Kansas abandoned mine land reclamation plan.

    The Secretary conditionally approved the Kansas abandoned mine land 
reclamation plan, as submitted on October 1, 1981, effective February 1, 
1982. He fully approved the Kansas plan, as amended by Kansas House Bill 
No. 2994 on April 14, 1982, and Kansas House Bill No. 2516 on May 2, 
1983, and removed all conditions prohibiting the funding of State 
abandoned mine land construction grants, effective June 3, 1983. Copies 
of the approved plan are available at:
    (a) Kansas Department of Health and Environment, Surface Mining 
Section, 4033 Parkview Drive, Frontenac, KS 66763.
    (b) Office of Surface Mining Reclamation and Enforcement, Mid-
Continent Regional Coordinating Center, Alton Federal Building, 501 
Belle Street, Alton, IL 62002.

[64 FR 20167, Apr. 26, 1999]

[[Page 540]]



Sec. 916.25  Approval of Kansas abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
April 29, 1988.......................  October 5, 1988........  Reorganization of the Regulatory Authority.
                                                                 House Bill 3009 eliminated the Kansas Mined
                                                                 Land Conservation and Reclamation Board and
                                                                 transferred its functions and staff to the
                                                                 Kansas Department of Health and Environment.
September 30, 1988...................  January 10, 1989.......  Approval of emergency reclamation program.
June 29 and July 26, 1989............  November 30, 1989......  KAR 47-16-1, -16-2, -16-4 through -8; policy and
                                                                 procedures for project ranking and selection;
                                                                 organization structure; public participation.
October 25, 1991.....................  April 13, 1992.........  KAR 47-16-5(b), -6.
May 7, 1997..........................  March 3, 1998..........  K.A.R. 47-16-1 through 47-16-11.
March 17, 1998.......................  June 8, 1998...........  Section 884.13(c)(2) and (d)(3).
July 24, 2002........................  March 25, 2003.........  K.A.R. 47-16-9(a), 47-16-10(b), and 47-16-12.
----------------------------------------------------------------------------------------------------------------


[62 FR 9941, Mar. 5, 1997, as amended at 63 FR 10317, Mar. 3, 1998; 63 
FR 31112, June 8, 1998; 68 FR 14326, Mar. 25, 2003]



PART 917_KENTUCKY--Table of Contents



Sec.
917.1 Scope.
917.10 State regulatory program approval.
917.11 Conditions of State regulatory program approval.
917.12 State regulatory program and proposed program amendment 
          provisions not approved.
917.13 State statutory and regulatory provisions set aside.
917.15 Approval of Kentucky regulatory program amendments.
917.16 Required regulatory program amendments.
917.17 State regulatory program amendments not approved.
917.20 Approval of the Kentucky abandoned mine reclamation plan.
917.21 Approval of Kentucky abandoned mine land reclamation plan 
          amendments.
917.30 State-Federal cooperative agreement.

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



Sec. 917.1  Scope.

    This part contains all rules applicable only within Kentucky that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[47 FR 21434, May 18, 1982]



Sec. 917.10  State regulatory program approval.

    The Kentucky State program as resubmitted on December 30, 1981, and 
amended and clarified on February 22, 1982, was conditionally approved, 
effective May 18, 1982. Beginning on that date, the Kentucky Department 
for Natural Resources and Environmental Protection was deemed the 
regulatory authority in Kentucky for surface coal mining and reclamation 
operations and for coal exploration operations on non-Federal and non-
Indian lands. Copies of the approved program are available for review 
at:
    (a) Office of Surface Mining Reclamation and Enforcement, Lexington 
Field Office, 2675 Regency Road, Lexington, Kentucky 40503-2922.
    (b) Department for Surface Mining Reclamation and Enforcement, 
Number 2, Hudson Hollow Complex, Frankfort, Kentucky 40601.

[48 FR 251, Jan. 4, 1983, as amended at 59 FR 17929, Apr. 15, 1994]



Sec. 917.11  Conditions of State regulatory program approval.

    The approval of the Kentucky State program is subject to the state 
revising its program to correct the deficiencies listed in this section. 
The program revisions may be made, as appropriate, to the statute, to 
the regulations, to the program narrative, or by means of a legal 
opinion. This section indicates, for the general guidance of the State, 
the component of the program to which

[[Page 541]]

the Secretary recommends the change be made.
    (a)-(p) [Reserved]

[47 FR 21434, May 18, 1982, as amended at 49 FR 33247, Aug. 22, 1984; 49 
FR 37587, Sept. 25, 1984; 50 FR 8610, Mar. 4 1985; 50 FR 23003, May 30, 
1985]



Sec. 917.12  State regulatory program and proposed program amendment 

provisions not approved.

    (a) The Director does not approve the following provisions of the 
proposed program amendment concerning permit renewals that Kentucky 
submitted on April 23, 1998:
    (1) The phrase ``* * * if a permit has expired or * * *'' in KRS 
350.060(16).
    (2) The following sentence in KRS 350.060(16): ``Upon the submittal 
of a permit renewal application, the operator or permittee shall be 
deemed to have timely filed the permit renewal application and shall be 
entitled to continue, under the terms of the expired permit, the surface 
coal mining operation, pending the issuance of the permit renewal.''
    (b) Subsections (2) through (6) of the amendment submitted as House 
Bill 599 on May 9, 2000, are hereby not approved, effective June 20, 
2001.
    (c) The amendment submitted by letter dated April 12, 2002, 
proposing a new section of the Kentucky Revised Statutes at Chapter 350 
and referenced as Kentucky House Bill 405, is hereby not approved, 
effective November 20, 2002.
    (d) The phrase ``* * * coal mining activities and * * *'' in KRS 
350.445(3)(g) is not approved.
    (e) The exemption from the engineer inspection requirements of 
subsection 9 for an impoundment with no embankment structure, that is 
completely incised, or is created by a depression left by backfilling 
and grading, that is not a sedimentation pond or coal mine waste 
impoundment and is not otherwise intended to facilitate active mining at 
section 1(9)(c) at 405 KAR 16/18:100 is not approved. The exemption from 
examination for an impoundment with no embankment structure, that is 
completely incised or created by a depression left by backfilling and 
grading but not meeting MSHA requirements at 30 CFR 77.216 or not 
meeting the Class B and C classifications at section 1(10)(b) is not 
approved to the extent that it is not implemented and managed in 
accordance with the provisions of OSM Directive TSR-2.
    (f) The changes to Kentucky's Notice of Assessment of Civil 
Penalties and Penalty Assessment Conference Officer's Report that 
specify that prepayment of a proposed assessment or penalty is no longer 
required are not approved.

[65 FR 29953, May 10, 2000, as amended at 66 FR 33023, June 20, 2001; 67 
FR 70009, Nov. 20, 2002; 68 FR 2199, Jan. 16, 2003; 68 FR 42274, July 
17, 2003; 71 FR 54589, Sept. 18, 2006]



Sec. 917.13  State statutory and regulatory provisions set aside.

    (a) The following provision of Kentucky Revised Statute at KRS 
350.060(22) is inconsistent with section 701(28) of the Surface Mining 
Control and Reclamation Act of 1977 and is hereby set aside effective 
December 1, 1985:

    ``(22) All operations involving the crushing, screening, or loading 
of coal which do not separate the coal from its impurities, and which 
are not located at or near the mine site, shall be exempt from the 
requirements of this chapter.''

    (b) Reserved]
    (c) The following portions of the Kentucky Revised Statute at KRS 
350.060(16) are inconsistent with section 506 of SMCRA and less 
effective than 30 CFR 843.11 and are set aside effective September 6, 
2000:

    The specific wording is the phrase ``if a permit has expired or . . 
.'' and the following sentence:
    Upon the submittal of a permit renewal application, the operator or 
permittee shall be deemed to have timely filed the permit renewal 
application and shall be entitled to continue, under the terms of the 
expired permit, the surface coal mining operation, pending the issuance 
of the permit renewal.

[50 FR 47728, Nov. 20, 1985, as amended at 65 FR 53911, Sept. 6, 2000]



Sec. 917.15  Approval of Kentucky regulatory program amendments.

    (a) The following is a list of the dates amendments were submitted 
to OSM, the dates when the Director's decision approving all, or 
portions of these amendments, were published in the

[[Page 542]]

Federal Register and the State citations or a brief description of each 
amendment. The amendments in this table are listed in order of the date 
of final publication in the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
May 28, 1982.........................  January 4, 1983........  405 KAR 1:005 Sec.  6; 3:005 Sec.  6; 7:020
                                                                 Sec.  1(11), (70), (117); 7:030 Sec.  1;
                                                                 7:040 Sec.  5(1), 10(2), (7); 7:090 Sec.
                                                                 4(1), (6); Sec.  6; 7:095, 8:010 Sec.  6(1),
                                                                 (2), 13(1), 20(5), 21(2)(a)(4), (b)(1), 22(1),
                                                                 (2)(a), (a)(2), (2)(c)(1), (4), (5), (6); 8:020
                                                                 Sec.  2(2)(h); 8:030 Sec.  23(4); 12:010 Sec.
                                                                   3(5)(a), (b); 16:140 Sec.  2(1)(d); 18:140
                                                                 Sec.  2(1)(d); 24:020 Sec.  3(5), (7), 4(6);
                                                                 24:030 Sec.  4(4), 8(7), 9.
May 28, 1982.........................  May 13, 1983...........  KRS 151.250(3); 350.010, .035, .062(9), .093
                                                                 Sec.  2, .425, .990; 405 KAR 16:020 Sec.  4.
January 11, 1983.....................  May 20, 1983...........  405 KAR 7:020 Sec.  1(13), (27), (34), (57);
                                                                 12:010 Sec.  6; 16:060 Sec. Sec.  1(3),
                                                                 9(2), 11(1), :090 Sec. Sec.  2, 5(5), :110
                                                                 Sec.  2(2), :130 Sec.  2(2), :220 Sec.  4;
                                                                 18:060 Sec. Sec.  7(3), 9(1), (3), :090 Sec.
                                                                 Sec.  2, 5(5), :110 2(2), :130 Sec.  2(2),
                                                                 :230 Sec.  4; 24:030 Sec.  3.
February 1, 1983.....................  October 12, 1983.......  Technical Reclamation Memorandum 9.
October 31, 1983.....................  November 25, 1983......  405 KAR 7:020E, :030E.
January 10, 1984.....................  April 13, 1984.........  ``Kentucky's Plan for Transition to Primacy''.
May 1, 1984..........................  August 22, 1984........  KRS 350.010, .032, .093(2), .250(1), (3), (4);
                                                                 355.060(5)(g).
October 31, 1983.....................  September 25, 1984.....  405 KAR 1:030, :040, :050; 7:020, :030, :090;
                                                                 8:030, :040; 16:060, :090, :140; 18:090, :140.
October 31, 1983.....................  October 3, 1984........  405 KAR 8:050 Sec.  2; 16:190; 18:190.
October 12, 1984.....................  March 4, 1985..........  405 KAR 7:020 Sec.  1(87), (118), :030 Sec.
                                                                 3(1)(e).
August 3, 1984.......................  May 30, 1985...........  KRS Chapter 350, .032, .060, .135, .990; 405 KAR
                                                                 16:020.
August 29, 1985......................  November 20, 1985......  Paragraph D of ``Field Enforcement Procedures''
                                                                 in Sec.  II of the State program plan; 405 KAR
                                                                 7:090 Sec. Sec.  11(2)(a), 12(3); 24:030
                                                                 defining ``substantial legal and financial
                                                                 commitments''.
December 4, 1984.....................  December 10, 1985......  405 KAR 7:070; 16:120; 18:120.
June 6, 1984, December 17, 1985......  January 24, 1986.......  405 KAR 1:015; 3:015; 7:015.
August 13, 1985......................  March 3, 1986..........  405 KAR 7:020, :080; 8:030, :040; 12:010, :020;
                                                                 16:050, :110, :130, :170; 18:050, :110, :130,
                                                                 :170; 20:030.
September 16, 1985, December 10, 1985  March 17, 1986.........  405 KAR 7:015; 10:030.
December 10, 1985....................  April 4, 1986..........  405 KAR 7:090, Sec.  11(2)(a).
December 3, 1985.....................  April 9, 1986..........  405 KAR 7:020E; 8:050E; 20:070E.
August 3, 1984.......................  May 27, 1986...........  KRS 350.066 through .070; 405 KAR 10:035.
April 29, 1986.......................  July 15, 1986..........  KRS Chapter 350 contained in Senate Bills 130,
                                                                 374; KRS 350.470 through .550 contained in
                                                                 House Bill 285; KRS 350.060(22) contained in
                                                                 House Bill 757; KRS 350.990 contained in House
                                                                 Bill 839.
August 30, 1985, September 16, 1985,   August 27, 1986........  405 KAR 7:020, :060; 8:030, :040, :050; 16:010,
 February 7, 1986.                                               :060, :080, :190; 18:060, :080, :190; 20:040,
                                                                 :070; documents incorporated by reference:
                                                                 ``Soil Conservation Service, Kentucky Standards
                                                                 and Specifications for Land Restoration,
                                                                 Currently Mined Prime Farmland;'' ``Kentucky
                                                                 Prime Farmland Revegetation and Crop Production
                                                                 After Mining;'' ``Estimated Crop Yields on
                                                                 Prime Farmland Soils in Western Kentucky
                                                                 Coalfields;'' ``Estimated Crop Yields on Prime
                                                                 Farmland Soils in Eastern Kentucky
                                                                 Coalfields''.
September 5, 1986....................  March 9, 1987..........  405 KAR 10:200.
February 27, 1987....................  December 31, 1987......  405 KAR 16:060 Sec.  11; 18:060 Sec.  11, :190
                                                                 Sec.  2.
June 17, 1987........................  March 10, 1988.........  405 KAR 7:070.
April 29, 1988.......................  October 6, 1988........  405 KAR 7:090.
May 28, 1987.........................  October 7, 1988........  KRS 350.032 contained in House Bill 869.
July 5, 1989.........................  December 15, 1989......  405 KAR 8:010, :020, :030, :040; 24:040.
April 29, 1986.......................  April 9, 1990..........  KRS 350.032.
April 21, 1988.......................  August 10, 1990........  KRS 350.020, .060, .064, .093, .130, .131, .151.
August 15, 1989......................  November 1, 1990.......  405 KAR 8:010 Sec.  20(3), (5).
July 15, 1988........................  December 31, 1990......  405 KAR 7:015, :020, :030, :090; 8:010, :020,
                                                                 :050; 10:010, :020, :030, :040, :050; 16:010,
                                                                 :070, :080, :100, :110, :120, :150, :190;
                                                                 18:010, :070, :080, :100, :110, :120, :150,
                                                                 :190; 20:010, :060; 24:020, :030, :040.
May 8, 1990..........................  February 6, 1991.......  KRS chapter 350 contained in Senate Bill 255;
                                                                 350.010, .053, .054, .057, .060, .070, .085,
                                                                 .090, .093, .110, .113, .130, .139, .151, .990;
                                                                 224.083.
January 9, 1991......................  April 16, 1991.........  405 KAR 10:040 Sec.  2(4)(b)1.
January 24, 1991.....................  September 23, 1991.....  405 KAR 7:020 Sec.  1; 8:010 Sec. Sec.
                                                                 13(4), (5), 18(5), 25(1) through (4), :030 Sec.
                                                                  Sec.  1(4), 2, 3, :040 Sec. Sec.  1(3), 2,
                                                                 3; 12:020 Sec.  3(6).
June 28, 1991........................  April 15, 1992.........  405 KAR 7:080.
September 18, 1989...................  August 18, 1992........  405 KAR 10:200; KRS 350.710-710.
June 28, 1991........................  October 1, 1992........  405 7:001, Sec.  1, :015 Sec.  4(6), (7),
                                                                 :020, :021, Sec.  1, :030 Sec.  3(1) through
                                                                 (4), :035, Sec. Sec.  1 through 9; 8:001 Sec.
                                                                   1, :020 Sec. Sec.  1, 1(1), (2)(c), 2, (1),
                                                                 (2)(g), 4, 4(c)(5); 10:001 Sec.  1, :200 Sec.
                                                                 Sec.  1, 2, 4(4), 5(3), 6(1), (2), 7(1), (d),
                                                                 (e), (f), (j), (2), (d), (e), (i); 12:001 Sec.
                                                                  1; 16:001 Sec.  1, :190 Sec.  7(2), :210
                                                                 Sec. Sec.  1(1), 2, 3, 4; 18:001 Sec.  1,
                                                                 :190 Sec.  5(2), :220 Sec. Sec.  1(1), 2, 3,
                                                                 4; 20:001 Sec.  1, :010 Sec. Sec.  2, 3, 4;
                                                                 24:001 Sec.  1.
March 13, 1992.......................  December 9, 1992.......  405 KAR 8:030(20), (36), :040(20), (36);
                                                                 16:180(1), (2), (3); 18:180(1), (2), (3).
July 30, 1992........................  December 17, 1992......  KRS Chapter 350 Sec. Sec.  350.550, .553,
                                                                 .560, .597.

[[Page 543]]

 
June 28, 1991........................  January 12, 1993.......  405 KAR 8:010 Sec. Sec.  5(1)(c), (d),
                                                                 12(1)(a), 14(8), 20(2)(a)10, (3)(a), (d)23,
                                                                 (f), 20(5) through (7).
July 30, 1992........................  March 26, 1993.........  KRS Chapter 350 contained in House Bill 844 and
                                                                 Senate Bill 381; 350.010, .0281, .130(1), .260,
                                                                 .450(4)(c), .705(1) (b), (c); numerous other
                                                                 sections on ``applicant,'' ``permit
                                                                 applicant,'' ``permittee,'' ``person,''
                                                                 ``operator''.
June 28, 1991........................  June 8, 1993...........  405 KAR 16:200, 18:200, TRM No. 19 (Field
                                                                 Sampling Techniques for Determining Ground
                                                                 Cover, Productivity, and Stocking Success of
                                                                 Reclaimed Surface Mined Lands), the use of
                                                                 average county yield data found in Kentucky
                                                                 Agricultural Statistics, a report published
                                                                 annually by the Kentucky Agricultural
                                                                 Statistics Service.
July 28, 1992........................  August 6, 1993.........  KRS 350 contained in Senate Bill 318; 405 KAR
                                                                 7:001, 7:090, :091, :092; 8:001; 12:020.
July 21, 1992........................  October 1, 1993........  405 KAR 1:007, 3:007, 7:030 Sec.  4.
May 21, 1993.........................  February 24, 1994......  405 KAR 10:050 Statutory and regulatory
                                                                 citations, sections Necessity and Function,
                                                                 1(1), 2(4), (5); 12:001 section Necessity and
                                                                 Function, (29), (30); 12:010 Statutory and
                                                                 regulatory citations, sections Necessity and
                                                                 Function, 3(2), (5)(a), (b), 4(1), (3).
June 28, 1991........................  May 26, 1994...........  405 KAR 8:030 Sec. Sec.  1(4)(a), (b), 2(3),
                                                                 (4), (5)(a), (11), (12), 3(5), 4(2), 5(4), 10,
                                                                 37-MRP, 38-MRP; 8:040 Sec. Sec.  1(3)(a),
                                                                 (b), 2(3), (4), (11), (12), 3(5), 4(2), 5(4),
                                                                 10, 37-MRP, 38-MRP.
April 26, 1994.......................  September 1, 1994......  405 KAR 7:080 sections Necessity and Function,
                                                                 1, 3, 4, 5, 6(4), (5), (8)(b), 7(1)(b), (3), 8,
                                                                 10(2) (a), (b), 11(1), (d), (e).
April 18, 1994.......................  September 16, 1994.....  KRS 350.010, 350(1) through (32).
October 3, 1994......................  February 15, 1995......  405 KAR 7:080 Sec. Sec.  5(2), (a), (b), 6,
                                                                 8(2)(a)(11), (b)(11), 11(1), (e).
April 29, 1994.......................  June 27, 1995..........  KRS 42.470(1)(c); 132; 136; 138; 139; 177.977;
                                                                 211.390(1), .392(1), (2), (5), (6), (8);
                                                                 350.010 (1), (2), (9), (16), (22), (23), .0285,
                                                                 .0301(1), (4), .0305, .032(2), (4), .070(1),
                                                                 .085(1), (7), .095(1), (2), .421, (1), (2),
                                                                 .560(1); 351.070(13), (14); 352.420(3).
August 2, 1994.......................  December 7, 1995.......  405 KAR 16:010 Sec. Sec.  1, 6, 7, 8; 18:010
                                                                 Sec. Sec.  4, 5, 6.
August 15, 1996......................  August 29, 1997........  KRS 350.131(3), 350.150(1), Chapter 350 Section
                                                                 3, KRS 350.0301(1), 350.990(1).
November 3, 1997.....................  July 31, 1998..........  Staffing and budget levels.
June 28, 1991........................  August 4, 1998.........  405 KAR 16:200 Sec.  1(7)(b) and 18:200 Sec.
                                                                 1(7)(b).
April 23, 1998.......................  May 10, 2000...........  KRS 350.060(16) [partial approval]; 350.131(2);
                                                                 350.139(1); 350.990 (1), (3), (4), (9), and
                                                                 (11).
May 9, 2000..........................  June 20, 2001..........  House Bill 599, subsection (1).
May 4, 1999..........................  December 26, 2001......  KAR 10:010 Sections 2(2), 5(1), 5(2) and bond
                                                                 forms SME-42(6/99 ed.) and SME-42-F(6/99 ed.)
December 22, 1998....................  February 5, 2002.......  405 KAR 7:097 approved (in-kind reclamation)
May 9, 2000..........................  April 30, 2002.........  House Bill 502, part IX, Subsection 36(b), KRS
                                                                 350.085(6).
January 25, 2001.....................  May 7, 2002............  405 KAR 18:210, Sections 1(4), 2(2), and 3(4).
January 28, 2000.....................  June 19, 2002..........  405 KAR 20:060 Sec.  3(3)(b) 2000 and (c).
April 25, 2002.......................  November 6, 2002.......  2002 HB 809, Kentucky Revised Statutes at
                                                                 Chapter 350.
May 9, 2000..........................  January 16, 2003.......  House Bill 792, KRS 350.445(3) (except for a
                                                                 portion of (3)(g)).
June 25, 2002........................  May 8, 2003............  KAR 16:090 Sections 1(1), (2), 4, 5(2) and (6)
                                                                 and 18:090 Sections 1(1), (2), 4, 5(2) and (6).
July 30, 1997........................  July 17, 2003..........  405 KAR 8:001 section 1(50); 16:001 section
                                                                 1(50), (51), (69); 16:090 sections 1 through 5;
                                                                 16:100 section 1(1),(3),(5),(6),(10), section
                                                                 2(1); 16:160 section 1(1),(2),(3), section
                                                                 2(2), section 3(1),(3), section 4; 18:001
                                                                 section 1(52), (53), (72); 18:090 sections 1
                                                                 through 5; 18:100 section
                                                                 1(1),(3),(5),(6),(10), section 2(1); and 18:160
                                                                 section 1(1),(2),(3), section 2(2), section
                                                                 3(1),(3) and section (4).
July 30, 1997........................  August 11, 2004........  405 KAR 8:001 Section 1(3), (20), (24), (46),
                                                                 (60), (65), (69), (86) and (108), Section 2(1)
                                                                 and (2); 405 KAR 8:030 Section 3(3)(d)1,
                                                                 Section 11(2)(a), Section 12(4)(a) and (b),
                                                                 Section 13(1)(b) and (3), Section 14(5),
                                                                 Section 15(5), Section 16, Section 20(3),
                                                                 Section 23(1)(g), Section 24(4)(e), Section
                                                                 26(3), Section 27(2)(e), Section 32(3)(e),
                                                                 Section 34, Section 37(1)(b), Section 38(1) and
                                                                 (2); 405 KAR 8:040 Section 3(3)(d)1, Section
                                                                 11(2)(a) and (4)(a), (b), Section 13(1)(b)2 and
                                                                 (3), Section 14(5), Section 15(5), Section 16,
                                                                 Section 20(3), Section 26, Section 32(1)(b)5
                                                                 and (3)(e), Section 34, Section 37(1)(b),
                                                                 Section 39(1) and (2); 405 KAR 16:001 Section
                                                                 1(3), (32), (46), (53), (63)- deleted, (81),
                                                                 (98), (99), (108), Section 2(1) and (2), 405
                                                                 KAR 16:060 Section 1(4)(b), Section 2(2),
                                                                 Section 4(1), Section 8(1)(a), (b), (2)(a)-(e);
                                                                 405 KAR 18:001 (3), (6), (24), (35), (49),
                                                                 (55), (61), (62)- deleted, (67), (68), (84),
                                                                 (100), (109), Section 2(1) and (2); 405 KAR
                                                                 18:060 Section 1(4)(b), Section 2(2), Section
                                                                 4(1), Section 12(1)(a), (b), (2)(a)-(e); 405
                                                                 KAR 18:210 Section 1(1), (2) and (3), Section
                                                                 (1) and (3), Section 3, Section 4 and Section
                                                                 5.
May 14, 2004.........................  December 20, 2004......  KRS 350.280, subsections (1) (b), (1) (c), 1(e),
                                                                 1(f), (2), (3), (4); subsections 4(a)-(d), (5),
                                                                 (6), (7) and (8) are deleted.
June 28, 1991 with record material     May 3, 2005............  405 KAR 16:200 Section 1(7)(a) and (7)(d) and
 submitted July 29, 2004.                                        405 KAR 18:200 Section 1 (7)(a) and (7)(d).

[[Page 544]]

 
March 28, 2006.......................  September 18, 2006.....  Easements of necessity, deletion of outdated
                                                                 language in KRS Chapter 350.
September 14, 2009...................  March 9, 2011..........  405 KAR 16:140, Disposal of coal mine waste.
                                                                405 KAR 18:140, Disposal of coal mine waste.
----------------------------------------------------------------------------------------------------------------

    (b) The Director is deferring his decision on the enforcement 
provisions of section 720 of the Act from its effective date (October 
24, 1992), to the effective date of KRS 350.421(1) and (2) (July 15, 
1994).

[62 FR 9942, Mar. 5, 1997]

    Editorial Note: For Federal Register citations affecting Sec. 
917.15, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 917.16  Required regulatory program amendments.

    (a)-(b) [Reserved]
    (c) Pursuant to 30 CFR 732.17, Kentucky is required, prior to 
implementation of the following statutory amendments, to submit to the 
Director proposed regulations to implement the amendments, and to 
receive the Director's approval of the regulations:
    (1)-(3) [Reserved]
    (d) Pursuant to 30 CFR 732.17, Kentucky is required to submit for 
OSM's approval the following proposed amendments by the dates specified:
    (1)-(4) [Reserved]
    (5) [Reserved]
    (e) By March 23, 1992, Kentucky shall amend its rules at 405 KAR 
8:010 section 13(4)(c) to include violations of Federal regulatory 
programs and other State regulatory programs, not just violations of KRS 
chapter 350 and regulations adopted pursuant thereto.
    (f)-(g) [Reserved]
    (h) By June 14, 1993, Kentucky shall amend its rules at 405 KAR 
8:010 section 20(6)(h) by including OSM as one of the parties to be 
notified of the cabinet's decision to approve or deny the application 
for an operator change and to require that the regulatory authority be 
notified when the approved change is consummated.
    (i)-(m) [Reserved]
    (n) By October 5, 1998, Kentucky shall amend the Kentucky program, 
or provide a written description of an amendment together with a 
timetable for enactment which is consistent with established 
administrative or legislative procedures in the State, to delete the 
term ``haul roads'' at sections 1(7)(b) of 405 KAR 16:200 and 18:200.
    (o) [Reserved]

[50 FR 23687, June 5, 1985]

    Editorial Note: For Federal Register citations affecting Sec. 
917.16, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 917.17  State regulatory program amendments not approved.

    (a) The amendment to Kentucky's regulations at 405 KAR 16:060 
Section 8(4)(c); 18:060 Section 12(4)(c) and 18:210 Section 3(5)(c) 
which were originally submitted by Kentucky on July 30, 1997 and later 
amended are disapproved.
    (b) The amendment at Kentucky Revised Statute 350.060(22) submitted 
by Kentucky on May 26, 1982, and the legal opinion (insofar as it 
relates to this amendment) and Reclamation Advisory Memorandum No. 33 
submitted by Kentucky on October 28, 1983, are hereby disapproved 
effective September 17, 1985.
    (c) The amendment to Kentucky's program transferring $3,840,000 from 
the Kentucky Bond Pool Fund to the Commonwealth's General Fund for the 
2002-2003 fiscal year is not approved.
    (d) The addition of the word ``abated'' to modify the term 
``violation'' in paragraph (4)(a) of section 3 of Chapter 7:090 of Title 
405 of the Kentucky Administrative Regulations, as submitted to OSMRE by 
letter dated April 27, 1988, is hereby disapproved. The effect of the 
disapproval is to continue the requirement that any person who chooses 
not to contest the fact of violation (whether abated or not) or the 
assessment shall pay the assessment in full

[[Page 545]]

within 30 days of the date the final assessment order was mailed.

[49 FR 50720, Dec. 31, 1984, as amended at 50 FR 37659, Sept. 17, 1985; 
51 FR 29919, Aug. 21, 1986; 53 FR 39261, Oct. 6, 1988; 53 FR 39473, Oct. 
7, 1988; 63 FR 40827, July 31, 1998; 69 FR 26503, May 13, 2004; 69 FR 
48787, Aug. 11, 2004; 70 FR 11123, Mar. 8, 2005]



Sec. 917.20  Approval of the Kentucky abandoned mine reclamation plan.

    The Kentucky Abandoned Mine Reclamation Plan as submitted on June 4, 
1981, is approved. Copies of the approved program are available at the 
following locations:
    (a) Office of Surface Mining Reclamation and Enforcement, Lexington 
Field Office, 2675 Regency Road, Lexington, Kentucky 40503-2922.
    (b) Commonwealth of Kentucky, Natural Resources and Environmental 
Protection Cabinet, Division of Abandoned Lands, 618 Teton Trail, 
Frankfort, Kentucky 40601.

[59 FR 17929, Apr. 15, 1994; 59 FR 27239, May 26, 1994]



Sec. 917.21  Approval of Kentucky abandoned mine land reclamation plan 

amendments.

    (a) The Kentucky Amendment, submitted to OSM on December 8, 1982, is 
approved. You may receive a copy from:
    (1) Commonwealth of Kentucky, Natural Resources and Environmental 
Protection Cabinet, Division of Abandoned Lands, 618 Teton Trail, 
Frankfort, Kentucky 40601; or
    (2) Office of Surface Mining Reclamation and Enforcement, Lexington 
Field Office, 2675 Regency Road, Lexington, Kentucky 40503-2922.
    (b) The Kentucky Abandoned Mine Reclamation Amendment, submitted to 
OSM on March 25, 1985, is approved. Copies may be obtained at the 
addresses listed in paragraph (a) of this section.
    (c) The following is a list of the dates amendments were submitted 
to OSM, the dates when the Director's decision approving all, or 
portions of these amendments, were published in the Federal Register and 
the State citations or a brief description of each amendment. The 
amendments in this table are listed in order of the date of final 
publication in the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
June 24, 1992........................  December 17, 1992......  Chapter 3--Goals and Obligations, Chapter 15--
                                                                 Maps of Eligible Lands and Waters.
May 5, 1994..........................  July 29, 1994..........  Chapter 5--Coordination with Ramp, Indian, and
                                                                 Other Reclamation Programs.
----------------------------------------------------------------------------------------------------------------

    (d) The Kentucky Abandoned Mine Land Reclamation Plan amendment, 
submitted to OSM on April 29, 2002, is approved with the following 
exceptions. The word ``or,'' which appears at the end of paragraph 1 of 
the section entitled ``Lands for Permanent Facilities,'' is not 
approved. We are approving the State of Kentucky's incorporation by 
reference of the Federal AML Enhancement Rule into their regulations. 
This approval is subject to the restrictions placed upon the Federal 
regulation by the court in Kentucky Resources Council v. Norton, 2002 
U.S. App. Lexis 11365, Slip. Op. at 5. (D.C. Cir. May 30, 2002) The 
``Reclamation Agreements'' provision at the end of Chapter 12 only 
applies to AML reclamation projects authorized through the Federal AML 
grant process. Copies may be obtained at the address listed in (a)(2) of 
this section for OSM or the Commonwealth of Kentucky, Natural Resources 
and Environmental Protection Cabinet, Division of Abandoned Mine Lands, 
2521 Old Lawrenceburg Road, Frankfort, Kentucky 40601.
    (e) The Kentucky AMLR Plan amendment submitted on April 23, 2007, 
and consisting of revisions to KRS Chapter 350 that correspond to 
changes to the Federal Surface Mining Control and Reclamation Act of 
1977 resulting from

[[Page 546]]

the Relief and Health Care Act of 2006, is approved.

[62 FR 9943, Mar. 5, 1997, as amended at 68 FR 65843, Nov. 24, 2003; 72 
FR 59479, Oct. 22, 2007]



Sec. 917.30  State-Federal cooperative agreement.

                          Cooperative Agreement

    The Governor of the Commonwealth of Kentucky (the Governor) and the 
Secretary of the Department of the Interior (the Secretary) enter into a 
Cooperative Agreement (Agreement) to read as follows:

       Article I: Introduction, Purpose, and Responsible Agencies

                              A. Authority

    This Agreement is authorized by Section 523(c) of the Surface Mining 
Control and Reclamation Act (Act), 30 U.S.C. 1273(c), which allows a 
State with a permanent regulatory program approved by the Secretary 
under 30 U.S.C. 1253, to elect to enter into an Agreement for the 
regulation and control of coal exploration operations not subject to 43 
CFR Group 3400 and surface coal mining and reclamation operations on 
Federal lands. This Agreement provides for State regulation consistent 
with the Act, the Federal lands program (30 CFR Chapter VII, Subchapter 
D) and the approved Kentucky State Program (Program) for surface coal 
mining and reclamation operations on Federal lands.

                               B. Purposes

    The purposes of this Agreement are to (a) foster Federal-State 
cooperation on the regulation of surface coal mining and reclamation 
operations and coal exploration operations not subject to 43 CFR Group 
3400, (b) minimize intergovernmental duplication of effort, and (c) 
provide for uniform and effective application of the Program on all 
lands in Kentucky in accordance with the Act and the Program.

                 C. Responsible Administrative Agencies

    The Kentucky Natural Resources and Environmental Protection Cabinet 
(NREPC), acting through the Department for Surface Mining Reclamation 
and Enforcement (DSMRE), shall be responsible for administering this 
Agreement on behalf of the Governor. The Office of Surface Mining 
Reclamation and Enforcement (OSM) shall administer this Agreement on 
behalf of the Secretary.

                       Article II: Effective Date

    After being signed by the Secretary and the Governor, this Agreement 
shall be effective on October 1, 1998. This Agreement shall remain in 
effect until terminated as provided for in Article XI.

                        Article III: Definitions

    The terms and phrases used in this Agreement, which are defined in 
the Act, 30 CFR Parts 700, 701 and 740 and defined in the KRS 350 and 
the rules and regulations promulgated pursuant to that Act, shall have 
the same meanings as set forth in said definitions. Where there is a 
conflict between the above referenced State and Federal definitions, the 
definitions used in the approved State Program will apply except in the 
case of a term which defines the Secretary's continuing responsibilities 
under the Act or other laws.

                        Article IV: Applicability

    In accordance with the Federal lands program, the laws, regulations, 
terms and provisions of the Program are applicable to Federal lands in 
Kentucky except as otherwise stated in this Agreement, The Act, 30 CFR 
740.4 and 745.13 or other applicable Federal laws, Executive Orders or 
regulations.
    Orders and decisions issued by the NREPC in accordance with the 
Program that are appealable shall be appealed to the reviewing authority 
in accordance with the Program. Orders and decisions issued by the 
Secretary or his authorized agents that are appealable shall be appealed 
to the Department of the Interior's Office of Hearings and Appeals.

                     Article V: General Requirements

    The Governor and the Secretary affirm that they will comply with all 
provisions of this Agreement.

                      A. Authority of State Agency

    NREPC has and shall continue to have the authority under State law 
to carry out this agreement.

                               B. Funding

    Upon application by NREPC, and subject to appropriations, OSM will 
provide the State with funds to defray the costs associated with 
carrying out its responsibilities under this Agreement as provided in 
Section 705(c) of the Act and 30 CFR part 735. Such funds will cover the 
full cost incurred by NREPC in carrying out those responsibilities. The 
amount of the grant will be determined using the procedures specified in 
the Federal Assistance Manual Chapter 3-10 and appendix III.

[[Page 547]]

    For purposes of this agreement, actual costs of NREPC's 
administration of its approved program on Federal lands in accordance 
with this agreement shall be that percentage of NRECP's total program 
expenditures during any specific grant period that equals the percentage 
of Federal lands within all lands under permit in the State of Kentucky 
for that specific grant period.
    If NREPC applies for a grant but sufficient funds have not been 
appropriated to OSM, OSM and NREPC will meet to decide upon appropriate 
measures that will insure that mining operations on Federal lands 
located in Kentucky are regulated in accordance with the approved 
Program. The NREPC also reserves the right to terminate this agreement 
should OSM be unable to adequately fund this program.

                         C. Reports and Records

    NREPC will make annual reports to OSM containing information with 
respect to compliance with terms of this Agreement pursuant to 30 CFR 
745.12(d).
    Upon request, NREPC and OSM will exchange information generated 
under this Agreement, except where prohibited by Federal or State law.
    OSM will provide NREPC with a copy of any final evaluation reports 
prepared concerning State administration and enforcement of this 
Agreement. NREPC comments on the report will be attached before being 
sent to the Congress or other interested parties.

                              D. Personnel

    NREPC shall have the personnel necessary to fully implement this 
Agreement in accordance with the provision of the Act, applicable 
regulations, the Federal lands program and the approved Program.

                       E. Equipment and Facilities

    NREPC will assure itself access to equipment, laboratories and 
facilities to perform all inspections, investigations, studies, tests 
and analyses that are necessary to carry out the requirements of this 
Agreement.

             F. Permit Application Fees and Civil Penalties

    The amount of the fee accompanying an application for a permit for 
operations on Federal lands in Kentucky shall be determined in 
accordance with KRS 350.060 and Federal law. All permit fees and civil 
penalties collected from operations on Federal lands will be retained by 
the State. Permit fees shall be considered Program income. Civil 
penalties shall not be considered Program income. The financial status 
report submitted to OSM pursuant to 30 CFR 735.26 shall include the 
amount of fees and civil penalties collected and attributable to Federal 
lands during the prior State fiscal year.

            Article VI: Review of Permit Application Package

                           A. Responsibilities

    NREPC will assume primary responsibility for the analysis, review, 
and approval, disapproval, or conditional approval of the permit 
application component of the permit application package (PAP) required 
by 30 CFR 740.13 for surface coal mining and reclamation operations in 
Kentucky on Federal lands. NREPC will assume the responsibilities for 
review of permit applications to the extent authorized in 30 CFR 
740.4(c)(1), (2), (3), (4), (6), and (7).
    For proposals to conduct surface coal mining operations involving 
leased Federal coal, OSM is responsible for preparing a mining plan 
decision document in accordance with 30 CFR 746.13 and obtaining the 
Secretary's approval.
    The Bureau of Land Management (BLM) is responsible for matters 
concerned exclusively with regulations under 43 CFR Group 3400.
    The Secretary reserves the right to act independently of NREPC to 
carry out responsibilities under laws other than the Act or provisions 
of the Act not covered by the Program, and in instances of disagreement 
over the Act and the Federal lands program. The Secretary will make 
determinations under the Act that cannot be delegated to the State, some 
of which have been delegated to OSM.
    Responsibilities and decisions which can be delegated to NREPC under 
other applicable Federal laws may be specified in working agreements 
between OSM and the State with the concurrence of any Federal agency 
involved and without amendment to this agreement.

                      B. Permit Application Package

    NREPC shall require an applicant proposing to conduct surface coal 
mining and reclamation operations on Federal lands to submit a PAP with 
an appropriate number of copies to NREPC. NREPC will furnish OSM, the 
Federal land management agency, and any other agency with jurisdiction 
or responsibility over Federal lands affected by operations proposed in 
the PAP with an appropriate number of copies of the PAP. The PAP will be 
in the form required by NREPC and will include any supplemental 
information required by OSM, the Federal land management agency, and any 
other agency with jurisdiction or responsibility over Federal lands 
affected by operations proposed in the PAP.
    At a minimum, the PAP will satisfy the requirements of 30 CFR 
740.13(b) and include the information necessary for NREPC to make a 
determination of compliance with the Program, and for OSM, the 
appropriate

[[Page 548]]

Federal land management agencies, and any other agencies with 
jurisdiction or responsibilities over Federal lands affected by 
operations proposed in the PAP to make determinations of compliance with 
applicable requirements of the Act, the Federal lands program, other 
Federal laws, Executive Orders, and regulations for which they are 
responsible.

                          C. Review Procedures

    NREPC will be the primary point of contact for applicants regarding 
the review of the PAP for compliance with the Program and State laws and 
regulations. OSM will review the applicable portions of the PAP for 
compliance with the non-delegated responsibilities of the Act and for 
compliance with the requirements of other Federal laws, Executive 
Orders, and regulations.
    OSM and NREPC will develop a work plan and schedule for PAP reviews 
that comply with the time limitations established by the approved State 
program, and each agency will designate a person as the Federal lands 
liaison. The Federal lands liaisons will serve as the primary points of 
contact between OSM and NREPC throughout the review process. Not later 
than 45 calendar days after receipt of an administratively complete PAP, 
unless a different schedule is agreed upon, OSM will furnish NREPC with 
its review comments on the PAP and specify any requirements for 
additional data.
    OSM and NREPC will coordinate with each other during the review 
process as needed. NREPC will send to OSM copies of any correspondence 
with the applicant and any information received from the applicant 
regarding the PAP.
    OSM will send to NREPC copies of all OSM correspondence which may 
have a bearing on the PAP.
    OSM will provide technical assistance to NREPC when requested, and 
will have access to NREPC files concerning operations on Federal lands. 
NREPC will keep OSM informed of findings made during the review process 
which bear on the responsibilities of OSM or other Federal agencies.

     D. Coordination Between NREPC, OSM, and Other Federal Agencies

    NREPC will, to the extent authorized, consult with the Federal land 
management agency and BLM pursuant to 30 CFR 740.4(c)(2) and (3), 
respectively. NREPC will also be responsible for obtaining the comments 
and determinations of other agencies with jurisdiction or responsibility 
over the Federal lands affected by the operations proposed in the PAP. 
NREPC will request all Federal agencies to furnish their findings or any 
request for additional information to NREPC within 45 calendar days of 
the date of receipt of the PAP. OSM will, upon request, assist NREPC in 
obtaining such information.
    In accordance with 30 CFR 745.12(g)(2), where lands containing 
leased Federal coal are involved, NREPC will provide OSM, in the form 
specified by OSM in consultation with NREPC, with written findings 
indicating that each permit application is in compliance with the terms 
of the regulatory program and a technical analysis of each permit 
application to assist OSM in meeting its responsibilities under other 
applicable Federal laws and regulations.
    Where leased Federal coal is involved, OSM will consult with and 
obtain the concurrences of BLM, the Federal land management agency, and 
any other agency with jurisdiction or responsibility over the Federal 
lands affected by the operations proposed in the PAP as required to make 
its recommendation for the Secretary's decision on the mining plan.
    Where BLM contacts the applicant in carrying out its 
responsibilities under 43 CFR Group 3400, BLM will immediately inform 
NREPC of its actions and provide NREPC with a copy of documentation of 
all decisions within 5 calendar days.

           E. Permit Application Decision and Permit Issuance

    NREPC will prepare a State decision package, including written 
findings and supporting documentation, indicating whether the PAP is in 
compliance with the Program. NREPC will make the decision on approval, 
disapproval, or conditional approval of the permit on Federal lands.
    Any permit issued by NREPC will incorporate any lawful terms or 
conditions imposed by the Federal land management agency, including 
conditions relating to post-mining land use, and will be conditioned 
upon compliance with the requirements of the Federal land management 
agency.
    NREPC may make a decision on approval, disapproval, or conditional 
approval of the permit on Federal lands in accordance with the Program 
prior to the necessary Secretarial decision on the mining plan when 
leased Federal coal is involved, provided that NREPC advises the 
operator in the permit that Secretarial approval of the mining plan must 
be obtained before the operator may conduct surface coal mining 
operations on the Federal lease. NREPC will reserve the right to amend 
or rescind any requirements of the permit to conform with any terms or 
conditions imposed by the Secretary in the approval of the mining plan.
    After making its decision on the PAP, NREPC will send a notice to 
the applicant, OSM, the Federal land management agencies, and any other 
agency with jurisdiction or responsibility over Federal lands affected 
by the operations proposed in the PAP. A

[[Page 549]]

copy of the permit and written findings will be provided to OSM upon 
request.

   F. Review Procedures for Permit Revisions; Renewals; and Transfer, 
                  Assignment, or Sale of Permit Rights

    Any permit revision or renewal for a surface coal mining and 
reclamation operation on Federal lands will be reviewed and approved, or 
disapproved, by NREPC after consultation with OSM on whether such 
revision or renewal constitutes a mining plan modification pursuant to 
30 CFR 746.18. OSM will inform NREPC within 10 calendar days of 
receiving a copy of a proposed permit revision or renewal, whether the 
permit revision or renewal constitutes a mining plan modification.
    Transfer, assignment, or sale of permit rights on Federal lands 
shall be processed in accordance with the Program and 30 CFR 740.13(e).

                        Article VII: Inspections

    NREPC will conduct inspections of all surface coal mining and 
reclamation operations on Federal lands, in accordance with 30 CFR 
740.4(c)(5) and the Program and prepare and file inspection reports in 
accordance with the Program. NREPC, subsequent to conducting any 
inspection pursuant to 30 CFR 740.4(c)(5), and in a timely fashion which 
will not exceed 45 calendar days, will file with OSM's Lexington Field 
Office a legible copy of the completed State inspection report.
    NREPC will be the point of contact and primary inspection authority 
in dealing with the operator concerning operations and compliance with 
the requirements covered by this Agreement, except as described 
hereinafter. Nothing in this Agreement will prevent inspections by 
authorized Federal or State land management agencies for purposes other 
than those covered by this Agreement. The Department of the Interior 
acting through OSM, the Federal land management agency or any other 
agency with jurisdiction or responsibility over Federal lands to be 
affected under the proposed PAP, may conduct any inspections necessary 
to comply with obligations under 30 CFR Parts 842 and 843 and any laws 
other than the Act.
    OSM will give NREPC reasonable notice of its intent to conduct an 
inspection under 30 CFR 842.11 in order to provide NREPC inspectors with 
an opportunity to accompany OSM inspectors. When OSM is responding to a 
citizen complaint of an imminent danger to the public health and safety, 
or of significant, imminent environmental harm to land, air or water 
resources pursuant to 30 CFR 842.11(b)(1)(ii)(c), it will contact NREPC 
and provide the opportunity for a joint Federal/State inspection. 
Inability of NREPC to make an immediate joint inspection will not be 
cause for OSM to delay a Federal inspection where a citizen has alleged, 
and OSM has reason to believe, that an imminent danger to the public 
health and safety, or significant, imminent environmental harm to land, 
air or water resources exists. All citizen complaints which do not 
involve an imminent danger or significant, imminent environmental harm 
will be referred to NREPC for action in accordance with OSM regulations, 
policies, and procedures.

                        Article VIII: Enforcement

    NREPC will have primary enforcement authority under the Act 
concerning compliance with the requirements of this Agreement and the 
Program in accordance with 30 CFR 740.4(c)(5). Enforcement authority 
given to the Secretary under other Federal laws and Executive Orders 
including, but not limited to, those listed in appendix A (attached) is 
reserved to the Secretary.
    During any joint inspections by OSM and NREPC, NREPC will have 
primary responsibility for enforcement procedures including issuance of 
orders of cessation, notices of violation, and assessment of penalties. 
NREPC will inform OSM prior to issuance of any decision to suspend or 
revoke a permit on Federal lands.
    During any inspection made solely by OSM or any joint inspection 
where NREPC and OSM fail to agree regarding the propriety of any 
particular enforcement action, OSM may take any enforcement action 
necessary to comply with 30 CFR Parts 843, 845, and 846. Such 
enforcement action will be based on the standards in the Program, the 
Act, or both, and will be taken using the procedures and penalty system 
contained in 30 CFR Parts 843, 845, and 846.
    NREPC and OSM will within 5 calendar days notify each other of all 
violations of applicable laws, regulations, orders, or approved mining 
permits subject to this Agreement, and of all actions taken with respect 
to such violations.
    Personnel of NREPC and OSM will be mutually available to serve as 
witnesses in enforcement actions taken by either party.
    This Agreement does not affect or limit the Secretary's authority to 
enforce violations of Federal laws other than the Act.

                            Article IX: Bonds

    NREPC and the Secretary will require each permittee who conducts 
operations on Federal lands to submit a performance bond payable to the 
State of Kentucky for an amount adequate to cover the operator's 
responsibilities under the Act and Program. Such performance bond will 
be conditioned upon compliance with all requirements of the Act, the 
Program, State rules and regulations, and any other requirements imposed 
by the Department of the Interior. Such bond will

[[Page 550]]

state on its face that in the event the Federal Lands Cooperative 
Agreement between Kentucky and the U.S. Department of the Interior is 
terminated, the portion of the bond covering the Federal lands 
increment(s) shall be assigned to the United States. The bond shall also 
state that if subsequent to the forfeiture of the bond, the Cooperative 
Agreement is terminated, any unspent or uncommitted proceeds of the 
portion of the bond covering the Federal lands increment(s) shall be 
assigned to and forwarded to the United States. NREPC will advise OSM 
within 30 calendar days of any adjustments to the performance bond made 
pursuant to the Program.
    Prior to releasing the permittee from any obligation under such bond 
for surface coal mining operations involving leased Federal coal, NREPC 
will obtain the concurrence of OSM. OSM concurrence will include 
coordination with the Federal land management agency and any other 
agency with jurisdiction or responsibility over Federal lands affected 
by the surface coal mining and reclamation operation.
    Submission of a performance bond does not satisfy the requirements 
for a Federal lease bond required by 43 CFR subpart3474 or lessee 
protection bond required in addition to a performance bond, in certain 
circumstances, by Section 715 of the Act. Where Federal lease bonds or 
protections are required, OSM or the appropriate Federal agency is 
responsible for the collection and maintenance of such bonds.

  Article X: Designating Areas Unsuitable for All or Certain Types of 
  Surface Coal Mining and Reclamation Operations and Activities, Valid 
         Existing Rights (VER), and Compatibility Determinations

                       A. Unsuitability Petitions

    1. Authority to designate Federal lands as unsuitable for mining 
pursuant to a petition is reserved to the Secretary.
    2. When either NREPC or OSM receives a petition to designate land 
areas unsuitable for all or certain types of surface coal mining 
operations that could impact adjacent Federal or non-Federal lands 
pursuant to Section 522(c) of the Act, the agency receiving the petition 
will notify the other agency of receipt within 5 calendar days and of 
the anticipated schedule for reaching a decision, and request and fully 
consider data, information and recommendations of the other agency. OSM 
will coordinate with the Federal land management agency and any other 
agency with jurisdiction or responsibility over Federal lands within or 
adjacent to the petition area and will solicit comments from these 
agencies.

                 B. VER and Compatibility Determinations

    The following actions will be taken when requests for determinations 
of VER pursuant to Section 522(e)(1) or (2) of the Act or for 
determinations of compatibility pursuant to Section 522(e)(2) of the Act 
are received:
    1. For Federal lands where proposed operations are prohibited or 
limited by Section 522(e)(1) or (2) of the Act and 30 CFR 761.11(a) or 
(b), OSM will make the VER determination.
    2. OSM will process requests for determinations of compatibility 
under Section 522(e)(2) of the Act and 30 CFR 761.11(b) and 761.12(c).

            Article XI: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

           Article XII: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or in part, it may be 
reinstated under the provisions of 30 CFR 745.16. The Secretary reserves 
the powers and authority specified in 30 CFR 745.13.

            Article XIII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIV: Changes in State or Federal Standards

    The Secretary or NREPC may, from time to time, promulgate new or 
revised performance or reclamation requirements or enforcement and 
administrative procedures. Each party will, if it determines it to be 
necessary to keep this Agreement in force, change or revise its 
regulations or request necessary legislative action.
    Such changes will be made under the procedures of 30 CFR part 732 
for changes to the Program and under the procedures of Section 501 of 
the Act for changes to the Federal lands program.
    NREPC and OSM will provide each other with copies of any changes to 
their respective laws, rules, regulations, policy statements, guidelines 
or standards pertaining to the enforcement and administration of this 
Agreement.

            Article XV: Changes in Personnel and Organization

    Each party to this Agreement will notify the other, when necessary, 
of any changes in personnel, organization and funding, or other changes 
that may affect the implementation of this Agreement to ensure 
coordination of responsibilities and facilitate cooperation.

[[Page 551]]

                   Article XVI: Reservation of Rights

    This Agreement will not be construed as waiving or preventing the 
assertion of any rights in this Agreement that the State or the 
Secretary may have under laws other than the Act or their regulations, 
including but not limited to those listed in Appendix A.

    Dated: August 18, 1998.
                                                         Paul E. Patton,
                                               Commonwealth of Kentucky.

    Dated: September 24, 1998.
                                                          Bruce Babbitt,
                                              Secretary of the Interior.

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations, including 43 CFR part 3480.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations, including 40 CFR part 1500.
    4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations, including 50 CFR part 402.
    5. The Fish and Wildlife Coordination Act, as amended, 16 U.S.C. 661 
et seq., 48 Stat. 401.
    6. The Bald and Golden Eagle Protection Act of 1940, as amended, 16 
U.S.C. 668-668d, and implementing regulations.
    7. The Migratory Bird Treaty Act, as amended, 16 U.S.C. 701-718h et 
seq.
    8. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR part 800.
    9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    11. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    12. The Reservoir Salvage Act of 1960, amended by the Preservation 
of Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et seq.
    13. Executive Order 11593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    14. Executive Order 11988 (May 24, 1977), for flood plain 
protection.
    15. Executive Order 11990 (May 24, 1977), for wetlands protection.
    16. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
    17. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
    18. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 
470aa et seq., as amended.
    19. The Constitution of the United States.
    20. The Surface Mining Control and Reclamation Act of 1977, 30 
U.S.C. 1201 et seq.
    21. 30 CFR Chapter VII.
    22. The Constitution of the Commonwealth of Kentucky and State Law.

[63 FR 53257, Oct. 2, 1998]



PART 918_LOUISIANA--Table of Contents



Sec.
918.1 Scope.
918.10 State regulatory program approval.
918.15 Approval of Louisiana regulatory program amendments.
918.16 Required program amendments.
918.20 Approval of Louisiana abandoned mine land reclamation plan.
918.25 Approval of Louisiana abandoned mine land reclamation plan 
          amendments.

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



Sec. 918.1  Scope.

    This part contains all rules applicable only within Louisiana which 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[45 FR 67343, Oct. 10, 1980]



Sec. 918.10  State regulatory program approval.

    The Secretary approved the Louisiana regulatory program, as 
submitted on January 3, 1980, and resubmitted on September 4, 1980, 
effective October 10, 1980. Copies of the approved program are available 
at:
    (a) Louisiana Department of Natural Resources, Office of 
Conservation, Injection and Mining Division, 625 N. 4th Street, P.O. Box 
94275, Baton Rouge, LA 70804-9275.
    (b) Office of Surface Mining Reclamation and Enforcement, Tulsa 
Field Office, 5100 East Skelly Drive, Suite 470, Tulsa, OK 74135-6548.

[64 FR 20167, Apr. 26, 1999]



Sec. 918.15  Approval of Louisiana regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the

[[Page 552]]

Federal Register and the State citations or a brief description of each 
amendment. The amendments in this table are listed in order of the date 
of final publication in the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
January 19, 1990.....................  May 8, 1991............  Chapters 1, 11, 13, 15, 17, 19, 21, 23, 25, 27,
                                                                 29, 31, 35, 37, 39, 41, 43, 45, 47, 51, 53, 55,
                                                                 59, 63, 65, 69.
August 14, 1990......................  May 21, 1991...........  Policy statements--PS-1, PS-2, PS-3 regarding
                                                                 requirements at LSMR 5353.C, 3127, 5321; 107.C,
                                                                 Chapter 4.
November 12, 1991....................  October 28, 1992.......  LSMR 107.G.1, 2; 53123.A, .1, .2, .3, .4,
                                                                 .B.1.b, .d, .2.a, .b, .3.b, .B.2.a, .4, .7, .9;
                                                                 Policy Statement PS-4 interpreting LSMR 2523;
                                                                 LSMR 53125.
May 3, 1994..........................  September 20, 1994.....  LSMR 53123.B.4.a.
November 2, 1994.....................  January 24, 1995.......  LSMR 5423.B.4.a; Policy Statement PS-5.
December 4, 1997.....................  March 11, 1998.........  LSMR section 105.
October 24, 1997.....................  May 8, 1998............  Sections 105.; 2537.A.11.; 2725.A., A.2., A.3.,
                                                                 A.3.a., C.1., F; 2907.C.5.; 3705.A.2., A.2.a.,
                                                                 A.2.b.; 3711.A., B.1. through B.6.; 3717.A.,
                                                                 A.2., A.3.; 4501.A.3., A.4.; 5333.A.1. through
                                                                 A.13.; 5411.A.; 5413.A.; 5503.A.2.; 5507.A.4.;
                                                                 6507.A.2.; 6913 .B.; 6915.B.1.; 6917.A.;
                                                                 7105.C.
August 23, 1999......................  December 7, 1999.......  R.S. 30:907(B)(16) through (20); (C); and
                                                                 927(2).
June 1, 2001.........................  December 14, 2001......  Revegetation Success Standards for Pastureland.
August 3, 2001.......................  February 26, 2002......  LSMR Sections 105, 1105, 1107.B through F, 1109,
                                                                 2111.A.8, 2113.B.4, and 2323.
October 2, 2001......................  November 15, 2002......  LAC Sections 5423.B.1.e. and 8.a.; 5424; 5425;
                                                                 and policy document titled, ``Reclamation Phase
                                                                 III Revegetation Success Standards for Post-
                                                                 Mining Land Use of Wildlife Habitat.
March 4, 2010........................  March 9, 2011..........  Sections 105; 2913; 3113 C., D., E., F., G., H.;
                                                                 3114; 3115 A. 17, 18, 19; 3127; 3129; 3131;
                                                                 3133; 3135; 3137; Chapter 35 title; 3521; 3523;
                                                                 3517 C.1.; 2304; 2305 A.1., A.2.c., d., e.,
                                                                 A.3., A.4.; 2307 A.1., A.3.; 5414; 6501 G.
----------------------------------------------------------------------------------------------------------------


[62 FR 9943, Mar. 5, 1997, as amended at 63 FR 11830, Mar. 11, 1998; 63 
FR 25394, May 8, 1998; 63 FR 38881, July 20, 1998; 64 FR 68291, Dec. 7, 
1999; 66 FR 64749, Dec. 14, 2001; 67 FR 8719, Feb. 26, 2002; 67 FR 
69129, Nov. 15, 2002; 76 FR 12856, Mar. 9, 2011]



Sec. 918.16  Required program amendments.

    Pursuant to 30 CFR 732.17(f)(1), Louisiana is required to submit to 
OSM by the specified date the following written, proposed program 
amendment, or a description of an amendment to be proposed, that meets 
the requirements of SMCRA and 30 CFR chapter VII and a timetable for 
enactment that is consistent with Louisiana's established administrative 
or legislative procedures.
    (a)-(b) [Reserved]

[60 FR 4544, Jan. 24, 1995]



Sec. 918.20  Approval of Louisiana abandoned mine land reclamation plan.

    The Secretary approved the Louisiana abandoned mine land reclamation 
plan, as submitted on February 3, 1986, effective December 10, 1986. 
Copies of the approved plan are available at:
    (a) Louisiana Department of Natural Resources, Office of 
Conservation, Injection and Mining Division, 625 N. 4th Street, P.O. Box 
94275, Baton Rouge, LA 70804-9275.
    (b) Office of Surface Mining Reclamation and Enforcement, Tulsa 
Field Office, 5100 East Skelly Drive, Suite 470, Tulsa, OK 74135-6548.

[64 FR 20167, Apr. 26, 1999]



Sec. 918.25  Approval of Louisiana abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
February 3, 1986.....................  November 10, 1986......  Approval of AMLR program.
June 12, 1989........................  April 9, 1990..........  Certification for Noncoal reclamation.

[[Page 553]]

 
March 4, 2010........................  March 9, 2011..........  Section 8509.
----------------------------------------------------------------------------------------------------------------


[62 FR 9944, Mar. 5, 1997, as amended at 76 FR 12856, Mar. 9, 2011]



PART 920_MARYLAND--Table of Contents



Sec.
920.1 Scope.
920.10 State program approval.
920.12 State program provisions disapproved.
920.15 Approval of Maryland regulatory program amendments.
920.16 Required program amendments.
920.20 Approval of Maryland abandoned mine plan.
920.25 Approval of Maryland abandoned mine land reclamation plan 
          amendments.

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



Sec. 920.1  Scope.

    This part contains all rules applicable only within Maryland that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[45 FR 79449, Dec. 1, 1980]



Sec. 920.10  State program approval.

    The Maryland State program submitted on March 3, 1980, as amended 
and clarified on June 16, 1980, and as further amended on April 9, 1980, 
June 3, 1981, and October 23, 1981, is approved effective February 18, 
1982. Copies of the approved program, as amended are available for 
review at:
    (a) Maryland Department of Natural Resources, Water Resources 
Administration, Bureau of Mines, 160 South Water Street, Frostburg, 
Maryland 21532.
    (b) Office of Surface Mining Reclamation and Enforcement, Harrisburg 
Field Office, Harrisburg Transportation Center, Third Floor, Suite 3C, 
Fourth and Market Streets, Harrisburg, Pennsylvania 17101.

[50 FR 47385, Nov. 18, 1985, as amended at 59 FR 17929, Apr. 15, 1994]



Sec. 920.12  State program provisions disapproved.

    The following provision of the Maryland permanent regulatory program 
submission is hereby disapproved: COMAR 08.13.09.41D, which proposes 
that in lieu of a civil penalty assessment, the regulatory authority may 
order a suspension of strip mining operations for an appropriate period 
of time such that the economic impact on the operator is equivalent to 
the amount of the civil penalty which would have been assessed for the 
violation.

[45 FR 79449, Dec. 1, 1980]



Sec. 920.15  Approval of Maryland regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
October 28, 1982.....................  February 8, 1984.......  COMAR 08.13.09.01B(24), .02K(2)(d), .05A(5),
                                                                 (12), (13), .07B(3), H(1), (3), .25A(4).
May 28, 1984, October 5, 1984........  January 22, 1985.......  Blaster certification program; COMAR
                                                                 08.13.09.02, .25; and other items.
January 30, 1985.....................  September 10, 1985.....  COMAR 08.13.09.02, .25.
January 13, 1984, June 8, 1984,        November 18, 1985......  COMAR 08.13.09, 08.13.09.07, .15B(2)(c), C(3),
 August 7, 1984, October 10 1984,                                F(3), H(2), (5), I(1)(b), (c), (2)(a), J(4),
 November 9, 1984.                                               (5), (6)(a), .40B, F(4) through (7); M.C.A.
                                                                 Sec. Sec.  7-504(a), (c), 7-505.1(e), 7-
                                                                 506(c)(3), (h), 7-507(c)(2), 7-511(a), (b), 7-
                                                                 514.6.
January 14, 1986, May 15, 1986.......  December 12, 1986......  COMAR 08.13.09.07A, B, C, G(2), (5)(a), (k);
                                                                 M.C.A. Sec. Sec.  7-504(D), 7-505(g), 7-
                                                                 506(c), 7-507(c)(1), 7-514(C).

[[Page 554]]

 
March 18, 1986, April 23, 1986.......  January 30, 1987.......  COMAR 08.13.09.01B(14), .03, G, H, .28, E.
July 8, 1987, June 10, 1988..........  June 5, 1990...........  M.C.A. Sec. Sec.  7-505(a), (b)(2)(iii),
                                                                 (c)(1), (2), (d)(1), I, II, III, (2); 7-506;
                                                                 Sec.  2; 7-511(A), (B); 7-513; 7-514(a); 7-
                                                                 517(D).
March 30, 1989.......................  January 11, 1991.......  COMAR 08.13.09.01, .02, .13, .17, .28, .31
                                                                 through .34, .42, .43.
June 15, 1989........................  March 21, 1991.........  M.C.A. Sec. Sec.  7-5A-05(c), (d); 7-5A-05.1;
                                                                 7-5A-13(c), (d); 7-5A-13.2; 7-203(H); 7-205(B),
                                                                 (C); 7-501(n); 7-505(c), (d), (k); 7-507(a),
                                                                 (b), (c)(3); 7-509(A); 7-510(b); 7-514(d).
September 28, 1990, November 21, 1990  April 26, 1991.........  COMAR 08.13.09.06, B, .43K(7), N(7).
March 27, 1989.......................  May 22, 1991...........  COMAR 08.13.09.01, .02, .04, .05, .08, .10, .11,
                                                                 .26, .40.
March 23, 1990.......................  June 21, 1991..........  COMAR 08.13.09.02, .05, .10, .11.
October 31, 1989.....................  August 9, 1991.........  COMAR 08.13.09.01B, .02K, O, .23D, E, I, J,
                                                                 .24A, C, D, F, H, I, .35A, C through G, .41, B
                                                                 through G.
December 6, 1990.....................  December 2, 1991.......  COMAR 08.13.09.01B(59), .02H, i, i(1), (3), (4),
                                                                 (5), (11), .04L(2) through (6), M(1), (3),
                                                                 .05D(9), E, F, .40G(10).
June 10, 1988, June 14, 1989, June     December 5, 1991.......  COMAR 08.13.09.15A through F, H, I, (2)(b), (4),
 15, 1989.                                                       (a), (b), J, L, M; M.C.A. Sec. Sec.  7-507.1,
                                                                 7-514, .1, .2, 7-519, 7-5A-05.2, 7-5A-09(c), 7-
                                                                 5A-10(d).
May 7, 1991, May 16, 1991............  January 10, 1992.......  COMAR 08.13.09.43A, B(1), (e), (3) through (6),
                                                                 K(7), (8), N(7).
January 23, 1992.....................  September 24, 1992.....  COMAR 08.13.09.03D(7), .11G(7), .33C(1).
June 11, 1992........................  November 16, 1992......  M.C.A. Sec. Sec.  7-101(k), 7-501(o), 7-5A-
                                                                 01(h).
July 14, 1992........................  December 17, 1992......  M.C.A. Sec. Sec.  7-205(b)(2), (c); 7-206; 7-
                                                                 505(a), (c), (d), (5), (f), (j).
June 23, 1992........................  December 30, 1992......  M.C.A. Sec.  7-508(b)(2).
October 21, 1992.....................  May 17, 1993...........  COMAR 08.13.09.24B.
February 23, 1993....................  June 17, 1993..........  COMAR 08.13.02.01(B), (E), (M), .02A, C(2),
                                                                 .03E, J, M, .04B, C, .06, .07A, B, .08, .09,
                                                                 .10, A, B.
February 7, 1992.....................  June 22, 1993..........  COMAR 08.13.09.23E, .24H, I, .41C.
February 5, 1993.....................  July 6, 1993...........  COMAR 08.13.09. 04B(3)(c), (4), C(2)(e), G(4),
                                                                 (5), (6), H(1), (2)(b), I, (1), J(1), (a), (2)
                                                                 through (5), (7), L, .27A, B, (8), (13), (14),
                                                                 (15), D; 08.20.04. 02C, D, .03B(5), .07D, E, F,
                                                                 .08A, B(2), .09, .10A, .11, A, (1), B, D
                                                                 through G, .13; 08.20.23.01A, B, (8), (13),
                                                                 (14) (15), D.
February 25, 1994....................  June 30, 1994..........  COMAR 08.13.02.01 through .05, .07, .11 through
                                                                 .15; 08.20.02.18; 08.20.13.01, .03(C), (D),
                                                                 .04(D), .10(D), .11, .12; 08.20.14.13(A), (C),
                                                                 (E).
May 16, 1994, May 31, 1994...........  November 14, 1994......  M.C.A. Sec. Sec.  7-501(o), (v); 7-504 (b)
                                                                 through (d); 7-517.1; COMAR 08.13.09.24H(1)(q),
                                                                 (3)(c).
June 16, 1995........................  November 9, 1995.......  M.C.A. Sec. Sec.  7-505, Code 7-515; COMAR
                                                                 08.20.16.02A, .03A, .08A, B.
October 26, 1995.....................  March 25, 1996.........  M.C.A. Sec. Sec.  7-501(m), (w); 7-505(1)(2);
                                                                 7-511(b)(2)(I), (II), (III); COMAR 08.20.14.14.
August 5, 1996.......................  March 26, 1997.........  M.C.A. Sec. Sec.  15-514(a)(4), 15-514.1.
January 7, 1997......................  March 23, 1998.........  COMAR 26.20.26.05 A (1) through (5), B (1)
                                                                 through (4), C (1) through (5), D (1) through
                                                                 (3), E, 26.20.14.06 B(3), B(4), B(8),
                                                                 26.20.14.09 B(2) (b), (c), (d), and (e).
October 9, 1997......................  April 20, 1998.........  COMMAR 26.20.01.02B(49), 26.20.14.05 B, C & D,
                                                                 26.20.14.08.D.(2) through (4),
                                                                 26.20.29.07.B(8), B(9) and (C), deletion of
                                                                 08.20.14.14.
March 6, 1997........................  May 13, 1998...........  COMAR 26.20.14.01B, 26.20.14.03, 26.20.14.04,
                                                                 Actuarial Study.
August 25, 1998......................  April 13, 1999.........  COMAR 26.20.34.06G, 26.20.34.09G, deletion of
                                                                 26.20.06.02.
August 22, 1997......................  July 8, 1999...........  Chapter 223, 1997 Laws of Maryland, Section 15-
                                                                 204(a)(4).
May 27, 1999.........................  November 22, 1999......  COMAR 26.20.01.02B(82), 26.20.02.13 BB(1)
                                                                 through BB(8 )&CC, 26.20.19.01A through G,
                                                                 26.20.19.02 A, B&C, 26.20.19.03 A&D,
                                                                 26.20.19.04 A(1) through (4)&C, 26.20.19.06D,
                                                                 26.20.19.07(1) through (6).
July 10, 2000........................  November 8, 2000.......  COMAR 26.20.12.02 B(1)(a) revision to the
                                                                 definition of ``government-financed
                                                                 contruction.'' COMAR 26.20.12.04, Addition of
                                                                 subsection 04, ``Government Funded Reclamation
                                                                 Projects.''
April 11, 2000.......................  June 18, 2001..........  COMAR 26.20.01.02B(72-1), 26.20.02.01C and D,
                                                                 26.20.02.13M, 26.20.03.05I(5), 26.20.14.09A(5),
                                                                 26.20.31.02H, I, J,& K.
May 7, 2001..........................  October 5, 2001........  Section 15-204 (4)(5) of the Annotated Code of
                                                                 the Public General Laws of Maryland,
                                                                 Environment.
October 22, 2002.....................  April 29, 2003.........  COMAR 26.20.01.02 (51-1), (81-1);
                                                                 26.20.02.15B,C,D; 26.20.02.16E;
                                                                 26.20.13.05A,B,C,D; 26.20.13.07A,B,C,D,E;
                                                                 26.20.13.09D; 26.20.14.13D.
November 25, 2002....................  July 17, 2003..........  COMAR 26.20.02.13 U, V(1) and (3), AA(1);
                                                                 26.20.21.01-1; 26.20.21.08 A(1) through (3),
                                                                 B(1) and (2), C, D(2), E(3); 26.20.21.09D(1).
September 16, 2003...................  March 11, 2004.........  COMAR 26.20.03.07.A, B; 26.20.03.11;
                                                                 26.20.05.01, A, B, C, and L; and 26.20.25.02.D.
January 7, 2004......................  June 17, 2004..........  M.C.A. Section 15-505(d)(6), (d)(7)(i)1.,
                                                                 (d)(7)(i)2., (d)(7)(i)2.A., (d)(7)(i)2.B., and
                                                                 (d)(7)(iii).
May 4, 2004..........................  September 14, 2004.....  COMAR 26.20.10.01B(7)(a) and (b), 01-1, 02, 02C,
                                                                 03A, B, C, D(2) and H, 04, 05, 06, and 07.
January 29, 2007.....................  June 15, 2007..........  MAC 15-517(c); 15-517(d)(1); and 15-517(e).
----------------------------------------------------------------------------------------------------------------


[[Page 555]]


[62 FR 9944, Mar. 5, 1997, as amended at 62 FR 14308, Mar. 26, 1997; 62 
FR 32687, June 17, 1997; 63 FR 13784, Mar. 23, 1998; 63 FR 19406, Apr. 
20, 1998; 63 FR 26453, May 13, 1998; 64 FR 17980, Apr. 13, 1999; 64 FR 
36785, July 8, 1999; 64 FR 63688, Nov. 22, 1999; 65 FR 66931, Nov. 8, 
2000; 65 FR 78416, Dec. 15, 2000; 66 FR 32746, June 18, 2001; 66 FR 
50829, Oct. 5, 2001; 68 FR 22604, Apr. 29, 2003; 68 FR 42281, July 17, 
2003; 69 FR 11515, Mar. 11, 2004; 69 FR 33850, June 17, 2004; 69 FR 
55355, Sept. 14, 2004; 72 FR 33155, June 15, 2007]



Sec. 920.16  Required program amendments.

    Pursuant to 30 CFR 732.17, Maryland is required to submit for 
OSMRE's approval the following proposed program amendments by the dates 
specified.
    (a)-(o) [Reserved]

[51 FR 44790, Dec. 12, 1986, as amended at 56 FR 19282, Apr. 26, 1991; 
56 FR 37851, Aug. 9, 1991; 56 FR 63659, Dec. 5, 1991; 57 FR 62222, Dec. 
30, 1992; 58 FR 33912, June 22, 1993; 63 FR 13784, Mar. 23, 1998; 63 FR 
26454, May 13, 1998; 64 FR 17980, Apr. 13, 1999; 64 FR 36786, July 8, 
1999; 66 FR 50829, Oct. 5, 2001]



Sec. 920.20  Approval of Maryland abandoned mine plan.

    The Maryland Abandoned Mine Plan, as submitted on March 8, 1982, is 
approved. Copies of the approved program are available at the following 
locations:
    (a) Office of Surface Mining Reclamation and Enforcement, Harrisburg 
Field Office, Harrisburg Transportation Center, Third Floor, Suite 3C, 
Fourth and Market Streets, Harrisburg, Pennsylvania 17101.
    (b) Maryland Department of Natural Resources, Water Resources 
Administration, Bureau of Mines, 160 South Water Street, Frostburg, 
Maryland 21532.

[59 FR 17929, Apr. 15, 1994]



Sec. 920.25  Approval of Maryland abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
September 4, 1992....................  March 22, 1993.........  Chapters 1, 5, 11 of Plan--Expenditure of Funds.
August 19, 1993......................  December 9, 1994.......  Chapter 1 of Plan--Project Ranking & Selection.
----------------------------------------------------------------------------------------------------------------


[62 FR 9945, Mar. 5, 1997]



PART 921_MASSACHUSETTS--Table of Contents



Sec.
921.700 Massachusetts Federal program.
921.701 General.
921.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
921.707 Exemption for coal extraction incident to Government-financed 
          highway or other construction.
921.761 Areas designated unsuitable for surface coal mining by Act of 
          Congress.
921.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
921.764 Process for designating areas unsuitable for surface coal mining 
          operations.
921.772 Requirements for coal exploration.
921.773 Requirements for permits and permit processing.
921.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
921.775 Administrative and judicial review of decisions.
921.777 General content requirements for permit applications.
921.778 Permit applications--minimum requirements for legal, financial, 
          compliance, and related information.
921.779 Surface mining permit applications--minimum requirements for 
          information on environmental resources.
921.780 Surface mining permit applications--minimum requirements for 
          reclamation and operation plan.
921.783 Underground mining permit applications--minimum requirements for 
          information on environmental resources.

[[Page 556]]

921.784 Underground mining permit applications--minimum requirements for 
          reclamation and operation plan.
921.785 Requirements for permits for special categories of mining.
921.795 Small operator assistance.
921.800 General requirements for bonding of surface coal mining and 
          reclamation operations.
921.815 Performance standards--coal exploration.
921.816 Performance standards--surface mining activities.
921.817 Performance standards--underground mining activities.
921.819 Special performance standards--auger mining.
921.823 Special performance standards--operations on prime farmland.
921.824 Special performance standards--mountaintop removal.
921.827 Special performance standards--coal processing plants and 
          support facilities not located at or near the minesite or not 
          within the permit area for a mine.
921.828 Special performance standards--in situ processing.
921.842 Federal inspections.
921.843 Federal enforcement.
921.845 Civil penalties.
921.846 Individual civil penalties.
921.955 Certification of blasters.

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

    Source: 48 FR 41004, Sept. 12, 1983, unless otherwise noted.



Sec. 921.700  Massachusetts Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in Massachusetts which have been adopted under the 
Surface Mining Control and Reclamation Act of 1977.
    (b) The rules in this part cross-reference pertinent parts of the 
permanent program regulations in this chapter. The full text of a rule 
is in the permanent program rule cited under the relevant section of the 
Massachusetts Federal program.
    (c) The rules in this part apply to all surface coal mining 
operations in Massachusetts conducted on non-Federal and non-Indian 
lands. The rules in Subchapter D of this chapter apply to operations on 
Federal lands in Massachusetts.
    (d) The recordkeeping and reporting requirements of this part are 
the same as those of the permanent program regulations which have been 
approved by the Office of Management and Budget under 44 U.S.C. 3507.
    (e) There are no Massachusetts laws which provide more stringent 
environmental control and regulation of surface coal mining operations 
than do the provisions of the Surface Mining and Reclamation Act and the 
regulations in 30 CFR chapter VII.
    (f) The following are Massachusetts laws that interfere with the 
achievement of the purposes and requirements of the Act and are, in 
accordance with section 504(g) of the Act, preempted and superseded 
insofar as they apply to surface coal mining operations regulated under 
the Act:
    (1) The Coal Mining Regulatory and Reclamation Act of 1977, as 
amended, Mass. Ann. Laws. Ch. 21B, Sections 1-15.
    (2) Statutes governing licenses for minerals exploration, Mass. Ann. 
Laws Ch. 21, section 54-56.
    (g) The Secretary may grant a limited variance from the performance 
standards of Sec. Sec. 921.815 through 921.828 of this part if the 
applicant for coal exploration approval or a surface mining permit 
submitted pursuant to Sec. Sec. 921.772 through 921.785 demonstrates in 
the application that:
    (1) Such a variance is necessary because of the nature of 
Massachusetts' terrain, climate, biological, chemical or other relevant 
physical conditions; and
    (2) The proposed variance is not less effective than the 
environmental protection requirements of the regulations in this program 
and is consistent with the Act.

[48 FR 41004, Sept. 12, 1983, as amended at 52 FR 13808, Apr. 24, 1987]



Sec. 921.701  General.

    Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15, and part 701 
of this chapter shall apply to surface coal mining and reclamation 
operations in Massachusetts.



Sec. 921.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of the chapter, Exemption for Coal Extraction Incidental to 
the Extraction of Other Minerals, shall apply to

[[Page 557]]

any person who conducts coal extraction incidental to the extraction of 
other minerals for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]



Sec. 921.707  Exemption for coal extraction incident to Government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 921.761  Areas designated unsuitable for surface coal mining by Act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply to surface coal mining and reclamation operations.



Sec. 921.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface coal mine 
operations.



Sec. 921.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to 
petitioning, initial processing, hearing requirements, decisions, data 
base and inventory systems, public information, and regulatory 
responsibilities, are applicable in Massachusetts beginning on May 28 
1983.



Sec. 921.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.

[52 FR 13809, Apr. 24, 1987]



Sec. 921.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
applications to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
applicant of the findings;
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and negotiate the 
date by which the information must be submitted; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 921.773(b)(2)(ii) by the specified date, the Office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the application is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required by Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with actual site conditions. The applicant will be notified 
in advance of the time of the visit. At the time of the visit, the 
applicant shall have the locations of the proposed permit boundaries, 
topsoil storage areas, sediment control

[[Page 558]]

structures, roads, and other significant features contained in the 
application marked by flags.
    (c) In addition to the information required by subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) No person shall conduct coal exploration which results in the 
removal of more than 250 tons of coal nor shall any person conduct 
surface coal mining operations without a permit issued by the Secretary 
pursuant to 30 CFR part 773 and applicable permits issued pursuant to 
the laws of the State of Massachusetts, including: The Historic and 
Scenic Rivers Act, Mass. Ann. Laws Ch. 21, sections 8-17B; Massachusetts 
Register of Historic Places, Mass. Ann. Laws Ch. 152 and the regulations 
(950 CMR 71); Historical Preservation Statutes, Mass. Ann. Laws Ch. 9, 
sections 26-27(D); real property statutes. Mass Ann. Laws Ch. 184, 
sections 31-32; statutes governing State forests and parks, Mass. Ann. 
Laws Ch. 132, sections 40-46; of the Wetlands Protection Act Ch. 131, 
sections 40-46; statutes and rules governing dredging permits, Mass. 
Ann. Laws Ch. 21A; section 14, 310 CMR 9.01 et seq.; the Massachusetts 
Hazardous Waste Management Act Ch. 21C, sections 1-14; the Massachusetts 
Clean Water Act Ch. 21, sections 26-53; statutes governing the 
construction of roads, drains, or ditches, Mass. Ann. Laws Ch. 252, 
Sections 15-18; statutes governing drilling or removal of sand or any 
minerals, Mass. Ann. Laws Ch. 132A, Sections 13-181 and statutes 
governing use, storage, and handling of explosives, Mass. Ann. Laws Ch. 
148, Sections 9-19.
    (e) The Secretary shall provide for coordination of review and 
issuance of a coal exploration or surface coal mining and reclamation 
permit with the review and issuance of other Federal and State permits 
listed in this subpartand part 773 of this chapter.

[52 FR 13809, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 921.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved permit will be subject to review 
and approval by OSMRE.
    (1) Significant revisions shall be processed as if they are new 
applications in accordance with the public notice and hearing provisions 
of Sec. Sec. 773.6, 773.19(b) (1) and (2), and 778.21 and of part 775.
    (2) OSMRE shall make every effort to approve or disapprove an 
application for permit revision within 60 days of receipt or such longer 
time as may be reasonable under the circumstances. If additional time is 
needed, OSMRE shall notify the applicant that the application is being 
reviewed, but that more time is necessary to complete such review, 
setting forth the reasons and the additional time that is needed.
    (c) In addition to the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 
thirty days of either the publication of the newspaper advertisement 
required by Sec. 774.17(b)(2) of this chapter or receipt of an 
administratively complete application, whichever is later.

[52 FR 13809, Apr. 24, 1987, as amended at 65 FR 79672 Dec. 19, 2000]



Sec. 921.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.

[52 FR 13809, Apr. 24, 1987]

[[Page 559]]



Sec. 921.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
Applications, shall apply to any person who applies for a permit to 
conduct surface coal mining and reclamation operations.

[52 FR 13809, Apr. 24, 1987]



Sec. 921.778  Permit applications--minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance and Related Information, shall apply to 
any person who applies for a permit to conduct surface coal mining and 
reclamation operations.

[52 FR 13809, Apr. 24, 1987]



Sec. 921.779  Surface mining permit applications--minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface coal mining 
and reclamation operations.



Sec. 921.780  Surface mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations.



Sec. 921.783  Underground mining permit applications--minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who submits an application to conduct underground 
coal mining and reclamation operations.



Sec. 921.784  Underground mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct underground coal mining 
operations.



Sec. 921.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.



Sec. 921.795  Small operator assistance.

    Part 795 of this chapter, Small Operator Assistance, shall apply to 
any person making application for assistance under the small operator 
assistance program.



Sec. 921.800  General requirements for bonding of surface coal mining and 

reclamation operations.

    Part 800 of this chapter, General Requirements for Bonding of 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, shall apply to all surface coal mining and reclamation 
operations.



Sec. 921.815  Performance standards--coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person conducting coal exploration 
operations.



Sec. 921.816  Performance standards--surface mining activities.

    Part 816 of this chapter, Permanent Program Performance Standards--
Surface Mining Activities, shall apply to any person who conducts 
surface coal mining and reclamation operations.



Sec. 921.817  Performance standards--underground mining activities.

    Part 817 of this chapter, Permanent Program Performance Standards--
Underground Mining Activities, shall apply to

[[Page 560]]

any person who conducts underground coal mining operations.



Sec. 921.819  Special performance standards--auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 921.823  Special performance standards--operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmlands.



Sec. 921.824  Special performance standards--mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface coal mining operations constituting mountaintop removal mining.



Sec. 921.827  Special performance standards--coal processing plants and 

support facilities not located at or near the minesite or not within the 

permit area for a mine.

    Part 827 of this chapter, Special Permanent Program Performance 
Standards--Coal Processing Plants and Support Facilities Not Located at 
or Near the Minesite or Not Within the Permit Area for a Mine, shall 
apply to any person who conducts surface coal mining and reclamation 
operations which includes the operation of coal processing plants and 
support facilities not located at or near the minesite or not within the 
permit area for a mine.



Sec. 921.828  Special performance standards--in situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts in 
situ processing activities.



Sec. 921.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all exploration and surface coal mining and reclamation operations.
    (b) The Secretary will furnish copies of inspection reports and 
reports of any enforcement actions taken to the Massachusetts Department 
of Environmental Management upon request.



Sec. 921.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall apply when 
enforcement action is required for violations on exploration and surface 
coal mining and reclamation operations.
    (b) The Office will furnish a copy of any enforcement document to 
the Massachusetts Department of Environmental Management upon request.



Sec. 921.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply when civil 
penalties are assessed for violations on surface coal mining and 
reclamation operations.



Sec. 921.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 921.955  Certification of blasters.

    Parts 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19462, May 29, 1986]



PART 922_MICHIGAN--Table of Contents



Sec.
922.700 Michigan Federal program.
922.701 General.
922.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
922.707 Exemption for coal extraction incident to government-financed 
          highway or other construction.
922.761 Areas designated unsuitable for surface coal mining by act of 
          Congress.
922.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.

[[Page 561]]

922.764 Process for designating areas unsuitable for surface coal mining 
          operations.
922.772 Requirements for coal exploration.
922.773 Requirements for permits and permit processing.
922.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
922.775 Administrative and judicial review of decisions.
922.777 General content requirements for permit applications.
922.778 Permit applications--minimum requirements for legal, financial, 
          compliance, and related information.
922.779 Surface mining permit applications--minimum requirements for 
          information on environmental resources.
922.780 Surface mining permit applications--minimum requirements for 
          reclamation and operation plan.
922.783 Underground mining permit applications--minimum requirements for 
          information on environmental resources.
922.784 Underground mining permit applications--minimum requirements for 
          reclamation and operation plan.
922.785 Requirements for permits for special categories of mining.
922.795 Small operator assistance.
922.800 General requirements for bonding of surface coal mining and 
          reclamation operations.
922.815 Performance standards--coal exploration.
922.816 Performance standards--surface mining activities.
922.817 Performance standards--underground mining activities.
922.819 Special performance standards--auger mining.
922.823 Special performance standards--operations on prime farmland.
922.824 Special performance standards--mountaintop removal.
922.827 Special performance standards--coal processing plants and 
          support facilities not located at or near the minesite or not 
          within the permit area for a mine.
922.828 Special performance standards--in situ processing.
922.842 Federal inspections.
922.843 Federal enforcement.
922.845 Civil penalties.
922.846 Individual civil penalties.
922.955 Certification of blasters.

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

    Source: 47 FR 47162, Oct. 22, 1982, unless otherwise noted.



Sec. 922.700  Michigan Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in Michigan which have been adopted under the Surface 
Mining Control and Reclamation Act of 1977.
    (b) The rules in this part cross-reference pertinent parts of the 
permanent program regulations in this chapter. The full text of a rule 
is in the permanent program rule cited under the relevant section of the 
Michigan Federal program.
    (c) The rules in this part apply to all surface coal mining 
operations in Michigan conducted on non-Federal and non-Indian lands. 
The rules in Subchapter D of this chapter apply to operations on Federal 
lands in Michigan.
    (d) The information collection requirements contained in this part 
do not require approval by the Office of Management and Budget under 44 
U.S.C. 3507 because there are fewer than ten respondents annually.
    (e) The following provisions of Michigan laws provide, where 
applicable, for more stringent environmental control and regulation of 
surface coal mining operations than do the provisions of the Act and the 
regulations in this chapter. Therefore, pursuant to section 505(b) of 
the Act, they shall not be construed to be inconsistent with the Act:
    (1) The Michigan Reclamation of Mining Lands, Act 92 (1970), MCL 
section 425.181 et seq. as amended, to the extent that it regulates 
surface coal mining operations which affect two acres or less; or where 
less than 250 tons of coal are removed or intended to be removed for 
commercial use or sale in one location or; or where the extraction of 
coal is incidental to the extraction of other minerals and where coal 
does not exceed 16\2/3\ per centum of the tonnage of minerals removed 
for purposes of commercial use or sale; or coal explorations subject to 
section 512 of the Act (30 U.S.C. 1262) or; where the extraction of coal 
is an incidental part of Federal, State, or local government-financed 
highway or other construction.
    (2) Michigan Farmland and Open Space Preservation Act, MCL section 
554.701, pertaining to land use restrictions including mineral 
extraction.
    (3) Michigan Solid Waste Regulations pertaining to solid waste 
management, MCL section 299.401, R-325.3231.
    (4) Michigan noxious weed statute and regulations containing the 
noxious weed list, MCL section 243.61.

[[Page 562]]

    (f) The following are Michigan laws that interfere with the 
achievement of the purposes and requirements of the Act and are, in 
accordance with section 504(g) of the Act, preempted and superseded:
    The Michigan Reclamation of Mining Lands Act, MCL section 425.181 et 
seq. as amended, but not to the extent that it regulates surface coal 
mining operations which affect two acres or less; or where less than 250 
tons of coal are removed or intended to be removed for commercial use in 
one location; or where the extraction of coal is incidental to the 
extraction of other minerals and where coal does not exceed 16\2/3\ per 
centum of the tonnage of minerals removed for purposes of commercial use 
or sale; or coal explorations subject to section 512 of the Act (30 
U.S.C. 1262); or where the extraction of coal is an incidental part of 
Federal, State, or local government-financed highway or other 
construction.

[47 FR 47162, Oct. 22, 1982, as amended at 52 FR 13810, Apr. 24, 1987]



Sec. 922.701  General.

    Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and part 701 
of this chapter shall apply to surface coal mining operations in 
Michigan.



Sec. 922.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of other minerals 
for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]



Sec. 922.707  Exemption for coal extraction incident to government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 922.761  Areas designated unsuitable for surface coal mining by act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply to surface coal mining and reclamation operations.



Sec. 922.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface coal mine 
operations beginning May 28, 1983.



Sec. 922.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to 
petitioning, initial processing, hearing requirements, decisions, data 
base and inventory systems, public information, and regulatory 
responsibilities shall apply to surface coal mine operations beginning 
one year after May 28, 1983.



Sec. 922.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
that more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.

[52 FR 13810, Apr. 24, 1987]



Sec. 922.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.

[[Page 563]]

    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
applicant of the findings;
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and negotiate the 
date by which the information must be submitted; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 912.773(b)(2)(ii) by the specified date, the office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the application is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required by Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with actual site conditions. The applicant will be notified 
in advance of the time of the visit. At the time of the visit, the 
applicant shall have the locations of the proposed permit boundaries, 
topsoil storage areas, sediment control structures, roads, and other 
significant features contained in the application marked by flags.
    (c) In addition to the information required by subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) Where applicable, no person shall conduct surface coal 
exploration operations which result in the removal of more than 250 tons 
in one location, or surface coal mining operations without permits 
issued pursuant to the: Michigan Construction and Maintenance Act, MCL 
section 254.25, pertaining to the alteration of watercourses; Michigan 
Dams in Streams or Rivers Act of 1963, MCL section 281.131; Michigan 
Explosives Act of 1970, MCL section 29.41, pertaining to the use of 
explosives (permit is issued by an officer of a local police or 
sheriff's department or a designated officer of the State police); 
Michigan Hazardous Waste; Management Act of 1980, MCL section 299.501; 
Michigan Inland Lake and Streams Act of 1972, MCL section 281. 951; 
Michigan Mineral Wells Act of 1969, MCL section 319.211; Michigan Sand 
Dune Protection and Management Act of 1976, MCL section 281.651; 
Michigan Solid Waste Management Act of 1978, MCL section 299.401; 
Michigan Water Resources Commission Act, MCL section 323.1; Michigan 
Water Resources Commission General Rules, R-323.1001 et seq.; Michigan 
Water Quality Standards, R-323.1041; the Michigan Wetland Protection Act 
of 1969, MCL section 281.701; Michigan Aboriginal Records and 
Antiquities Act, MCL section 299.51; Michigan Great Lakes Submerged 
Lands Act, MCL section 322.701 and the Michigan Historical Activities 
Act, MCL section 399.201.
    (e) The Secretary shall provide for the coordination of review and 
issuance of permits for surface mining and reclamation operations with 
applicable requirements of the Michigan Air Pollution Act of 1965, MCL 
section 336.11 and the Michigan Administrative Rules for Air Pollution 
Control, R-336.1101 et seq.; the Michigan Control and Eradication of 
Noxious Weeds Act, MCL section 247.61; the Michigan Endangered Species 
Act of 1974, MCL section 299.221 and the Michigan Hazardous Waste 
Management Act of 1980. The Secretary shall further coordinate review of 
permits, where applicable, with the appropriate State agencies 
concerning compliance with the Michigan Farmland and Open Space 
Preservation Act, MCL section 554.71.

[52 FR 13810, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]

[[Page 564]]



Sec. 922.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved permit will be subject to review 
and approval by OSMRE.
    (1) Significant revisions shall be processed as if they are new 
applications in accordance with the public notice and hearing provisions 
of Sec. Sec. 773.6, 773.19(b) (1) and (2), and 778.21 and of part 775.
    (2) OSMRE shall make every effort to approve or disapprove an 
application for permit revision within 60 days of receipt or such longer 
time as may be reasonable under the circumstances. If additional time is 
needed, OSMRE shall notify the applicant that the application is being 
reviewed, but more time is necessary to complete such review, setting 
forth the reasons and the additional time that is needed.
    (c) In addition the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 
thirty days of either the publication of the newspaper advertisement 
required by Sec. 774.17(b)(2) of this chapter or receipt of an 
administratively complete application, whichever is later.

[52 FR 13810, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 922.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial review of 
Decisions, shall apply to all decisions on permits.

[52 FR 13811, Apr. 24, 1987]



Sec. 922.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
Applications, shall apply to any person who applies for a permit to 
conduct surface coal mining and reclamation operations.

[52 FR 13811, Apr. 24, 1987]



Sec. 922.778  Permit applications--minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance, and Related Information, shall apply 
to any person who applies for a permit to conduct surface coal mining 
and reclamation operations.

[52 FR 13811, Apr. 24, 1987]



Sec. 922.779  Surface mining permit applications--minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface mining and 
reclamation operations.



Sec. 922.780  Surface mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations on non-Federal and non-Indian lands.



Sec. 922.783  Underground mining permit applications--minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who submits an application to conduct underground 
mining operations.

[[Page 565]]



Sec. 922.784  Underground mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct underground mining.



Sec. 922.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Catergories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.



Sec. 922.795  Small operator assistance.

    Part 795 of this chapter, Small Operator Assistance, shall apply to 
any person making application for assistance under the small operator 
assistance program.



Sec. 922.800  General requirements for bonding of surface coal mining and 

reclamation operations.

    Part 800 of this chapter, General Requirements for Bonding of 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, shall apply to all surface coal mining and reclamation 
operations.



Sec. 922.815  Performance standards--coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person conducting coal exploration 
operations.



Sec. 922.816  Performance standards--surface mining activities.

    Part 816 of this chapter, Permanent Program Performance Standards--
Surface Mining Activities, shall apply to any person who conducts 
surface coal mining and reclamation operations.



Sec. 922.817  Performance standards--underground mining activities.

    Part 817 of this chapter, Permanent Program Performance Standards--
Underground Mining Activities, shall apply to any person who conducts 
underground mining operations.



Sec. 922.819  Special performance standards--auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 922.823  Special performance standards--operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmlands.



Sec. 922.824  Special performance standards--mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface coal mining operations constituting mountaintop removal mining.



Sec. 922.827  Special performance standards--coal processing plants and 

support facilities not located at or near the minesite or not within the 

permit area for a mine.

    Part 827 of this chapter, Special Permanent Program Performance 
Standards--Coal Processing Plants and Support Facilities not Located at 
or near the Minesite or not within the Permit Area for a Mine, shall 
apply to any person who conducts surface coal mining and reclamation 
operations which include the operation of coal processing plants and 
support facilities not located at or near the minesite and not within 
the permit area for a mine.



Sec. 922.828  Special performance standards--in situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts in 
situ processing activities.

[[Page 566]]



Sec. 922.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all exploration and surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 842, the Secretary will 
furnish a copy of each inspection report regarding inspections conducted 
pursuant to this subpartto the Michigan Department of Natural Resources 
upon request.



Sec. 922.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall apply when 
enforcement action is required for violations on surface coal mining and 
reclamation operations.
    (b) The Office will furnish a copy of each enforcement action 
document and order to show cause issued pursuant to this subpart to the 
Michigan Department of Natural Resources, Geological Survey Division 
upon request.



Sec. 922.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply when civil 
penalties are assessed for violations on surface coal mining and 
reclamation operations.



Sec. 922.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 922.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19462, May 29, 1986]



PART 924_MISSISSIPPI--Table of Contents



Sec.
924.1 Scope.
924.10 State program approval.
924.15 Approval of Mississippi regulatory program amendments.
924.16 Required program amendments.
924.17 State regulatory program provisions and amendments not approved.
924.20 Approval of Mississippi abandoned mine land reclamation plans.

    Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.).



Sec. 924.1  Scope.

    This part contains all rules applicable only within the State of 
Mississippi which have been adopted under the Surface Mining Control and 
Reclamation Act of 1977.

[45 FR 58525, Sept. 4, 1980]



Sec. 924.10  State program approval.

    (a) The Mississippi State program, as submitted on August 2, 1979, 
and resubmitted on May 27, 1980, is approved, effective September 4, 
1980. Copies of the approved program are available at:
    (1) Mississippi Department of Environmental Quality, Office of 
Geology, Southport Center, 2380 Highway 80 West, Jackson, Mississippi 
39289-1307. Telephone (601) 961-5530.
    (2) Office of Surface Mining Reclamation and Enforcement, Birmingham 
Field Office, 135 Gemini Circle, Birmingham, Alabama 34209. Telephone 
(205) 290-7282.
    (b) [Reserved]

[45 FR 58525, Sept. 4, 1980, as amended at 59 FR 17930, Apr. 15, 1994; 
63 FR 43320, Aug. 13, 1998]



Sec. 924.15  Approval of Mississippi regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

[[Page 567]]



----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
May 6, 1997..........................  January 9, 1998........  MSCMRL 53-9-3; 5; 7; 9; 11; 13; 15; 17; 19; 21;
                                                                 23; 25; 26; 27; 28; 29; 31; 32; 33; 35; 37; 39;
                                                                 41; 43; 45; 47; 49; 51; 53; 55; 57; 59; 61; 63;
                                                                 65; 67; 69; 71; 73; 75; 77; 79; 81; 83; 85; 87;
                                                                 89; 91.
March 26, 1998.......................  June 25, 1998..........  MSCMRL 53-9-26; 45(4)(b); 69(1)(c)(i) and (4);
                                                                 77(5).
March 26, 1998.......................  August 13, 1998........  Subpart I, Chapters 1 through 7; subpartII,
                                                                 Chapters 9 through 15; subpartIII, Chapters 17
                                                                 through 37; subpartIV, Chapters 39 through 47;
                                                                 subpartV, Chapters 49 through 71; Policy
                                                                 Statement No. PS-1.
July 1, 1999.........................  October 26, 1999.......  Sections 105; 407; 413; 1105 (c)-(d); 2103;
                                                                 2105; 2313; 3113; 3119; 3121; 3301(b); 3509;
                                                                 3713; 4301; 4303(g)(6); 4501(c); 4701(a);
                                                                 5333(b)(3)(A); 5349; 5359; 5377; 5391; 5393;
                                                                 53111; 5703; 5903; 6501(c)(4); 6511 (a),
                                                                 (l)(1), & (n)(9).
September 28, 2001...................  December 3, 2002.......  Sections 105; 1103; 1105; 1106; 1107(a), (b),
                                                                 (f), and (h); 2103(b)(14), (c), (d), (e), and
                                                                 (f); 3114; 53103(a) and (b); 53111(a)(4) and
                                                                 (5); 6511(c); and appendix A: Revegetation
                                                                 Success Guidelines
April 5, 2006........................  December 10, 2008......  MSCMR 53-9-71(4) Sections: 105, 1101, and 1105.
----------------------------------------------------------------------------------------------------------------


[63 FR 1361, Jan 9, 1998, as amended at 63 FR 34599, June 25, 1998; 63 
FR 43320, Aug. 13, 1998; 64 FR 57570, Oct. 26, 1999; 67 FR 71831, Dec. 
3, 2002; 73 FR 74945, Dec. 10, 2008]



Sec. 924.16  Required program amendments.

    Pursuant to 30 CFR 732.17(f)(1), Mississippi is required to submit 
to OSM by the specified date the following written, proposed program 
amendments, or a description of the amendments to be proposed, that meet 
the requirements of SMCRA and 30 CFR chapter VII and a timetable for 
enactment that is consistent with Mississippi's established 
administrative or legislative procedures.
    (a)-(n) [Reserved]

[63 FR 1362, Jan. 9, 1998, as amended at 63 FR 34599, June 25, 1998; 63 
FR 43321, Aug. 13, 1998; 64 FR 57571, Oct. 26, 1999; 67 FR 71832, Dec. 
3, 2002]



Sec. 924.17  State regulatory program provisions and amendments not approved.

    The proposed language in section 53-9-55(3), as submitted by 
Mississippi on May 6, 1997, that allows the commission to promulgate 
regulations regarding a waiver from the requirement to post a penalty 
payment bond upon a showing by the operator of an inability to post the 
bond is disapproved.

[63 FR 1362, Jan 9, 1998]



Sec. 924.20  Approval of Mississippi abandoned mine land reclamation plans.

    The Mississippi abandoned mine land reclamation plan as submitted on 
April 5, 2006, and June 11, 2007, and as revised is approved. Copies of 
the approved plan are available at:

Office of Surface Mining Reclamation and Enforcement, Birmingham Field 
Office, 135 Gemini Circle, Suite 215, Homewood, Alabama 35209
Mississippi Department of Environmental Quality, Office of Geology, 2380 
Highway 80 West, Jackson, Mississippi 39289-1307

[72 FR 54832, Sept. 27, 2007]



PART 925_MISSOURI--Table of Contents



Sec.
925.1 Scope.
925.10 State regulatory program approval.
925.12 State program provisions and amendments disapproved.
925.15 Approval of Missouri regulatory program amendments.
925.16 Required program amendments.
925.20 Approval of the Missouri abandoned mine land reclamation plan.
925.25 Approval of Missouri abandoned mine land reclamation plan 
          amendments.

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



Sec. 925.1  Scope.

    This part contains all rules applicable only within Missouri that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[45 FR 77027, Nov. 21, 1980]



Sec. 925.10  State regulatory program approval.

    The Secretary approved the Missouri regulatory program, as submitted 
on February 1, 1980, and amended and clarified on May 14, 1980, 
effective November 21, 1980. He fully approved the

[[Page 568]]

Missouri program, as amended on September 7, 1982, and October 13, 1982, 
effective January 17, 1983. Copies of the approved program are available 
at:
    (a) Missouri Department of Natural Resources, Land Reclamation 
Program, 205 Jefferson Street, P.O. Box 176, Jefferson City, MO 65102.
    (b) Office of Surface Mining Reclamation and Enforcement, Mid-
Continent Regional Coordinating Center, Alton Federal Building, 501 
Belle Street, Alton, IL 62002.

[64 FR 20167, Apr. 26, 1999]



Sec. 925.12  State program provisions and amendments disapproved.

    (a) The amendment at 10 CSR 40-4.030(4)(A), submitted on December 14 
and 18, 1987, is disapproved insofar as it would exempt from prime 
farmland performance standards coal preparation plants, support 
facilities, and roads associated with surface coal mining activities.
    (b) The amendment at 10 CSR 40-4.030(4)(B), submitted on December 14 
and 18, 1987, is disapproved insofar as it would exempt from prime 
farmland performance standards water bodies as a postmining land use.
    (c) The definitions of ``coal processing plant'' and ``coal 
preparation plant'' at 10 CSR 40-8.010(1)(A)18, submitted on December 14 
and 18, 1987, are disapproved insofar as they exempt from regulation 
certain facilities where coal is subjected to chemical or physical 
processing or cleaning, concentrating, or other processing or 
preparation, if they do not separate coal from its impurities.
    (d) The amendments at 10 CSR 40-3.040(10)(O)3.C and 40-
3.200(10)(O)3.C, submitted on October 5, 2000, concerning temporary 
impoundment design are disapproved effective May 9, 2001.
    (e) The amendment at 10 CSR 40-3.240, submitted on October 5, 2000, 
concerning air resource protection is disapproved effective May 9, 2001, 
to the extent that it is missing pertinent requirements relating to 
control of erosion and air pollution.
    (f) The amendment at 10 CSR 40-8.070(2)(C)1.A(II)(a), submitted on 
October 5, 2000, concerning the definition of cumulative measurement 
period is disapproved effective May 9, 2001, to the extent that it uses 
October 1, 1990, for determining the end of the period for which 
cumulative production and revenue is reported.

[53 FR 43869, Oct. 31, 1988, as amended at 66 FR 23604, May 9, 2001]



Sec. 925.15  Approval of Missouri regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
December 3, 1980, March 12, 1981.....  July 23, 1982..........  10 CSR 40-2.080; 40-3.050; 40-3.100(4)(B); 40-
                                                                 6.010(6), .070, .090(3), (4)(C); 40-
                                                                 7.030(1)(E), .040(2)(C); 40-8.030(5) through
                                                                 (13)(A).
September 7, 1982, October 13, 1982..  January 17, 1983.......  10 CSR 40-8.030(6)(B)1, (C), (7)(A), (D),
                                                                 (8)(A)1, (E), (9)(A)2, (B), (10)(A), (13)(B),
                                                                 .050(8), .060.
April 13, 1983.......................  May 8, 1984............  RSMo 444: .805, .830, .950, .955, .960, .965,
                                                                 .970; 10 CSR 40-3.120, .270; 40-4.030; 40-
                                                                 7.010, .011, .020, .021, .030, .031, .040,
                                                                 .041, .050; 40-8.030.
March 13, 1986.......................  January 7, 1987........  10 CSR 40-2.090(6); 40-7.031(3)(B); 40-8.030(1),
                                                                 (6), (7), (17), .040(3), (7), (8).
February 4, 1987.....................  February 26, 1988......  10 CSR 40-2.090(5); 40-3.040(2), (6), (17),
                                                                 .110(1), .120(7), .200(2), (16), .270(7); 40-
                                                                 7.011(2), (3), .021(2), .031, .041(1), (2),
                                                                 (3); 40-8.030(6), (18); RSMo 444: .950, .960,
                                                                 .965.
June 22, 1987........................  June 16, 1988..........  10 CSR 40-3.010(6), .050, .110(6), .120(8)(A),
                                                                 (D), .170, .210; 40-6.010(3)(C), (5)(C),
                                                                 .030(2)(C), .050(4), .070(2)(C), (6), (7), (8),
                                                                 .090(4), (6), (9), (10), (11), .100(2)(C); 40-
                                                                 8.040(3).
December 14 and 18, 1987.............  October 31, 1988.......  10 CSR 40-2.090(6)(B); 40-3.050(1)(E),
                                                                 .210(1)(E); 40-4.010, .030(4)(C), (5), (6),
                                                                 (7)(A), (B)(1) through (8); 40-6.010(6)(A),
                                                                 .020, .040(16), .060(1)(E), (G), (J), (K),
                                                                 (4)(B), (C), (D), .110(16); 40-7.021(4)(B); 40-
                                                                 8.010(1)(A)5, 15, 16, 17, 19, 20, 25, 47, 48,
                                                                 92, .030(3)(B), .050, .070(2); RSMo 444.730,
                                                                 .800, .805, .950.
August 3, 1988.......................  December 11, 1989......  10 CSR 40-3.050(1)(C), (D), (2)(F), (3)(B),
                                                                 (5)(B), (D), .210(1)(C), (D), (2)(F), (5)(B),
                                                                 (D), .160; 40-4.030(4), (7)(B)6; 40-
                                                                 6.070(8)(J), (K), (L), (N), (O).

[[Page 569]]

 
July 8, 1988.........................  January 8, 1990........  10 CSR 40-3.200(2)(B); RSMo 444.535.7(2),
                                                                 .815.6(2).
March 18, 1988.......................  June 5, 1990...........  10 CSR 40-3.100(2), .120(1), (6)(A), (6)(B)3,
                                                                 (7)(C)2, .250(1)(B), .270(1), (6)(A), (B)3,
                                                                 (7)(C)2; 40-6.040(3)(B), (11)(B), (C), (D),
                                                                 .050(7)(B), (C), (14)(B), .070(8)(E),
                                                                 .110(3)(B), (11)(B), (C), (D), .120(8)(B),
                                                                 (12)(B), (C), .040(8)(B), (C).
June 5, 1989.........................  July 6, 1990...........  10 CSR 40-6.040(5)(A), (B)1, .050(5)(C), (9)(A)
                                                                 through (E); .060(4)(A), .070(12)(D),
                                                                 .110(11)(B), .120(2)(B)3, (5)(A), (C), (D),
                                                                 (E), (11)(A), (14)(C); 40-8.040(8)(K).
July 21, 1989........................  October 30, 1990.......  10 CSR 40-4.080(1), (2); 40-6.040(11)(E)2, 3,
                                                                 .050(5)(C), .060(2)(B), (C), .070(7)(A)3, 8(M),
                                                                 .120(11); 40-8.010(1)(A)5, 18, .045; 40-
                                                                 060(8)(B).
January 12, 1989.....................  January 3, 1991........  10 CSR 40-3.040(1)(B), (3)(G), (4)(B)3, (6)(B),
                                                                 (H), (7)(A), (B), (10)(A), (E), (G), (J),
                                                                 (13)(A)1, (B)1.C, .060(1)(B), (F), (H), (K),
                                                                 .080(1)(C), (2)(A), (4)(A), (D)3, (10)(B),
                                                                 (11)(D), .100(2), .110(6), .120(6)(A), (B)2.A
                                                                 through F, (8)(D), .200(1)(B), (3)(H), (4)(B)3,
                                                                 (6)(B), (H), (7)(A), (B), (10)(A), (E), (G),
                                                                 (J), (12)(A)1, (B)1.C, .220(1)(B), (F), (H),
                                                                 (K), .230(1)(C), (2)(A), (4)(A), (D)3, (10)(B),
                                                                 (11)(D), .270(6)(A), (B)2.A through F,
                                                                 .280(1)(C); 40-5.010(2)(C), (E), (3)(B)2,
                                                                 .020(4)(B)1, 2, 4, 5, 6, (C)1, 3, 4, 5; 40-
                                                                 6.060(4)(A)3; 40-8.010(1)(A)59, 79.
July 8, 1988, January 12, 1988.......  May 8, 1991............  RSMo 444.805(8), (16), .950.1, .2, .3, .4,
                                                                 .960.1, .965.2, .4; 10 CSR 40-7.011(1) (E),
                                                                 (F), (G), (2)(C), (4)(E), (F), (5)(A)4, (B)2,
                                                                 4, (D), .021(2)(B)4, (D)(3), (3), .031,
                                                                 .041(1)(B), 1, (D), (4)(A)2.
November 8, 1991.....................  September 24, 1992.....  RSMo 444.870.1 through .5, .873.1, .3, .4.
October 10, 1990.....................  September 29, 1992.....  10 CSR 40-3.010(5), .030(1)(C), .040(2)(A)1,
                                                                 (4)(B)(3), (6)(B), (C), (D), (H), (Q), (T),
                                                                 (10)(G), (I), .050(6)(C), .060(1)(A), (H),
                                                                 .080(3)(A), (8)(B), (D), .090, .110(3)(A),
                                                                 .120(1)(D), (E), (5), (6)(B)1, 2, A, D, G, I,
                                                                 (7)(C)2, (C)3.A, C, (8)(A)4 through 8, 10,
                                                                 .130(2)(A), (3)(C), (I), .140(1)(A), (D)(1),
                                                                 (3)(D)9, (6)(D), (8)(A), (D)(1), (10)(D)9,
                                                                 (13)(C), (D), (15)(A), (20)(C), (D), .170(5),
                                                                 .190(1)(C), .200(2)(A)1, (4)(B)3, (6)(B), (C),
                                                                 (D), (H), (Q), (T), (10)(G), (I), .210(6)(C),
                                                                 .220(1)(A), (H), .230(3)(A), (8)(D), .240,
                                                                 .250(1)(B), .260(3)(A)1, .270(1)(D), (E), (5),
                                                                 (6)(B)1, 2, A, B, D, G, I, (7)(C)2, 3.A, C,
                                                                 (8)(A)4 through 8, 10, .290(1)(A), (D)1,
                                                                 (3)(D)9, (6)(D), (8)(A), (D)1, (10)(D)9,
                                                                 (13)(C), (D), (15)(A), (20)(C), (D),
                                                                 .300(2)(A), (3)(C), (I); 40-4.030(4)(A),
                                                                 (7)(B)6; 40-5.010(1)(A), (J), (2)(C), (3)(F)1;
                                                                 40-6.010(2)(E), .020(2)(B)3, (3)(B)3, (5),
                                                                 .030(1)(A), (C), (D), (H), (2)(D), .040(5)(A),
                                                                 (11)(A), (E), (F), .050(7)(A), (B)1, (B)2,
                                                                 (C)1, (C)3, (9)(C)5, (11)(C), (17)(A)1 through
                                                                 9, (B), (18), .060(4)(A), (E)5, .070(1)(B),
                                                                 (7)(C), (C)2, (F), (G), (8)(I), (L),
                                                                 (10)(B)1.A, (E)2, (11)(A), (B), (13)(E),
                                                                 .100(1)(A), (C), (D), (H), (2)(D), .110(5)(A),
                                                                 (B), (11)(A), (E), (F), .120(5)(C)4, (7)(C),
                                                                 (12)(A), (B)1, (C)1, (C)3, (16), (17)(A)1
                                                                 through 9, (B); 40-7.011(3)(C), (4)(E),
                                                                 (5)(D)2.C.(II), (III), (D)2.(I), 5. A, B, C, 8,
                                                                 .021(2)(A), (B)1, 5, 6, .031(3)(B); 40-
                                                                 8.010(1)(A)4, 53, 51.B, C, D, I, J, 54,
                                                                 .030(6)(G), (7)(A), .040(5)(B)3, (8)(A), (K),
                                                                 .070(2)(C).
October 19, 1992.....................  December 6, 1993.......  10 CSR 40-3.010, .040, .080, .100, .110, .120,
                                                                 .130, .140, .200, .230, .250, .260, .270; 40-
                                                                 4.010; 40-5.010; 40-6.030, .040, .050, .070,
                                                                 .100, .120; 40-7.011, .021, .031, .041; 40-
                                                                 8.010, .030, .040.
September 24, 1993...................  April 22, 1994.........  RSMo 444.870.3, .5 through .8.
February 10, 1995....................  July 13, 1995..........  10 CSR 40-3.030(4)(B)2, .040(10)(B)5,
                                                                 .060(1)(L)1, (0), .080(8)(B), .100(5)2, (6),
                                                                 (7), .110(3)1, (3)3, (6)(B), .140(1)(A); 40-
                                                                 6.010(2)(H), .020(2)(A), (3)(A), .030(1)(C),
                                                                 (5)(B), .050(7)(C), (D), .060(4)(D)(4),
                                                                 .070(8)(M), (9)(A)1, 2.A, .B, .120(7)(C),
                                                                 (12)(D); 40-8.010(1)(A)72, 84, .030(7)(A),
                                                                 .040(9), .050(2)(B).
March 7 and 28, 1995, December 14,     May 28, 1996...........  RSMo 444.805, 830.1, .3, 950.1, .3, .4, 960.1,
 1995.                                                           .5, 965.1, .3, .4, .5; 10 CSR 40-3.120,
                                                                 .270(6)(B); 7.011(1) through (5), .021(2), (5),
                                                                 .041(1), (4).
March 20, 1996.......................  July 24, 1996..........  RSMo 444.800, .810, .950.
April 16, 1997.......................  August 4, 1997.........  Section I of Phase III Revegetation Success
                                                                 Standards for Pasture, Wildlife Habitat,
                                                                 Woodland, Industrial/Commercial, Residential,
                                                                 and Recreation.
June 4, 1999.........................  October 28, 1999.......  10 CSR 40-7.021(1)(B)2

[[Page 570]]

 
October 5, 2000......................  May 9, 2001............  10 CSR 40-3.010(6); 3.020(1); 3.020(3);
                                                                 3.040(2)(A)1, 2, 3.B, 4, 5, 6; 3.040(4)(A)1 and
                                                                 (B)3; 3.040(6)(A), (B), (C), (E), (F), (G),
                                                                 (H), (Q), (T), (U); 3.040(8); 3.040(10)(A),
                                                                 (B)5, (L), (M), (N), (O), (O)1, (O)2.A and B,
                                                                 (O)2.C, (O)3, (O)3.A and B; 3.040(10)(O)3.C
                                                                 [not approved]; 3.040(13)(A)1.A and (B)1;
                                                                 3.040(14)(B)3; 3.040(17); 3.050 Purpose;
                                                                 3.050(1)(D)1.A; 3.050(2)(A); 3.050(3)(C)1;
                                                                 3.080(1)(A); 3.080(3)(D); 3.080(8)(A); 3.090;
                                                                 3.110(4)(A); 3.110(5)(A); 3.110(6)(B);
                                                                 3.120(5); 3.120(8)(A)4, (B), (D)2 and 8;
                                                                 3.140(1)(A); 3.200(2)(A)1, 2, 3.A, 4, 5, 6;
                                                                 3.200(4)(B)3; 3.200(6)(A), (B), (C), (E), (F),
                                                                 (G), (Q), (T), (U); 3.200(8), 3.200(10)(A),
                                                                 (B)5, (K), (L), (M), (N), (O), (O)1, (O)2.A, B,
                                                                 and C, (O)3, (O)3.A and B; 3.200(10)(O)3.C [not
                                                                 approved]; 3.200(12) (A)1.A and (B)1;
                                                                 3.200(13)(B)3; 3.200(16); 3.240 [partial
                                                                 approval]; 3.270(5); 3.270(8)(A)4 and (B);
                                                                 4.010 Purpose; 4.010 (3)(J); 4.020(2)(B); 4.030
                                                                 Purpose; 4.030 (3)(A); 4.030(4)(A), (B), (C);
                                                                 4.030(6)(A), 4.030(7)(B)2 and 7; 4.050(11),
                                                                 (12); 5.010(1)(B); 5.010(2)(E); 6.010(4)(B)2;
                                                                 6.010(6)(A); 6.020 Purpose; 6.020(5);
                                                                 6.020(7)(A); 6.030(1)(C), (D), (I);
                                                                 6.030(2)(C); 6.040(5)(B)1.E; 6.040(16)(C)1 and
                                                                 3; 6.050(1); 6.050(5)(B)11, (C), and (C)1;
                                                                 6.050(7)(D)1; 6.050(9)(C)3 and 4, (D)3, (E);
                                                                 6.050(11)(A), (A)1.A, 2 and 3, (B), (C), (F);
                                                                 6.050(17)(B); 6.060(4)(C)1 and 5, (D)1, (E)5;
                                                                 6.070(3) and (3)(B); 6.070(4)(A); 6.070(5)(B)4;
                                                                 6.070(8)(C), (D)3; 6.070(10) (D); 6.090(4)(B)2;
                                                                 6.090(6)(A); 6.090(7); 6.100(1)(I);
                                                                 6.100(2)(C); 6.120(5)(E); 6.120(7)(A), (A)2 and
                                                                 3, (B)1, (C), (F); 6.120(12)(D)1;
                                                                 6.120(14)(B)10, (C)1; 6.120(15)(B);
                                                                 7.011(6)(A)8, (D)2.C(II), 5.A and C, 8;
                                                                 7.021(1)(C) and (D); 7.021(2)(A), (B)5 and 6;
                                                                 7.021(3)(C) and (D); 8.010(1) (A)9, 12, 52.C,
                                                                 59, 73, 82, 87, 89, and 97B; 8.030(1)(F)4.A and
                                                                 (G); 8.030(6)(A)3 and (B)1; 8.030(10)(A);
                                                                 8.030(12)(C); 8.050 Purpose; 8.050(1);
                                                                 8.050(2)(B); 8.050(5)(A) and (B); 8.050(9)(A);
                                                                 8.070(2)(C)1.A(II)(a) [partial approval] and
                                                                 10.F, (F), (G).
October 31, 2005.....................  June 8, 2006...........  10 CSR 40-7.011(1)(C) and (D), (2)(A) and (B),
                                                                 (3)(C), (4) and (5), (6)(A)6., 8., & 9.,
                                                                 (6)(B)1., 2., & 4. through 7., (6)(C)1. through
                                                                 4., 8. & 9., (6)(D)1.F., 2., 2.B., 2.D.(I)
                                                                 through (III), 3., 5.C., 6., 8., and (7)(A); 10
                                                                 CSR 40-7.021(1)(A), (2), (2)(A), (2)(B)3.
                                                                 through 6., (2)(C)2., (2)(D) and (E); 10 CSR 40-
                                                                 7.031(2)(E)1. and 2., (2)(E)2.C. & D., (3)(C),
                                                                 and (4) through (4)(B)2.; and 10 CSR 40-7.041.
October 11, 2006.....................  March 12, 2007.........  10 CSR 40-7.011(1)(C) and (D), (2)(A) and (B),
                                                                 (3)(C), (4) and (5), (6)(A)6., 8. and 9.,
                                                                 (6)(B)1., 2., and 4. through 7., (6)(C)1.
                                                                 through 4., 8. and 9., (6)(D)1.F., 2., 2.B.,
                                                                 2.D.(I) through (III), 3., 5.C., 6., 8., and
                                                                 (7)(A); 10 CSR 40-7.021(1)(A), (2), (2)(A),
                                                                 (2)(B)3. through 6., (2)(C)2., (2)(D) and (E);
                                                                 10 CSR 40-7.031(2)(E)1. and 2., (2)(E)2.C. &
                                                                 D., (3)(C), and (4) through (4)(B)2.; and 10
                                                                 CSR 40-7.041.
----------------------------------------------------------------------------------------------------------------


[62 FR 9945, Mar. 5, 1997, as amended at 62 FR 41844, Aug. 4, 1997; 64 
FR 57981, Oct. 28, 1999; 66 FR 23605, May 9, 2001; 71 FR 33249, June 8, 
2006; 72 FR 10933, Mar. 12, 2007]



Sec. 925.16  Required program amendments.

    Pursuant to 30 CFR 732.17, Missouri is required to make the 
following program amendments:
    (a)-(o) [Reserved]
    (p) By May 10, 2002, Missouri shall amend its program as follows:
    (1)-(3) [Reserved]
    (4) At 10 CSR 40-3.240 by providing performance standards that 
address air quality in a manner no less effective than the Federal 
regulations at 30 CFR 817.95(a).
    (5)-(19) [Reserved]
    (20) At 10 CSR 40-8.070(2)(C)1.A(II)(a) and (b) to revise the 
definition of cumulative measurement period to provide appropriate dates 
for the end of the period for which cumulative production and revenue is 
reported that are no earlier than September 29, 1992, in accordance with 
the Federal regulation requirements at 30 CFR 702.5(a)(2)(i) and (ii).
    (21) [Reserved]
    (q)-(u) [Reserved]
    (v) By May 10, 2002, Missouri must submit either an amendment or a 
description of an amendment to be proposed, together with a timetable 
for adoption of proposed revisions to remove its provisions at 10 CSR 
40-3.040(10)(O)3.C and 40-3.200(10)(O)3.C.

[49 FR 19476, May 8, 1984 as amended at 64 FR 57981, Oct. 28, 1999]

    Editorial Note: For Federal Register citations affecting Sec. 
925.16, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.

[[Page 571]]



Sec. 925.20  Approval of the Missouri abandoned mine land reclamation plan.

    The Secretary approved the Missouri abandoned mine land reclamation 
plan, as submitted on September 11, 1981, effective January 29, 1982. 
Copies of the approved plan are available at:
    (a) Missouri Department of Natural Resources, Land Reclamation 
Program, 205 Jefferson Street, Jefferson City, MO 65102.
    (b) Office of Surface Mining Reclamation and Enforcement, Mid-
Continent Regional Coordinating Center, Alton Federal Building, 501 
Belle Street, Alton, IL 62002.

[64 FR 20167, Apr. 26, 1999]



Sec. 925.25  Approval of Missouri abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
June 22, 1987........................  June 16, 1988..........  10 CSR 40-9.060(2), (3), (4).
August 22, 1988......................  March 15, 1989.........  Organization; project selection; rights of
                                                                 entry; coordination of reclamation activities;
                                                                 land acquisition, management and disposal;
                                                                 database.
November 29, 1994....................  August 24, 1995........  RSMo 444.810.2 through .8; 444.915.3; 10 CSR 40-
                                                                 9.020(1)(D), (E), (3)(A); AML Plan Sec.
                                                                 884.13(C)(2), (D)(3), (4).
March 31, 1998.......................  June 24, 1998..........  AMLR plan sections 884.13(c)(6) and (d)(3);
                                                                 Emergency response reclamation program.
October 5, 2000......................  May 9, 2001............  10 CSR 40-9.020(1)(D)4 and (F).
----------------------------------------------------------------------------------------------------------------


[62 FR 9946, Mar. 5, 1997, as amended at 63 FR 34280, June 24, 1998; 64 
FR 20167, Apr. 26, 1999; 66 FR 23605, May 9, 2001]



PART 926_MONTANA--Table of Contents



Sec.
926.10 State regulatory program approval.
926.15 Approval of Montana regulatory program amendments.
926.16 Required program amendments.
926.20 Approval of Montana abandoned mine land reclamation plan.
926.21 Required abandoned mine land plan amendments.
926.25 Approval of Montana abandoned mine land reclamation plan 
          amendments.
926.30 State-Federal cooperative agreement.

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



Sec. 926.10  State regulatory program approval.

    The Montana permanent program submitted on August 3, 1979, as 
amended November 13, 1979; January 4, January 9, January 10, January 12, 
January 13, January 30, February 1, and February 20, 1980; November 3, 
1980; and August 26, 1981, is approved effective February 10, 1982. 
Copies of the approved program, as amended, are available at:
    (a) Montana Department of Environmental Quality, Industrial and 
Energy Minerals Bureau, P.O. Box 200901, Helena, Montana 59620-0901, 
(406) 444-1923.
    (b) Casper Field Office, Office of Surface Mining Reclamation and 
Enforcement, 100 East B Street, room 2128, Casper, WY 82601-1918, 
Telephone: (307) 261-5776.

[59 FR 17932, Apr. 15, 1994, as amended at 64 FR 3610, Jan. 22, 1999]



Sec. 926.15  Approval of Montana regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of

[[Page 572]]

final publication in the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
September 13, 1983...................  January 3, 1984........  MCA 82-4-237, -251(4), -254.
April 2, 1984........................  January 3, 1985........  ARM 26.4.1206 through .1209, .1211, .1212.
January 3, 1984......................  November 18, 1985......  ARM 26.4.310, .621 through .626, .1260 through
                                                                 .1263.
July 3, 1985.........................  February 14, 1986......  MCA 82-4-231, 232, 254.
April 23, 1987.......................  December 31, 1987......  MCA 82-4-203, 222, 223.
December 21, 1988....................  May 11, 1990...........  ARM 26.4 subchapters 3, definitions and strip
                                                                 mine permit application requirements; 4, mine
                                                                 permit and test pit prospecting permit
                                                                 procedures; 5, backfilling and grading
                                                                 requirements; 6, transportation facilities,
                                                                 explosives and hydrology; 7, topsoiling,
                                                                 revegetation, and protection of wildlife and
                                                                 air resources; 8, alluvial valley floors, prime
                                                                 farmlands, alternate reclamation, and auger
                                                                 mining; 9, underground coal and uranium mining;
                                                                 10, prospecting; 11, bonding, insurance
                                                                 reporting, and special areas; 12, special
                                                                 departmental procedures; 13, miscellaneous
                                                                 provisions.
June 19, 1990........................  March 20, 1991, August   ARM 26.4.724 through 726, .728, .730 through
                                        19, 1992.                .733, .1301A, .724; ARM 26.4.920, .924 through
                                                                 .927, .930, .932; ARM 26.4 subchapters 3, 5, 8,
                                                                 11, 12.
October 19, 1992.....................  February 25, 1994......  MCA 82-4-203(26).
June 16, 1993, July 28, 1993.........  February 1, 1995.......  MCA 82-4-203, subsections (14), (16), (21),
                                                                 (23), (29), (34), (35), (36), definitions; 82-4-
                                                                 224, surface owner consent; 82-4-226,
                                                                 subsections (1), (2), (3), (5), (6), (8),
                                                                 prospecting permits and notices of intent; 82-4-
                                                                 227, subsections (1), (2), (3), (7) through
                                                                 (13), permit approval/denial criteria.
May 16, 1995.........................  January 22, 1999.......  MCA 2-15-3501, 2-15-3502, 82-4-203(1) through
                                                                 (35), except (24); MCA 82-4-204; MCA 82-4-205;
                                                                 MCA 82-4-221; MCA 82-4-223; MCA 82-4-226(8);
                                                                 MCA 82-4-227; MCA 82-4-231; MCA 82-4-232(6) and
                                                                 (7); MCA 82-4-235; MCA 82-4-240; MCA 82-4-242;
                                                                 MCA 82-4-251; and MCA 82-4-254(1) through (3).
                                                                 Decision deferred on MCA 82-4-239; MCA 82-4-
                                                                 203(24) disapproved.
March 5, 1996........................  January 22, 1999.......  ARM 26.4.301(114); 26.4.410; 26.4.1001; and
                                                                 26.4.1001A.
July 20 and August 17, 2000..........  6/12/01................  MCA 82-4-203(1) and (21)(d), 82-4-232(1), (7)
                                                                 and (8), 82-4-233(1) and 4, 82-4-243, 82-4-
                                                                 253(1), (2) and (3) and 82-4-254(1), (2), (3),
                                                                 (4) and (9).
April 27, 2001.......................  November 21, 2001......  MCA 82-4 part 2 Operating permit revocation--
                                                                 permit transfer
February 1 and 28, 1995..............  February 12, 2002......  ARM 26.4.301(79) through (137); 26.4.304(5) and
                                                                 (6); 26.4.308(2); 26.4.314(3) and (5);
                                                                 26.4.321(1) and (3); 26.4.404(5); 26.4.405(6)
                                                                 and (8); 26.4.407(1), (2) and (4);
                                                                 26.4.501A(3); 26.4.505(4) through (8);
                                                                 26.4.524(2); 26.4.601(5) and (7); 26.4.602(2);
                                                                 26.4.603(9) and Introduction; 26.4.605(3);
                                                                 26.4.623(2); 26.4.633(2); 26.4.634(1) and (2);
                                                                 26.4.638(2); 26.4.639(1), (10), (18) and (19);
                                                                 26.4.642(5) and (8); 26.4.702(4); 26.4.711(2)
                                                                 through(6); 26.4.721(1) through (3);
                                                                 26.4.724(6); 26.4.726(2) and (3); 26.4.821(1);
                                                                 26.4.825(4) and (6); 26.4.924(3) through (5),
                                                                 (8) through (21); 26.4.927(2) and (3);
                                                                 26.4.930(3); 26.4.932(8); 26.4.1002(1) and (2);
                                                                 26.4.1005(2) and (3); 26.4.1006(1) through (4);
                                                                 26.4.1007(1) and (2); 26.4.1009(1) and (2);
                                                                 26.4.1011(1); 26.4.1014; 26.4.1116(7);
                                                                 26.4.1116A(1) and (2); 26.4.1141(3); and
                                                                 26.4.1212(1) are approved. ARM 26.4.301(78);
                                                                 26.3.303, Introduction, (1), (6) through (8),
                                                                 (13) through (15), and (20) through (24);
                                                                 26.4.404(7) through (10); 26.4.405(5);
                                                                 26.4.405A; 26.4.405B, 26.4.519A; 26.4.645(6);
                                                                 26.4.646(6); 26.4.932(5)(b) and 26.4.1206(1)
                                                                 are deferred.

[[Page 573]]

 
May 7, 2002..........................  August 6, 2003.........  ARM 17.24.301 (recodified); 17.24.301(13), (34),
                                                                 (39), (46), (47), (64), (71), (73), (76), (79),
                                                                 (95), (103), (110), (111), (133); 17.24.302(6);
                                                                 17.24.303(15)(a)(ii); 17.24.304(5);
                                                                 17.24.305(2)(b); 17.24.306(1), (3);
                                                                 17.24.313(6); 17.24.315(1)(b);
                                                                 17.24.321(1)(intro), (a), (2)-(4);
                                                                 17.24.324(2), (3); 17.24.327(2); 17.24.401(1),
                                                                 (5)(b)(i); 17.24.403(2)(a); 17.24.405(1), (8);
                                                                 17.24.413(4); 17.24.415(1); 17.24.416(1)(d),
                                                                 (2); 17.24.501(1), (3), (4)-(6); 17.24.501A
                                                                 deleted; 17.24.503(1); 17.24.505(2);
                                                                 17.24.507(4); 17.24.510(1), (2); 17.24.514
                                                                 deleted; 17.24.518(1); 17.24.519A deleted;
                                                                 17.24.520(1), (2), (3 recodified);
                                                                 17.24.522(1); 17.24.601(1)-(11); 17.24.603(1)-
                                                                 (5); 17.24.604 deleted; 17.24.605(1)-(3);
                                                                 17.24.606 [moved to 17.24.601(7)]; 17.24.607(1)-
                                                                 (3); 17.24.623(2)(b)(iii); 17.24.625(1), (2);
                                                                 17.24.632(1); 17.24.633(3)-(5);
                                                                 17.24.634(1)(intro), (a), (2), (3);
                                                                 17.24.639(1)(c)-(27); 17.24.640(1);
                                                                 17.24.642(1)(f), (2), (3), (6); 17.24.645(5
                                                                 intro), (6); 17.24.646(6); 17.24.647(1);
                                                                 17.24.652(1); 17.24.702(1), (2), (6);
                                                                 17.24.711(1), (6)(b); 17.24.716(1), (2), (5);
                                                                 17.24.718(2); 17.24.724(3)(a); 17.24.725(1);
                                                                 17.24.726(2); 17.24.728 (intro); 17.24.733(3),
                                                                 recodified (3)-(5); 17.24.762(1);
                                                                 17.24.815(2)(c)-(e), (f)(i), (h);
                                                                 17.24.821(1)(intro), (1)(g); 17.24.823(2);
                                                                 17.24.825(1), (3); 17.24.826(1), (2) [replaces
                                                                 17.24.1103]; 17.24.901(1)(c)(i)-(iii);
                                                                 17.24.903(1)(a), (c), (d); 17.24.911(1)-(3),
                                                                 (4)-(6) recodified, (7)(intro), (8)-(10);
                                                                 17.24.924(15)-(20); 17.24.925(2); 17.24.927(3);
                                                                 17.24.1001(1)(a), (2)(b)-(o), (4);
                                                                 17.24.1002(1), (2)(j)-(m), (3); 17.24.1003(1
                                                                 recodified), (2)-(4); 17.24.1005(3)(c intro);
                                                                 17.24.1006(1), (3)(intro); 17.24.1010 intro;
                                                                 17.24.1014(1)(b), (2)(d), (4);
                                                                 17.24.1017(2)(c), (3)(d); 17.24.1018(3)-(9);
                                                                 17.24.1103 deleted; 17.24.1104(2), recodify (3)-
                                                                 (5); 17.24.1108(1); 17.24.1111(4), recodify (5)-
                                                                 (6); 17.24.1112(1)(h); 17.24.1116(8);
                                                                 17.24.1116A deleted; 17.24.1132(1)(a)(iv);
                                                                 17.24.1143(1); 17.24.1221(1); 17.24.1222(2);
                                                                 17.24.1223(5) (intro), (6)(b);
                                                                 17.24.1224(1)(b); 17.24.1225(1)-(3);
                                                                 17.24.1226(1), (2); 17.24.1228(1);
                                                                 17.24.1261(1), (2), (4)(b), (c), (5);
                                                                 17.24.1262(1 as recodified).
                                                                MCA 82-4-205 recodification, (1), (2); 82-4-206
                                                                 title, (1), (2); 82-4-231(8)(c), (d), (f); 82-4-
                                                                 241(1)-(3); 82-4-254(3), (4).
July 29, 2003........................  February 16, 2005......  MCA 82-4-202(3)(c); (3)(e) except for the phrase
                                                                 ``and attainable''; 82-4-203(2); 82-4-203(4)
                                                                 except at (4)(c) the phrase ``as necessary to
                                                                 support postmining land uses within the area
                                                                 affected and the adjacent area''; 82-4-203(13),
                                                                 (16), (17), (20) through (23); (24) except the
                                                                 phrase ``as they relate to uses of land and
                                                                 water within the area affected by mining and
                                                                 the adjacent area''; (26), (27), (28), (30),
                                                                 (37), (38), (42) through (44), (46), (47),
                                                                 (50), (55); 82-4-221(3); 82-4-222(1)(m)-(p); 82-
                                                                 4-231(10)(k) except the phrase ``as necessary
                                                                 to support postmining land uses and to prevent
                                                                 material damage to the hydrologic balance in
                                                                 the adjacent area''; 82-4- 231(10)(k)(vii);
                                                                 (viii) except the phrase ``to protect the
                                                                 hydrologic balance as necessary to support
                                                                 postmining land uses within the area affected
                                                                 and to prevent material damage to the
                                                                 hydrologic balance in adjacent areas''; 82-4-
                                                                 232(1) through (10); 82-4-233; 82-4-234; 82-4-
                                                                 235(1)-(1)(c); 82-4-235(1)(e)-(f); 82-4-
                                                                 235(1)(g) except the phrase ``are introduced
                                                                 species that have become naturalized''; 82-4-
                                                                 236; HB 373 Section 11; 82-4-252(2); HB 684
                                                                 repeal of Sec. 5, Chapter 522, Laws of 2001;
                                                                 also all editorial and codification changes.
                                                                We are taking no action on: MCA 82-4-202(1); 82-
                                                                 4-239.
August 31, 2005......................  October 10, 2007.......  ARM 17.24.301(6); 17.24.301(11); 17.24.301(13)
                                                                 (intro) and (a), (b), and (d); 17.24.301(26);
                                                                 17.24.301(33); 17.24.301(36); 17.24.301(38);
                                                                 17.24.301(46); 17.24.301(50); 17.24.301(54);
                                                                 17.24.301(59); 17.24.301(64); 17.24.301(64)(b),
                                                                 (c), (d), (g), and (h); 17.24.301(67);
                                                                 17.24.301(90); 17.24.301(103);
                                                                 17.24.301(107)(b); 17.24.301(143); 17.24.302;
                                                                 17.24.303(1)(w), (x), and (y);
                                                                 17.24.305(2)(b)(i); 17.24.308(1)(b)(vii);
                                                                 17.24.312(1)(b); 17.24.313; 17.24.321(1) and
                                                                 (3); 17.24.322(2)(a)(x) and (4); 17.24.323;
                                                                 17.24.324(1)(e); 17.24.401(3)(f) and
                                                                 (5)(a)(iv); 17.24.404(9) and (10); 17.24.405(1)
                                                                 and (2), (6)(j), and (7); 17.24.416(1)(b);
                                                                 17.24.413(1)(f); 17.24.427(1)(a), (c) and (2);
                                                                 17.24.501(4)(a), (d) and (6)(d); 17.24.515;
                                                                 17.24.522(3); 17.24.603(4); 17.24.605(8);
                                                                 17.24.609(1); 17.24.623(2) and (5)(b);
                                                                 17.24.624(4), (6)(a), (7)(a), (11) and (14);
                                                                 17.24.626(1)(j); 17.24.633(2); 17.24.634;
                                                                 17.24.636(2) and (3); 17.24.639(2), (3) and
                                                                 (7); 17.24.642(1)-(7); 17.24.646(4);
                                                                 17.24.701(4); 17.24.702(4)(b) and (6);
                                                                 17.24.711; 17.24.714(1); 17.24.716(1), (3),
                                                                 (4), and (5); 17.24.717(1); 17.24.718(3);
                                                                 17.24.719; 17.24.720; 17.24.724(1)-(3);
                                                                 17.24.726 except at (1) the proposed deletion
                                                                 of the phrase ``the application and must;''
                                                                 17.24.728; 17.24.751(1) and (2)(a), (c), (e),
                                                                 and (f); 17.24.762(1)(a)-(d), (2), and (3);
                                                                 17.24.764; 17.24.815(1)(a)(i), (ii) and (b);
                                                                 17.24.821; 17.24.823; 17.24.824; 17.24.825;
                                                                 17.24.826; 17.24.832(4) and (5)(b) and (c);
                                                                 17.24.1001; 17.24.1104(1) and (3);
                                                                 17.24.1108(1), (2) and (4); 17.24.1109(1)(d)-
                                                                 (g); 17.24.1116; 17.24.1125(2);
                                                                 17.24.1132(1)(a); 17.24.1133(2)(a), (b), and
                                                                 (3); 17.24.1201(1)-(4); 17.24.1202; 17.24.1301;
                                                                 also all minor, editorial, and codification
                                                                 changes.

[[Page 574]]

 
January 18, 2006.....................  May 14, 2008...........  Montana Code Annotated (MCA) 82-4-206; 82-4-223;
                                                                 82-4-225; 82-4-226; 82-4-227; 82-4-231; 82-4-
                                                                 232; 82-4-233; 82-4-235; 82-4-251; 82-4-254; 82-
                                                                 4-1001; 82-4-1002.
November 6, 2006.....................  May 14, 2008...........  Administrative Record of Montana (ARM) 17.4.301;
                                                                 17.4.302; 17.4.303; 17.4.304; 17.4.305;
                                                                 17.4.306; 17.4.307; 17.4.308; 17.24.1206;
                                                                 17.24.1211; 17.24.1212; 17.24.1218; 17.24.1219;
                                                                 17.24.1220.
July 7, 2008.........................  January 5, 2009........  Montana Strip and Underground Mine Reclamation
                                                                 Act 82-4-232(3) and (4), 82-4-232 (5)(k), 82-4-
                                                                 232(5)(l).
July 3, 2008.........................  December 27, 2010......  Normal husbandry practices.
July 14, 2010........................  March 9, 2011..........  ARM 17.24.1109.
May 12, 2009.........................  May 24, 2011...........  MCA 82-4-235(2), -235(3)(a), -235(3)(b), -
                                                                 235(4)(a), and -235(4)(b).
----------------------------------------------------------------------------------------------------------------


[62 FR 9946, Mar. 5, 1997, as amended at 64 FR 3610, 3615, Jan. 22, 
1999; 66 FR 31533, June 12, 2001; 66 FR 58381, Nov. 21, 2001; 67 FR 
6408, Feb. 12, 2002; 68 FR 46477, Aug. 6, 2003; 70 FR 8018, Feb. 16, 
2005; 72 FR 57838, Oct. 10, 2007; 73 FR 27743, May 14, 2008; 74 FR 219, 
Jan. 5, 2009; 75 FR 81119, Dec. 27, 2010; 76 FR 12859, Mar. 9, 2011; 76 
FR 30013, May 24, 2011]



Sec. 926.16  Required program amendments.

    Pursuant to 30 CFR 732.17(f)(1), Montana is required to submit to 
OSM by the specified date the following written, proposed program 
amendment, or a description of an amendment to be proposed that meets 
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with Montana's established administrative 
or legislative procedures.
    (a)-(d) [Reserved]
    (e) By October 19, 1992, Montana shall:
    (1) through (9) [Reserved]
    (f)-(m) [Reserved]

[49 FR 20287, May 14, 1989, as amended at 55 FR 19736, May 11, 1990; 57 
FR 37446, Aug. 19, 1992; 59 FR 9087, Feb. 25, 1994; 60 FR 6013, Feb. 1, 
1995; 64 FR 3610, 3615, Jan. 22, 1999; 67 FR 6408, Feb. 12, 2002; 68 FR 
46477, Aug. 6, 2003; 72 FR 57838, Oct. 10, 2007]



Sec. 926.20  Approval of Montana abandoned mine land reclamation plan.

    The Montana Abandoned Mine Land Reclamation Plan, as submitted on 
June 16, 1980, and as revised on July 28, 1980, is approved effective 
November 24, 1980. Copies of the approved plan are available at:
    (a) Montana Department of Environmental Quality, 1625 Eleventh 
Avenue, Helena, MT 59620-1601.
    (b) Office of Surface Mining Reclamation and Enforcement, Casper 
Field Office, 100 East B Street, Room 2128, Casper, WY 82601-1918.

[60 FR 37002, July 19, 1995]



Sec. 926.21  Required abandoned mine land plan amendments.

    Pursuant to 30 CFR 884.15, Montana is required to submit for OSM's 
approval the following proposed plan amendment by the date specified.
    (a)-(b) [Reserved]

[64 FR 3610, Jan. 22, 1999, as amended at 67 FR 41829, June 20, 2002]



Sec. 926.25  Approval of Montana abandoned mine land reclamation plan amendments.

    (a) Montana certification of completing all known coal-related 
impacts is accepted, effective July 9, 1990.
    (b) The following is a list of the dates amendments were submitted 
to OSM, the dates when the Director's decision approving all, or 
portions of these amendments, were published in the Federal Register and 
the State citations or a brief description of each amendment. The 
amendments in this table are listed in order of the date of final 
publication in the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
April 20, 1983.......................  August 18, 1983........  Liens on noncoal projects; noncoal additions to
                                                                 Montana Abandoned Mine Land Inventory;
                                                                 emergency response reclamation program;
                                                                 organizational restructure.

[[Page 575]]

 
March 22, 1995.......................  July 19, 1995..........  Reclamation of interim program and bankrupt
                                                                 surety coal sites; future set-aside program;
                                                                 water supply facilities and water replacement;
                                                                 other policies and procedures.
August 15, 2000......................  June 20, 2002..........  Deletion of ARM 26.4.301(1), (37), and (41),
                                                                 26.4.1231, 26.4.1232, 26.4.1233, 26.4.1234,
                                                                 26.4.1235, 26.4.1236, 26.4.1237, 26.4.1238,
                                                                 26.4.1239, 26.4.1240, 26.4.1241, and 26.4.1242;
                                                                 and revision of ARM 26.4.301(1), ARM 26.4.1303,
                                                                 MCA 82-4-239, and the Montana Reclamation Plan
                                                                 2001 Plan Amendment are approved.
----------------------------------------------------------------------------------------------------------------


[62 FR 9947, Mar. 5, 1997, as amended at 67 FR 41828, June 20, 2002]



Sec. 926.30  State-Federal cooperative agreement.

                          Cooperative Agreement

    The Governor of the State of Montana (Governor) and the Secretary of 
the Department of the Interior (Secretary) enter into a State-Federal 
Cooperative Agreement (Agreement) to read as follows:

        Article I: Authority, Purposes, and Responsible Agencies

                              A. Authority

    This Agreement is authorized by section 523(c) of the Surface Mining 
Control and Reclamation Act (SMCRA), 30 U.S.C. 1273(c), which allows a 
State with a permanent regulatory program approved by the Secretary, 
under 30 U.S.C. 1253, to elect to enter into an agreement for State 
control and regulation of surface coal mining and reclamation operations 
on Federal lands. This Agreement provides for State regulation of coal 
exploration operations \1\ not subject to 43 CFR Group 3400, and surface 
coal mining and reclamation operations and activities in Montana on 
Federal lands consistent with SMCRA, the Federal lands program (30 CFR) 
Chapter VII, Subchapter D), and the Montana State Program (State 
Program), including among other things, the Montana Strip and 
Underground Mine Reclamation Act, part 2, Chapter 4, Title 82, Montana 
Code Annotated (State Act or MCA).
---------------------------------------------------------------------------

    \1\ The term ``Exploration Operations'' is referred to as 
``Prospecting'' in the Montana State Program.
---------------------------------------------------------------------------

                               B. Purposes

    The purposes of the Agreement are to (1) foster State-Federal 
cooperation in the regulation of surface coal mining and reclamation 
operations on Federal lands and coal exploration operations not subject 
to 43 CFR Group 3400; (2) minimize intergovernmental overlap and 
duplication; and (3) provide effective and uniform application of the 
State Program on all non-Indian lands in Montana.

                         C. Responsible Agencies

    The Montana Department of Environmental Quality (DEQ) shall 
administer this Agreement on behalf of the Governor. The Office of 
Surface Mining Reclamation and Enforcement (OSM) shall administer this 
Agreement on behalf of the Secretary.

                       Article II: Effective Date

    Upon signing by the Secretary and the Governor, this Agreement will 
take effect 30 days after final publication as a rule making in the 
Federal Register. \2\ This Agreement shall remain in effect until 
terminated as provided in Article XI.
---------------------------------------------------------------------------

    \2\ See explanation in Article II at 46 FR 20983, April 8, 1981.
---------------------------------------------------------------------------

                        Article III: Definitions

    The term and phrases used in this Agreement, except the term 
``permit application package (PAP),'' will be given the meanings set 
forth in SMCRA, 30 CFR Parts 700, 701, 740, and 761, and the State 
Program, including the State Act and the regulations promulgated 
pursuant to the State Act. Where there is a conflict between the above-
referenced State and Federal definitions, the definitions used in the 
State Program will apply, unless otherwise required by Federal 
regulation.
    The term ``permit application package (PAP)'' for the purposes of 
this Agreement, means a proposal to conduct surface coal mining and 
reclamation operations on Federal lands, including an application for a 
permit, permit revision, permit amendment, or permit renewal, and all 
information required by SMCRA, the Federal regulations, the State 
Program, this Agreement, and all other applicable laws and regulations, 
including, with respect to leased Federal coal, the Mineral Leasing Act 
of 1920 (MLA) and its implementing regulations.

[[Page 576]]

                        Article IV: Applicability

    In accordance with the Federal lands program, the laws, regulations, 
terms and conditions of the State Program are applicable to Federal 
lands in Montana except as otherwise stated in this Agreement, SMCRA, 30 
CFR 740.4, 740.11(a), and 745.13 or other applicable Federal laws, 
Executive Orders, or regulations.

                Article V: Requirements for the Agreement

    The Governor and the Secretary affirm that they will comply with all 
provisions of this Agreement.

                                A. Funds

    1. The State shall devote adequate funds to the administration and 
enforcement on Federal lands in Montana of the requirements contained in 
the State Program. If the State complies with the terms of this 
Agreement, and if necessary funds have been appropriated, OSM shall 
reimburse the State as provided in section 705(c) of SMCRA and 30 CFR 
735.16 for the costs associated with carrying out responsibilities under 
this Agreement. The amount of such funds shall be determined in 
accordance with the provisions of Chapter 3-10 and appendix 111 of the 
Federal Assistance Manual.
    2. If DEQ applies for a grant but sufficient funds have not been 
appropriated to OSM, OSM and DEQ shall promptly meet to decide on 
appropriate measures that will insure that surface coal mining and 
reclamation operations on Federal lands in Montana are regulated in 
accordance with the State Program.
    3. Funds provided to DEQ under this Agreement will be adjusted in 
accordance with the program income provisions of 43 CFR part 12.

                         B. Reports and Records

    1. DEQ shall submit annual reports to OSM containing information 
with respect to its compliance with the terms of this Agreement pursuant 
to 30 CFR 745.12(d). Upon request, DEQ and OSM shall exchange, except 
where prohibited by Federal or State law, information developed under 
this Agreement. OSM shall provide DEQ with a copy of any final 
evaluation report prepared concerning State administration and 
enforcement of this Agreement. DEQ comments on the report will be 
attached before being sent to the Congress or other interested parties.

                              C. Personnel

    DEQ shall maintain the necessary personnel to fully implement this 
Agreement in accordance with the provisions of SMCRA, the Federal lands 
program, and the State Program.

                       D. Equipment and Facilities

    DEQ shall assure itself access to equipment, laboratories, and 
facilities with which all inspections, investigations, studies, tests, 
and analyses can be performed and which are necessary to carry out the 
requirements of this Agreement.

             E. Permit Application Fees and Civil Penalties

    The amount of the fee accompanying the PAP shall be determined in 
accordance with section 82-4-223(1), of MCA, and the applicable 
provisions of Federal law. All permit fees and civil penalty fines shall 
be accounted for in accordance with the provisions of 43 CFR part 12. 
Permit fees will be considered program income. Civil penalties will not 
be considered program income. The Financial Status Report submitted 
pursuant to 30 CFR 735.26 shall include the amount of the permit 
application fees collected and attributable to Federal lands during the 
State fiscal year.

Article VI: Review and Approval of the PAP or Application for Transfer, 
       Assignment or Sale of Permit Rights (Transfer Application)

     A. Receipt and Distribution of the PAP or Transfer Application

    1. DEQ shall require an applicant proposing to conduct surface coal 
mining and reclamation operations on Federal lands to submit to DEQ the 
appropriate number of copies of a PAP or transfer application. The PAP 
or transfer application shall meet the requirements of 30 CFR part 740, 
shall be in the form required by DEQ, and shall contain, at a minimum, 
the information required by 30 CFR 740.13(b), including:
    a. Information necessary for DEQ to make a determination of 
compliance with the State Program;
    b. Any supplement information required by OSM, the Bureau of Land 
Management (BLM), and the Federal Land Management Agency. This 
information shall be appropriate and adequate for OSM and the 
appropriate Federal agencies to make determinations of compliance with 
applicable requirements of SMCRA,the MLA, as amended, the Federal lands 
program, and other Federal laws, Executive Orders, and regulations which 
these agencies administer.
    2. Except as otherwise agreed in writing by Federal agencies, upon 
receipt of a PAP or transfer application, DEQ shall ensure that an 
appropriate number of copies of the PAP or transfer application are 
provided to OSM, Federal land management agency, and any other 
appropriate Federal agency.

              B. Review of the PAP or Transfer Application

    1. DEQ is responsible for:
    a. As authorized by 30 CFR 740.4(c),

[[Page 577]]

    (1) Being the primary point of contact with the applicant regarding 
the review of the PAP or transfer application and communications 
regarding all decisions and determinations with respect to the PAP or 
transfer application;
    (2) Analysis, review, and approval, conditional approval, or 
disapproval of the permit application component of the PAP or the 
transfer application for surface coal mining and reclamation operations 
on Federal lands in Montana;
    (3) Obtaining the comments and findings of Federal agencies with 
jurisdiction or responsibility over Federal lands affected by the 
operations proposed in the PAP or transfer application, unless otherwise 
agreed in writing by Federal agencies. DEQ shall request such Federal 
agencies to provide to DEQ their requests for additional information or 
their findings within 45 days of the receipt of the request;
    (4) Obtaining OSM's determination whether the PAP involving leased 
Federal coal constitutes a mining plan modification under 30 CFR 746.18, 
and informing the applicant of such determination;
    (5) Consulting with and obtaining the consent, as necessary, of the 
Federal land management agency pursuant to 30 CFR 740.4(c)(2), with 
respect to post-mining land use and to any special requirements 
necessary to protect non-coal resources of the areas that will be 
affected by surface coal mining and reclamation operations;
    (6) Consulting with and obtaining the consent, as necessary, of BLM 
pursuant to 30 CFR 740.4(c)(3), with respect to requirements relating to 
the development, production and recovery of mineral resources on lands 
affected by surface coal mining and reclamation operations involving 
leased Federal coal pursuant to 43 CFR Group 3400;
    (7) Approval and release of performance bonds pursuant to Article 
IX.B, and approval and maintenance of liability insurance;
    (8) Review and approval of exploration operations not subject to the 
requirements of 43 CFR Group 3400, as provided in 30 CFR 740.4(c)(6).
    b. In addition, where a mining plan action is required under 30 CFR 
part 746, as determined by OSM:
    (1) Preparation of documentation to comply with the requirements of 
National Environmental Policy Act (NEPA). However, OSM will retain the 
responsibility for the exceptions in 30 CFR 740.4(c)(7)(l) through 
(vii). DEQ and OSM shall coordinate and cooperate with each other so 
that, if possible, one Environmental Assessment or Environmental Impact 
Statement is produced to comply with NEPA and the Montana Environmental 
Policy Act (MEPA);
    (2) Preparation of a State decision package, which includes written 
findings indicating that the permit application component of the PAP is 
in compliance with the terms of the State Program, a technical analysis 
of the PAP, and supporting documentation.
    2. OSM is responsible for:
    a. When the PAP includes Federal lands,
    (1) Making determinations and evaluations for NEPA compliance 
documents as required by 30 CFR 740.4(c)(7)(l) through (vii);
    (2) Reviewing the appropriate portions of the PAP for compliance 
with the non-delegable responsibilities of the Secretary pursuant to 
SMCRA and 30 CFR 745.13, and for compliance with the requirements of 
other Federal laws, Executive Orders, and regulations;
    (3) Consulting with the Federal land management agency, and 
determining whether the PAP constitutes a mining plan modification under 
30 CFR 746.18, and informing DEQ, whenever practical within 30 days of 
receiving a copy of the PAP for operations on Federal lands, of such 
determination;
    (4) Exercising its responsibilities in a timely manner governed, to 
the extent possible, by the deadlines established in the State Program;
    (5) Assisting DEQ, upon request, in carrying out its 
responsibilities by:
    (a) Coordinating resolution of conflicts between DEQ and other 
Federal agencies in a timely manner;
    (b) Obtaining comments and findings of other Federal agencies with 
jurisdiction or responsibility over Federal lands;
    (c) Scheduling joint meetings between DEQ and Federal agencies;
    (d) Reviewing and analyzing the PAP, to the extent possible, and 
providing to DEQ the work product within 50 days of receipt of the 
State's request for such assistance, unless a different time is agreed 
upon by OSM and DEQ; and
    (e) Providing technical assistance, if available OSM resources 
allow.
    b. In addition, where a mining plan action is required pursuant to 
30 CFR part 746:
    (1) Consulting with and obtaining the concurrences of BLM, the 
Federal land management agency, and any other Federal agency, as 
necessary, prior to making recommendation to the Secretary concerning 
approval of the mining plan;
    (2) Upon notification from the DEQ that certain permit conditions 
required by the Federal land management agency are not incorporated in 
the State permit, OSM will determine whether such conditions are 
necessary. When OSM believes the conditions are necessary, OSM will work 
with the Federal land management agency to find another means to resolve 
the issue and, where appropriate, OSM will facilitate the attachment of 
conditions to the appropriate Federal authorizations; and

[[Page 578]]

    (3) Providing a decision document to the Secretary recommending 
approval, disapproval, or conditional approval of mining plans or 
modifications thereof.
    3. The Secretary:
    a. Shall concurrently carry out his responsibilities that cannot be 
delegated to DEQ pursuant to SMCRA and 30 CFR 745.13, the Federal lands 
program, the MLA, NEPA, this Agreement, and other applicable Federal 
laws including, but not limited to, those listed in appendix A. The 
Secretary shall carry out these responsibilities in a timely manner and 
will avoid, to the extent possible, duplication of the responsibilities 
of the State as set forth in this Agreement and the State Program;
    b. Reserves the right to act independently of DEQ to carry out his 
responsibilities under laws other than SMCRA, and where Federal law 
permits, to delegate some of the responsibilities to OSM; and
    c. Shall be responsible for approval, disapproval, or conditional 
approval of mining plans and modifications thereof with respect to lands 
containing leased Federal coal in accordance with 30 CFR 740.4(a)(1).
    4. Coordination:
    a. As a matter of practice, OSM will not independently initiate 
contacts with applicants regarding completeness or deficiencies of a PAP 
or transfer application with respect to matters covered by the State 
Program.
    b. OSM and DEQ shall coordinate with each other during the review 
process of a PAP or transfer application as needed.
    c. OSM and DEQ may request and schedule meetings with the applicant 
with adequate advance notice to each other.
    d. DEQ shall keep OSM informed of findings made during the review 
process which bear on the responsibilities of OSM or other Federal 
agencies. DEQ shall send to OSM copies of any correspondence with the 
applicant and any information received from the applicant regarding the 
PAP or transfer application. OSM shall send to DEQ copies of all OSM 
correspondence with the applicant and any other information received 
from the applicant which may have a bearing on the PAP or transfer 
application. Any conflicts or differences of opinions that may develop 
during the review process should be resolved at the lowest possible 
staff level.
    e. OSM shall have access to DEQ files concerning operations on 
Federal lands.
    f. Where a mining plan action is required pursuant to 30 CFR part 
746, OSM and DEQ shall develop a work plan and schedule for the PAP 
review and each will designate a project leader. The project leaders 
will serve as the primary points of contact between OSM and DEQ 
throughout the review process. Not later than 50 days after receipt of 
the PAP, unless a different time is agreed upon, OSM shall furnish DEQ 
with its review comments on the PAP and specify any requirements for 
additional data. DEQ shall provide OSM all available information that 
may assist OSM in preparing any findings for the mining plan action.
    g. On matters concerned exclusively with regulations under 43 CFR 
Group 3400, BLM will be the primary contact with the applicant and shall 
inform DEQ of its actions and provide DEQ with a copy of documentation 
on all decisions.
    h. Responsibilities and decisions which can be delegated to DEQ 
under applicable Federal laws other than SMCRA may be specified in 
working agreements between OSM and DEQ, with the concurrence of any 
Federal agency involved, and without amendment to this Agreement.
    i. In the case that valid existing rights (VER) are determined to 
exist on Federal lands under section 522(e)(3) of SMCRA where the 
proposed operation will adversely affect either a publicly-owned park, 
or a historic place listed in the National Register of Historic Sites, 
DEQ shall work, respectively, with the agency with jurisdiction over the 
publicly-owned park or the agency with jurisdiction over the historic 
place, to develop mutually acceptable terms and conditions for 
incorporation into the permit to mitigate adverse impacts.

             C. Approval of the PAP or Transfer Application

    1. DEQ shall make a decision on approval, conditional approval, or 
disapproval of the permit application component of the PAP or the 
transfer application on Federal lands.
    2. DEQ must consider the comments of Federal agencies in the context 
of permit issuance and will document these comments in the record of 
permit decisions. To the extent allowed by Montana law, permits issued 
by DEQ will include terms and conditions imposed by the Federal land 
management agency pursuant to applicable Federal laws and regulations 
other than SMCRA, in accordance with 30 CFR 740.13(c)(1). When Federal 
agencies recommend permit conditions and these conditions are not 
adopted by DEQ. DEQ will provide OSM with documentation as to why they 
were not incorporated as permit conditions.
    3. When a mining plan action is required pursuant to 30 CFR part 
746, DEQ may make a decision on approval, conditional approval, or 
disapproval of the permit application component of the PAP on Federal 
lands in accordance with the State Program prior to the necessary 
Secretarial decision on the mining plan, provided that DEQ advises the 
applicant that Secretarial approval of the mining plan action must be 
obtained before the applicant may conduct surface coal mining and 
reclamation operations on the Federal lands. To the extent allowed by 
the State law, DEQ shall reserve the right to amend or rescind any 
requirements of the

[[Page 579]]

permit to conform with any terms or conditions imposed by the Secretary 
in the approval of the mining plan.
    4. After making its decision on the permit application component of 
the PAP or transfer application, DEQ shall send a copy of the signed 
permit form and State decision document to the applicant, OSM, the 
Federal land management agency, and any agency with jurisdiction over a 
publicly-owned park, or historic property included in the NRHS which 
would be adversely affected by the surface coal mining and reclamation 
operations.

                        Article VII: Inspections

    A. DEQ shall conduct inspections on Federal lands in accordance with 
30 CFR 740.4(c)(5) and prepare and file inspection reports in accordance 
with the approved State Program.
    B. DEQ shall, subsequent to conducting any inspection on Federal 
lands, file with OSM's appropriate Field Office an inspection report 
describing: (1) the general conditions of the lands under the lease, 
permit, or license; (2) the manner in which the operations are being 
conducted; and (3) whether the operator is complying with applicable 
performance standards and reclamation requirements.
    C. DEQ will be the point of contact and inspection authority in 
dealing with the operator concerning operations and compliance with 
requirements covered by this Agreement, except as described in this 
Agreement and in the Secretary's regulations. Nothing in this Agreement 
shall prevent inspections by authorized Federal or State agencies for 
purposes other than those covered by this Agreement.
    D. Authorized representatives of the Secretary may conduct any 
inspections necessary to comply with 30 CFR Parts 842 and 843, and with 
the Secretary's obligations under laws other than SMCRA.
    E. OSM shall give DEQ reasonable notice of its intent to conduct an 
inspection in order to provide State inspectors with an opportunity to 
join in the inspection. When OSM is responding to a citizen complaint 
supplying adequate proof of an imminent danger to the public health and 
safety, or a significant imminent environmental harm to land, air, or 
water resources, pursuant to 30 CFR 842.11(b)(1)(ii)(C), it shall 
contact DEQ no less than 24 hours prior to the Federal inspection, if 
practicable, to facilitate a joint Federal/State inspection. All citizen 
complaints which do not involve an imminent danger to the public health 
and safety, or a significant imminent environmental harm to land, air, 
or water resources, must be referred initially to DEQ for action. The 
Secretary reserves the right to conduct inspections without prior notice 
to DEQ, if necessary, to carry out his responsibilities under SMCRA.

                        Article VIII: Enforcement

    A. DEQ shall have primary enforcement authority under SMCRA 
concerning compliance with the requirements of this Agreement and the 
State Program in accordance with 30 CFR 740.4(c)(5) and 740.17(a)(2). 
Enforcement authority given to the Secretary under SMCRA, and its 
implementing regulations, or other Federal laws and Executive Orders, 
including, but not limited to, those listed in appendix A, is reserved 
to the Secretary.
    B. During any joint inspection by OSM and DEQ, DEQ will have primary 
responsibility for enforcement procedures, including issuance of 
cessation orders and notices of violation. DEQ shall consult with OSM 
prior to issuance of any decision to suspend, rescind or revoke a permit 
on Federal lands. DEQ shall notify BLM of any suspension, rescission or 
revocation of a permit containing leased Federal coal pursuant to 30 CFR 
740.13(f)(2).
    C. During any inspection made solely by OSM or any joint inspection 
where DEQ an OSM fail to agree regarding the propriety of any particular 
enforcement action, OSM may take any enforcement action necessary to 
comply with 30 CFR Parts 842, 843, 845 and 846.
    D. DEQ and OSM shall promptly notify each other of all violations 
and of all actions taken with respect to such violations.
    E. Personnel of DEQ and OSM shall be mutually available to serve as 
witnesses in enforcement actions taken by either party.
    F. This Agreement does not affect or limit the Secretary's authority 
to enforce violations of Federal laws other than SMCRA.

                            Article IX: Bonds

    A. DEQ and the Secretary shall require all operators on Federal 
lands to submit a single performance bond jointly payable to both the 
United States and DEQ. The board shall be of sufficient amount to cover 
the operator's responsibilities under SMCRA and the State Program. The 
bond shall be conditioned upon continued compliance with all 
requirements of SMCRA, 30 CFR Chapter VII, the State Program, and the 
permit. Such bond shall provide that if this Agreement is terminated 
under the provisions of 30 CFR 745.15, the portion of the bond covering 
the Federal lands shall be payable only to the United States.
    B. DEQ will have primary responsibility for the approval and release 
of performance bonds required for surface coal mining and reclamation 
operations on Federal lands. However, release of a performance bond on 
lands subject to an approved mining plan requires the concurrence of OSM 
as provided in

[[Page 580]]

30 CFR 740.15(d)(3). Prior to such concurrence, OSM shall coordinate 
with other Federal agencies having the authority over the lands 
involved. DEQ shall annually advice OSM of adjustments to the 
performance bond.
    C. Performance bonds will be subject to forfeiture with he 
concurrence of OSM, in accordance with the procedures and requirements 
of the State Program. OSM may not withhold its concurrence unless DEQ's 
forfeiture decision is not in accordance with the requirements and 
procedures of the State program.
    D. Submission of a performance bond does not satisfy the 
requirements for either a Federal lease bond required by 43 CFR part 
3474 or a lessee protection bond which is required in certain 
circumstances by section 715 of SMCRA.

Article X: Designating Land Areas Unsuitable for All or Certain Types of 
Surface Coal Mining and Reclamation Operations and Activities, and Valid 
            Existing Rights and Compatibility Determinations

                       A. Unsuitability Petitions

    1. Authority to designate or terminate the designation of areas of 
Federal lands as unsuitable for mining is reserved to the Secretary. 
Unsuitability petitions shall be filed with OSM and would be processed 
in accordance with 30 CFR 769.
    2. When either DEQ or OSM receives a petition that could impact 
adjacent Federal or non-Federal lands pursuant to section 522(c) of 
SMCRA, the agency receiving the petition will notify the other of 
receipt of the petition and the anticipated schedule for reaching a 
decision. OSM shall coordinate with and solicit comments from the 
applicable Federal land management agency. OSM and DEQ shall fully 
consider data, information, and recommendations of all agencies.

     B. Valid Existing Rights (VER) and Compatibility Determinations

    The following actions will be taken when requests for determinations 
of VER pursuant to section 522(e) of SMCRA, or for determinations of 
compatibility pursuant to section 522(e)(2) of SMCRA are received:
    1. For Federal lands within the boundaries of any areas specified 
under section 522(e)(1) of SMCRA, the Secretary will make the VER 
determination. If surface coal mining and reclamation operations would 
be conducted on both Federal and non-Federal lands within such areas, 
the Secretary will make the VER determination for the Federal lands and 
DEQ will make the VER determination for State and private lands.
    2. For Federal lands within the boundaries of any national forest 
where proposed surface coal mining and reclamation operations are 
prohibited or limited by section 522(e)(2) of SMCRA and 30 CFR 
761.11(b), the Secretary will make VER determinations. OSM will process 
requests for determinations of compatibility under section 522(e)(2) of 
SMCRA and part 30 CFR 761.12(c).
    3. Where a VER determination is requested for Federal lands 
protected under section 522(e)(3), DEQ will make the VER determination. 
DEQ will determine, in consultation with the State Historic Preservation 
Officer, whether any proposed operation will adversely affect any 
publicly-owned park or historic place listed on the National Register of 
Historic Sites (NRHS).
    Surface coal mining and reclamation operations of Federal lands 
protected under section 522(e)(3) of SMCRA may be permitted if approved 
jointly by DEQ, and the Federal, State, or local agency with 
jurisdiction over the park or historic place. DEQ will coordinate with 
any agency with jurisdiction over the publicly-owned park or historic 
place to develop mutually acceptable terms and conditions for 
incorporation into the permit in order to mitigate environmental 
impacts.
    4. DEQ will process determinations of VER on Federal lands for all 
areas limited or prohibited by section 522(e)(4) and (5) of SMCRA as 
unsuitable for mining.
    5. For operations on Federal lands, whenever DEQ is responsible for 
making the VER determinations, DEQ will consult with OSM and any 
affected agency.

                Article XI: Termination of the Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

               Article XII: Reinstatement of the Agreement

    If this Agreement has been terminated in whole or part, it may be 
reinstated under the provisions of 30 CFR 745.16.

                Article XIII: Amendments of the Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIV: Changes in State or Federal Standards

    A. The Secretary or the State may, from time to time, revise and 
promulgate new or revised performance or reclamation requirements or 
enforcement and administrative procedures. Each party shall, if it is 
determined to be necessary to keep this Agreement in force, change or 
revise its respective laws or regulations or request necessary 
legislative action. Such changes will be made under the procedures of 30 
CFR part 732 for changes to the State Program and under the

[[Page 581]]

procedures of section 501 of SMCRA for changes to the Federal lands 
program.
    B. DEQ and OSM shall provide each other with copies of any changes 
to their respective laws, rules, regulations, and standards pertaining 
to the enforcement and administration of this Agreement.

            Article XV: Changes in Personnel and Organization

    A. DEQ and OSM shall, consistent with 30 CFR part 745, advise each 
other of changes in the organization, structure, functions, duties and 
funds of the offices, departments, divisions, and persons within their 
organizations which could affect administration and enforcement of this 
Agreement. Each shall promptly advise the other in writing of changes in 
key personnel, including the head of a department or division, or 
changes in the functions or duties of the principal offices of the 
program. DEQ and OSM shall advise each other in writing of changes in 
the location of their respective offices, addresses, telephone numbers, 
as well as changes in the names, addresses, and telephone numbers of 
their respective personnel.
    B. Should the State Act be amended to transfer administration of the 
State Act to another agency, all references to DEQ in this Agreement 
shall be deemed to apply to the successor regulatory agency as of the 
date of the transfer. The provisions in this Agreement shall thereafter 
apply to that agency.

                   Article XVI: Reservation of Rights

    In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that have 
not been expressly addressed in this Agreement that the State or the 
Secretary may have under laws other than the Act and the State Program, 
including, but not limited to those listed in appendix A.

    Approved:

    Dated: May 8, 1998.
                                                           Marc Racicot,
                                                    Governor of Montana.

    Dated: July 7, 1998.
                                                          Bruce Babbitt,
                                              Secretary of the Interior.

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations, including 43 CFR part 3480.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations, including 40 CFR part 1500.
    4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations, including 50 CFR part 402.
    5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR part 800.
    6. Native American Graves Protection and Repatriation Act, 25 U.S.C. 
3001 et seq.
    7. The American Indian Religious Freedom Act, 42 U.S.C. 1986 et seq.
    8. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 
470aa et seq.
    9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    11. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    12. The Reservoir Salvage Act of 1960, amended by the Preservation 
of Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et seq.
    13. Executive Order 11593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    14. Executive Order 11988 (May 24, 1977), for flood plain 
protection.
    15. Executive Order 11990 (May 24, 1977), for wetlands protection.
    16. Executive Order 12898 (February 11, 1994) for Federal Actions to 
Address Environmental Justice on Minority Populations and Low Income 
Populations.
    17. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
    18. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
    19. The Constitution of the United States.
    20. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 
1201 et seq.
    21. 30 CFR Chapter VII.
    22. The Constitution of the State of Montana.
    23. Montana Strip and Underground Mine Reclamation Act (MSUMRA), 
part 2, Chapter 4, Title 82, Montana Code Annotated.
    24. Title 26, Chapter 4, Subchapter 3, Administrative Rules of 
Montana.
    25. Montana Environmental Policy Act (MEPA).

[63 FR 40794, July 30, 1998]



PART 931_NEW MEXICO--Table of Contents



Sec.
931.1 Scope.
931.10 State regulatory program approval.
931.11 Conditions of the State program approval.
931.13 Preemption of New Mexico laws and regulations.

[[Page 582]]

931.15 Approval of New Mexico regulatory program amendments.
931.16 Required program amendments.
931.20 Approval of the New Mexico abandoned mine reclamation plan.
931.25 Approval of New Mexico abandoned mine land reclamation plan 
          amendments.
931.26 Required plan amendments.
931.30 State-Federal cooperative agreement.

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

    Source: 45 FR 86489, Dec. 31, 1980, unless otherwise noted.



Sec. 931.1  Scope.

    This part contains all rules applicable only within New Mexico that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.



Sec. 931.10  State regulatory program approval.

    The New Mexico State Program as submitted on February 28, 1980, and 
amended and clarified on June 11, 1980, August 7, 1980, and September 
10, 1980, was conditionally approved, effective December 31, 1980. 
Copies of the approved program together with copies of the letter of the 
New Mexico Energy and Minerals Department, Division of Mining and 
Minerals, agreeing to the conditions in 30 CFR 931.11 are available at:
    (a) Mining and Minerals Division, Energy, Minerals and Natural 
Resources Department, 2040 South Pacheco Street, Santa Fe, NM 87505.
    (b) Albuquerque Field Office, Office of Surface Mining Reclamation 
and Enforcement, 505 Marquette NW., suite 1200, Albuquerque, NM 87102.

[47 FR 47380, Oct. 26, 1982, as amended at 55 FR 17607, Apr. 26, 1990; 
59 FR 17933, Apr. 15, 1994]



Sec. 931.11  Conditions of the State program approval.

    The approval of the State program is subject to the following 
conditions:
    (a)-(j) [Reserved]

[45 FR 86489, Dec. 31, 1980, as amended at 47 FR 23153, 23155, May 27, 
1982; 47 FR 47380, Oct. 26, 1982; 48 FR 28088, June 20, 1983; 49 FR 
30691, Aug. 1, 1984; 71 FR 69195, Nov. 30, 2006]



Sec. 931.13  Preemption of New Mexico laws and regulations.

    Under the authority of sections 505(b) of SMCRA, 30 U.S.C. 1255(b), 
and in accordance with the position taken by the State of New Mexico, 
the following provisions of New Mexico law and regulation are hereby 
preempted and superseded as they may apply to coal exploration and 
surface coal mining and reclamation operations:

    The State Wildlife Conservation Act (17-2-37 to 17-2-46 NMSA 1978) 
to the extent it is inconsistent with provisions of SMCRA related to the 
Endangered Species Act of 1973 (16 USC 1531 et seq.).



Sec. 931.15  Approval of New Mexico regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
February 28, 1982....................  May 27, 1982...........  Procedures for Posting and Publishing Notices of
                                                                 Show Cause Orders.
July 9, 1982.........................  October 26, 1982.......  CSMC 80-1-19-15(d), 80-1-20-71(i), 20-102(a); 80-
                                                                 1-29-12(b), definition of ``Unconsolidated
                                                                 Stream-laid Deposits Holding Streams''.
February 8, 1984.....................  August 1, 1984.........  CSMC 80-1-14-23(a), (b).
June 6, 1984.........................  January 4, 1985........  CSMC 80-1-1-5 definition of roads; 80-1-20-150,
                                                                 151.
June 20, 1984, July 18, 1984.........  January 31, 1985.......  CSMC 80-1-1-11; 80-1-11-30; 80-1-20-103.
August 12, 1987......................  February 11, 1988......  CSMC 80-1-30-12(c) through (l).
September 1, 1988....................  January 30, 1989.......  CSMC 80-2-22-29(p).
June 17, 1987........................  March 9, 1989..........  CSMC 80-1-5-25, -26; 80-1-8-11; 80-1-9-18; 80-1-
                                                                 11-27, 80-1-20-89, -102, -103, -106, -181; 80-1-
                                                                 29-11; 80-1-33 Training, Examination, and
                                                                 Certification of Blasters.
April 18, 1988, October 20, 1988.....  March 17, 1989.........  CSMC 80-1-20-71(b), -81, -83(b), -85, -92(b).

[[Page 583]]

 
February 21, 1989, August 17, 1989...  December 26, 1989......  CSMC 80-1-20-41(d)(1), -42(a)(1).
March 29, 1989, April 26, 1989.......  April 26, 1990.........  CSMC 80-1-20-83(b), -89(d)(2), -103(a)(1); 80-1-
                                                                 29-11(a); 80-1-33-11, -14, -15(e)(1).
May 25, 1989.........................  November 23, 1990......  CSMC 80-1-1-5, definitions of ``affected area,''
                                                                 ``self-bond''; 80-1-8-20; 80-1-9-16; 80-1-14-
                                                                 23(d)(2),-40(a)(2); 80-1-20-97(b), (c); 80-1-31-
                                                                 21 through -24; July 12, 1990 Policy Statement.
July 22, 1989........................  February 26, 1991......  CSMC 80-1-1-5, definition of ``other treatment
                                                                 facilities;'' 80-1-20-41(f), -46, (a), -49.
April 24, 1990.......................  June 21, 1991..........  CSMC 80-1-20-42(a)(8), -133(c).
March 15, 1990.......................  December 31, 1991......  CSMC 80-1-1-5, definitions of ``cumulative
                                                                 impact area,'' ``previously mined area,''
                                                                 ``excess spoil,'' ``impoundment,'' ``coal
                                                                 processing waste,'' ``coal processing waste
                                                                 bank;'' 80-1-2-11(f), -12(b)(2); 80-1-4-15(b);
                                                                 80-1-6-10, -11(b)(5), -12(b)(7), -13(d); 80-1-8-
                                                                 14(b)(1)(vi), -15(c), -16(b)(3), -24, -27(a);
                                                                 80-1-9-13(f), -14(c), -21(b) through (d); 80-1-
                                                                 10-13, (a), (c), (e), -17(a)(1)(i), (6); 80-1-
                                                                 11-11(a)(3), -15(a), (b), -19(c), -27(e); 80-1-
                                                                 13-11(a), -12(c), (d), -18(c)(3), (d), (e); 80-
                                                                 1-20-11(f), -41(a), -43(a), -44(a), (c), -
                                                                 52(a), (b), -57(a)(1), (2), -61 through -68, -
                                                                 71(f), (j), (k), -82(a), -91(c), -97(d)(10), -
                                                                 102(a), (f), (g), -111(c), -112(c), (d); 80-1-
                                                                 24-11(c), -12(a)(1), -15(c)(2) through (6); 80-
                                                                 1-26-12(c); 80-1-29-16(a); 80-1-30-13(d); 80-1-
                                                                 31-17(b)(1), 18(b)(1); Policy Statement for
                                                                 Records and Retention.
July 9, 1991.........................  April 13, 1992.........  CSMC 80-1-20-42(a)(4)(ii), (a)(8).
November 22, 1991....................  June 23, 1992..........  CSMC 80-1-20-72(d), -83(b).
January 16, 1991.....................  December 17, 1993......  CSMC 80-1-1-5, definition of ``owned or
                                                                 controlled and owns and controls;'' 80-1-4-
                                                                 15(b)(2); 80-1-7-13(a) through (j); -14(a)
                                                                 through (d); 80-1-9-21(c), -25(b), (c), (e), -
                                                                 37(a) through (e), -39(b), -40; 80-1-11-17(c),
                                                                 (2), (3), (d), (e), -19(i), -20(a), (b)(1),
                                                                 (i), (iii), (2), (i), (ii), (3), (c), (1)
                                                                 through (4), -24(a), (b), (c), -29(d); 80-1-19-
                                                                 15(c)(2), (3), (4), -17(a), (b); 80-1-20-91(c),
                                                                 -93(a), (c), (d), (e), -116(a), (b)(1), (3),
                                                                 (6), (7), (d) through (d)(3), -117(a) through
                                                                 (d), (1), (2), (3)(i), -121(a), -124, -
                                                                 150(a)(2)(i), (iii), (b)(9), (c), (e)(1),
                                                                 (g)(5), (6), (7), -151(a), (b)(2), (c)(1), (6);
                                                                 80-1-30-11(b), (l); NMSA 69-25A-31.
October 26, 1994.....................  February 15, 1995......  CSMC 80-1-34-1 through 10.
January 22, 1996.....................  May 29, 1996...........  CSMC 80-1-1-5 definitions of ``Applicant/
                                                                 violator system'' or ``AVS,'' ``Federal
                                                                 violation notice,'' ``Ownership or control
                                                                 link,'' ``State violation notice,'' and
                                                                 ``Violation notice;'' ``Drinking, domestic, or
                                                                 residential water supply,'' ``Material
                                                                 damage,'' ``Noncommercial building,''
                                                                 ``Occupied residential dwelling and associated
                                                                 structures,'' ``Replacement of water supply;''
                                                                 ``OSM,'' ``Qualified Laboratory,'' ``Road,''
                                                                 ``SMCRA;'' 80-1-4-15(b)(1); 80-1-7-14(c) (1)
                                                                 through (5); 80-1-9-25(a)(2), (3), (c), -39(a)
                                                                 (1) through (6), (b), (c)(1) through (9); 80-1-
                                                                 11-17(c), (d), -19(i), -20(b)(1), (ii), (3),
                                                                 (c)(1), (2), (d), (e), -24(a), -29(d), -31(a)
                                                                 through (d), -32(a) through (c), -33 (a)
                                                                 through (d), -34(a) through (d); 80-1-19-
                                                                 15(c)(2), (3), (iii), (4); 80-1-20-41(e)(3)(i),
                                                                 -49(d), (e)(1) through (11), (f)(2), (g)(4),
                                                                 (5), -82(a)(4), -89(d)(2), -93(a)(1), -97(b),
                                                                 (c), -116(b)(1), (5), (6), -117, (c)(1), (3),
                                                                 (4), (d)(2), (3)(i), -124(a) through (d), -
                                                                 125(a) through (e), -127, -150(c).
January 6, 1998......................  June 8, 1998...........  19 NMAC 8.2, Subparts 1 through 34
                                                                 (recodification).
March 11, 1996.......................  April 10, 2000.........  19 NMAC 8.2 813.K (1) through (3); 813.L;
                                                                 1106.C; 1412.A(2) (i) through (vii); 2054.A
                                                                 (1), (2), (3), and (5); 2055.C(1); 2076.B; and
                                                                 2077.A.
November 13, 1998....................  September 11, 2000.....  19 NMAC 8.2 107.M(1); 107.O(2); 1107; 909.E(5);
                                                                 918.D; 2017.D, F(2), G(4), and G(5);
                                                                 2065.B(5)(iv); and 2071.A through D.
December 1, 1999.....................  November 2, 2000.......  19 NMAC 8.2 107.I(8); 107.A(20); 507.A(1); 2064;
                                                                 2065.A; 2065.B(1), (2), (3), and (5)(iii); and
                                                                 the Coal Mine Reclamation Program Vegetation
                                                                 Standards guidance document.
September 22, 2000...................  January 18, 2001.......  19 NMAC Parts 1 through 34 (recodification)
November 28, 2001....................  July 15, 2002..........  19.8.1.7.F(5); 19.8.1.7N(2); 19.8.1.7.O(5);
                                                                 19.8.1.7.P(12); 19.8.1.7.Q(1); 19.8.2.201;
                                                                 19.8.2.202.A through H; 19.8.2.203;
                                                                 19.8.3.300.C; 19.8.6.602.A and 603;
                                                                 19.8.7.704.C; 19.8.8.801.B; 19.8.8.802.A;
                                                                 19.8.9.912.A and B; 19.8.11.1106.D;
                                                                 19.8.13.1307; 19.8.14.1412.A; 19.8.14.1415.A;
                                                                 19.8.19.1900.A, C and C(2); 19.8.20.2009.E and
                                                                 E(5); 19.8.20.2057.A; 19.8.20.2058.A;
                                                                 19.8.24.2400.C; 19.8.29.2900.G and H;
                                                                 19.8.31.3107.A; 19.8.32.3200.B; 19.8.32.3203.A
                                                                 and B; 19.8.32.3206.A; and 19.8.35.7 through 14
                                                                 NMAC.
October 27, 2003.....................  April 13, 2004.........  19.8.1.7.P(8) and (9); 19.8.1.7.T(2);
                                                                 19.8.5.506.A, B, D, E, F, and G;
                                                                 19.8.12.1200.A; 19.8.13.1300.B;
                                                                 19.8.13.1301.A(1), B, C, and E(1) and E(2);
                                                                 19.8.20.2073 (C), (D), (E), and (F) NMAC

[[Page 584]]

 
November 18, 2005, as revised on       October 19, 2006.......  NMSA, sections 69-25A-18.A, B, C, D and F,
 March 27, 2006.                                                 concerning the decisions of the Director and
                                                                 appeals; NMSA, sections 69-25A-29.A, B, C, D,
                                                                 and F, concerning the administrative review of
                                                                 a notice or order by the Director; NMSA,
                                                                 sections 69-25A-29.G, concerning deletion of
                                                                 statutes allowing for review by the Commission
                                                                 of decisions of the Director; NMSA, section 69-
                                                                 25A-30.A, concerning judicial review of final
                                                                 decisions by the Director; NMSA, sections 69-
                                                                 25A-36, concerning termination of agency life;
                                                                 NMAC, sections 19.8.11.1100.A(3), D, and D(2),
                                                                 concerning public notices of filing of permit
                                                                 applications; NMAC, section 19.8.11.1101.C,
                                                                 concerning opportunity for submission of
                                                                 written comments on permit applications; NMAC,
                                                                 sections 19.8.11.1102.A and B(2), concerning
                                                                 the right to file written objections; NMAC,
                                                                 sections 19.8.11.1103.A(3), B, B(1), D, E(1),
                                                                 and F, concerning hearings and conferences;
                                                                 NMAC, section 19.8.11.1104.B, concerning public
                                                                 availability of information in permit
                                                                 applications on file with the Director; NMAC,
                                                                 sections 19.8.11.1105.C(2), D, E, and F,
                                                                 concerning review of permit applications; NMAC,
                                                                 sections 19.8.11.1106.C, D(3), F, G(1) and (2),
                                                                 and N, concerning criteria for permit approval
                                                                 or denial; NMAC, sections 19.8.11.1107.A, B,
                                                                 B(1), B(1)(b), B(3), C, D, E, and F, concerning
                                                                 general procedures for improvidently issued
                                                                 permits; NMAC, section 19.8.11.1108.B,
                                                                 concerning existing structures and criteria for
                                                                 permit approval or denial; NMAC, sections
                                                                 19.8.11.1109.A(4), B, B(1) and (2), B(2)(b),
                                                                 B(3), and D, concerning permit approval or
                                                                 denial actions; NMAC, section
                                                                 19.8.11.1110.A(1), concerning the rescission
                                                                 process for improvidently issued permits; NMAC,
                                                                 section 19.8.11.1111.B, concerning permit
                                                                 terms; NMAC, section 19.8.11.1113.C(2),
                                                                 concerning conditions of permit for
                                                                 environment, public health and safety; NMAC,
                                                                 section 19.8.11.1114, concerning conformance of
                                                                 permit; NMAC, sections 19.8.11.1115.A, B, and
                                                                 C, concerning verification of ownership or
                                                                 control application information; NMAC, sections
                                                                 19.8.11.1116.B and B(2)(b), concerning review
                                                                 of ownership or control and violation
                                                                 information; NMAC, sections 19.8.11.1117.A,
                                                                 A(1), (2) and (3), B, C, D, D(1) and (2), and
                                                                 D(2)(a) and (b), concerning procedures for
                                                                 challenging ownership or control links shown in
                                                                 the applicant violator system; NMAC, sections
                                                                 19.8.11.1118.B, B(1), (2) and (3), B(3)(1), C,
                                                                 C(1)(a) through (c), and C(2), concerning
                                                                 standards for challenging ownership or control
                                                                 links and the status of violations; NMAC,
                                                                 section 19.8.12.1201, deletion of rules
                                                                 allowing for review by the Commission of
                                                                 decisions of the Director; NMAC, sections
                                                                 19.8.12.1202.A, concerning judicial review of
                                                                 final decisions by the Director; NMAC, sections
                                                                 19.8.12.1202.B, concerning judicial review of
                                                                 decisions by the Commission; and NMAC, sections
                                                                 19.8.12.1203.A through L, concerning formal
                                                                 review of notices of violations, cessation
                                                                 orders, and show cause orders.
November 18, 2005....................  November 30, 2006......  NMSA, sections 69-25A-29.F, concerning award of
                                                                 legal costs and expenses; and NMAC, sections
                                                                 19.8.12.1204.A through G, concerning award of
                                                                 legal costs and expenses, including attorney
                                                                 fees.
November 28, 2007....................  November 18, 2008......  19 NMAC Parts 1 through 35 (recodification),
                                                                 19.8.1.7.G(1); 19.8.11.1100.D(1);
                                                                 19.8.11.1102.A; 19.8.11.1103.A; 19.8.11.1109.B
                                                                 and C; 19.8.13.1301.E(1) and E(2)(b);
                                                                 19.8.13.1307.B(2); 19.8.14.1412.A(2)(f);
                                                                 19.8.14.1412.F; 19.8.20.2065.A and B(1);
                                                                 19.8.20.2068; 19.8.30.3000; 19.8.31.3108.B;
                                                                 19.8.31.3110.B; 19.8.5.504.D; 19.8.7.701.F;
                                                                 19.8.8.812.D; 19.8.11.1100.B(1), (2), (3), and
                                                                 (4), D(5), E(3), and F; 19.8.11.1103.B, E, and
                                                                 F; 19.8.13.1301.E(2)(a); 19.8.31.3106.B(3)(a).
----------------------------------------------------------------------------------------------------------------


[62 FR 9947, Mar. 5, 1997, as amended at 63 FR 31113, June 8, 1998; 65 
FR 18894, Apr. 10, 2000; 65 FR 54794, Sept. 11, 2000; 65 FR 65778, Nov. 
2, 2000; 66 FR 4673, Jan. 18, 2001; 67 FR 46384, July 15, 2002; 69 FR 
19325, Apr. 13, 2004; 71 FR 61685, Oct. 19, 2006; 71 FR 69195, Nov. 30, 
2006; 73 FR 68345, Nov. 18, 2008]



Sec. 931.16  Required program amendments.

    Pursuant to 30 CFR 732.17, New Mexico is required to submit for 
OSM's approval the following proposed program amendments by the dates 
specified.
    (a)-(aa) [Reserved]

[55 FR 48841, Nov. 23, 1990, as amended at 56 FR 28486, June 21, 1991; 
56 FR 67527, Dec. 31, 1991; 57 FR 12723, Apr. 13, 1992; 58 FR 65929, 
Dec. 17, 1993; 61 FR 26836, May 29, 1996; 65 FR 18894, Apr. 10, 2000; 65 
FR 54795, Sept. 11, 2000; 65 FR 65779, Nov. 2, 2000; 67 FR 46385, July 
15, 2002]

[[Page 585]]



Sec. 931.20  Approval of the New Mexico abandoned mine reclamation plan.

    The New Mexico Abandoned Mine Reclamation Plan as submitted on 
September 29, 1980, and amended February 4, 1981, is approved. Copies of 
the approved program are available at the following locations:
    (a) Albuquerque Field Office, Office of Surface Mining Reclamation 
and Enforcement, 505 Marquette NW., suite 1200, Albuquerque, NM 87102.
    (b) Mining and Minerals Division, Energy, Minerals and Natural 
Resources Department, 2040 South Pacheco Street, Santa Fe, NM 87505.

[59 FR 17933, Apr. 15, 1994]



Sec. 931.25  Approval of New Mexico abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
July 24, 1995........................  July 24, 1996..........  Plan Sec. Sec.  874.16, 875.16, .20,
                                                                 886.23(c); NMSA 69-25B-3.A, C, D, -4, -6.B, -7,
                                                                 -8.
----------------------------------------------------------------------------------------------------------------


[62 FR 9948, Mar. 5, 1997]



Sec. 931.26  Required plan amendments.

    Pursuant to 30 CFR 884.15, New Mexico is required to submit for 
OSM's approval the following proposed plan amendments by the date 
specified.
    (a) By January 21, 1997, New Mexico shall revise NMSA 69-25B-2 and 
3.B to provide references to August 3, 1977, the effective date of 
SMCRA, or otherwise modify its plan, to ensure that the reclamation of 
post-August 3, 1977, sites is specifically provided for with counterpart 
provisions to sections 402(g)(4) and 403(b)(2).
    (b) By January 21, 1997, New Mexico shall further revise NMSA 69-
25B-3.B to provide a definition for ``eligible lands and water'' that is 
consistent with the term as defined at section 404 of SMCRA.
    (c) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.A, or 
otherwise modify its plan, to reflect the same expenditure priorities as 
counterpart section 403(a) of SMCRA.
    (d) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.A by 
deleting NMSA 69-25B-6.A(4) and item No. I (d) of the ``Ranking and 
Selection'' section of its plan.
    (e) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.C by 
reinserting the word ``coal.''

[61 FR 38381, July 24, 1996]



Sec. 931.30  State-Federal cooperative agreement.

    The State of New Mexico (State) acting through the Governor and the 
Department of the Interior (Department) acting through the Secretary 
enter into a Cooperative Agreement (Agreement) to read as follows:

                   Article I: Introduction and Purpose

    1. This Agreement is authorized by section 523(c) of the Surface 
Mining Control and Reclamation Act (Federal Act), 30 U.S.C. 1273(c), 
which allows a State with a permanent regulatory program approved under 
30 U.S.C. 1253 to elect to enter into an agreement with the Secretary 
for the regulation and control of surface coal mining and reclamation 
operations on Federal lands and by section 69-25A-27 NMSA 1978 of the 
Surface Mining Act (State Act).
    The Agreement provides for State regulation of surface coal mining 
and reclamation operations on Federal lands within the State consistent 
with the State and Federal Acts, the State program (Program) (30 CFR 
part 931) and the Federal Lands Program (30 CFR parts 740-745). The term 
``Federal lands'' is

[[Page 586]]

defined in the Federal Act and State and Federal regulations.
    2. The purpose of this Agreement is to (a) foster State-Federal 
cooperation in the regulation of surface coal mining and reclamation 
operations; (b) eliminate intergovernmental overlap and duplication; and 
(c) provide uniformity by effective application of the State program to 
Federal lands in New Mexico.

                       Article II: Effective Date

    3. This Cooperative Agreement is effective following signing by the 
Secretary and the Governor, and upon publication as a final rule in the 
Federal Register. This Agreement shall remain in effect until terminated 
as provided in Article XII.

                           Article III: Scope

    4. This Agreement makes the laws, regulations, terms and conditions 
of the Program conditionally approved effective December 31, 1980 (30 
CFR part 931), or as hereinafter amended in accordance with 30 CFR 
732.17, applicable to Federal lands within the State except as otherwise 
stated in this Agreement, the Federal Act, 30 CFR part 745 or other 
applicable Federal laws. Orders and decisions issued in accordance with 
the Program by the Mining and Minerals Division (Mining and Minerals) of 
the New Mexico Energy and Minerals Department that are appealable shall 
be appealed to the State reviewing authority. Orders and decisions 
issued by the Department that are appealable shall be appealed to the 
Department of the Interior's Office of Hearings and Appeals.

                      Article IV: Responsibilities

    5. Mining and Minerals is and shall continue to be the sole agency 
responsible for administering this cooperative agreement on behalf of 
the Governor on Federal lands throughout the State. Mining and Minerals 
has and shall continue to have authority under State law to carry out 
this Agreement. The Office of Surface Mining (OSM) of the Department of 
the Interior shall administer this Agreement of behalf of the Secretary 
in accordance with the regulations in 30 CFR Chapter VII.
    6. To eliminate duplication and overlap, the State will assume the 
primary responsibility for the review and analysis of permit 
applications and applications for permit revisions or renewals, subject 
to legal restrictions, including those limitations in 30 U.S.C. 1272(b) 
and 1273 and in 42 U.S.C. 4321-4335. The State shall have the necessary 
personnel to fully implement this Agreement in accordance with the 
provisions of the Federal Act and the Program.

                           Article V: Funding

    7. The State will devote adequate funds to the administration and 
enforcement of this Agreement of Federal lands within the State. If this 
Agreement has been carried out, and subject to appropriations, the 
Department shall provide the State with funds to defay the costs 
associated with carrying out responsibilities under this Agreement, as 
provided in 30 U.S.C. 1295(c) and 30 CFR 735.16. Reimbursement shall be 
in the form of annual grants, and applications for said grants shall be 
processed and awarded in a timely and prompt manner.
    If sufficient funds have not been appropriated to OSM, OSM and 
Mining and Minerals shall promptly meet to decide on appropriate 
measures that will insure that mining operations are regulated in 
accordance with the Program.
    Funds provided to the State shall be adjusted in accordance with 
Office of Management and Budget (OMB) Circular A-102, Attachment E.

                 Article VI: Reports, Fees and Equipment

    8. Mining and Minerals shall make annual reports to OSM containing 
information respecting its compliance with the terms of this Agreement 
pursuant to 30 CFR 745.12(c). The State and OSM shall exchange, upon 
request, except where prohibited by Federal law, information developed 
under this Agreement. OSM shall provide Mining and Minerals with a copy 
of any final evaluation report prepared concerning State administration 
and enforcement of this Agreement.
    9. The amount of the fee accompanying an application for a permit 
shall be determined in accordance with New Mexico Coal Surface Mining 
Commission Rule 80-1, part 5-25. All permit fees shall be retained by 
the State and deposited with the State Treasurer in the Oil and Gas 
Conservation Fund. The Financial Status Report submitted pursuant to 30 
CFR 735.26 shall include a report of the amount of fees collected during 
the prior State fiscal year.
    10. Mining and Minerals will assure itself access to equipment, 
laboratories and facilities with which all inspections, investigations, 
studies, tests and analyses can be performed, and which are necessary to 
carry out the requirements of this Agreement.

                 Article VII: Permit Application Package

    11. Mining and Minerals and OSM shall require an operator on Federal 
lands to submit a permit application package or an application for a 
permit revision or renewal in an appropriate number of copies to Mining 
and Minerals. Any documentation or information submitted by the operator 
for the sole purpose of complying with the 3-year requirement of section 
7(c) of the Mineral Leasing

[[Page 587]]

Act of 1920, 30 U.S.C. 181 et seq., will be forwarded to the Minerals 
Management Service (MMS). If such documentation is submitted as part of 
a permit application package, a copy of the entire package will be 
forwarded to MMS.
    The permit application package or application for a permit revision 
or renewal shall be in the form required by Mining and Minerals, shall 
satisfy the requirements of 30 CFR 741.12(b) and 30 CFR 741.13, and 
shall include the information required by, or necessary for, Mining and 
Minerals and the Secretary to make a determination of compliance with:
    (a) Section 69-25A-1, et seq., NMSA 1978;
    (b) New Mexico Coal Surface Mining Commission Rule 80-1;
    (c) Applicable terms and conditions of the Federal coal lease;
    (d) Applicable requirements of the 30 CFR part 211 regulations 
pertaining to the Mineral Leasing Act requirements; and
    (e) Applicable requirements of the approved Program and other 
Federal laws including, but not limited to, those identified in 30 CFR 
Chapter VII, Subchapter D and appendix A of this Agreement.
    12. Mining and Minerals shall assume the primary authority pursuant 
to sections 510(a) and 523(c) of the Federal Act for the analysis, 
review, and approval of the permit application or application for a 
permit revision or renewal according to the standards of the Program. 
OSM shall assist Mining and Minerals in the analysis of the permit 
application or application for a permit revision or renewal according to 
the procedures set forth in appendix B. The Department shall 
concurrently carry out its responsibilities under the Mineral Leasing 
Act, as amended (MLA), the National Environmental Policy Act (NEPA), and 
other public laws (including but not limited to those in appendix A) 
that cannot, under the Federal Act, be delegated to the State. The 
Department shall carry out these responsibilities according to the 
procedures set forth in appendix B so as to avoid, to the maximum extent 
possible, duplication of the responsibilities of the State set forth in 
this Agreement and the State Program. The Secretary will consider the 
information in the permit application package and, where appropriate, 
make the decisions required by the Federal Act, MLA, NEPA and other 
public laws listed above.
    13. Mining and Minerals shall be the primary point of contact with 
the operator. The Department will independently initiate contacts with 
the applicant regarding permit application packages or applications for 
a permit revision or renewal only where necessary to carry out its 
statutory responsibilities. When such action may generate correspondence 
with the applicant, a copy of all correspondence with the applicant that 
may have a bearing on decisions regarding the mining operation shall be 
sent to Mining and Minerals.
    14. Mining and Minerals shall maintain a file of all original 
correspondence with the applicant and any information received from the 
applicant which may have a bearing on decisions regarding the permit 
application package or application for a permit revision or renewal. At 
the request of the Secretary or his designated agents, Mining and 
Minerals shall make available the Mining and Minerals files and send 
copies of such correspondence and information when requested to do so.
    15. To the fullest extent allowed by State and Federal law, OSM and 
Mining and Minerals shall cooperate so that duplication will be 
eliminated in conducting the review and analysis of the permit 
application package or application for a permit revision or renewal.
    16. Mining and Minerals will review the permit application or 
application for a permit revision or renewal under sections 11-11 
through 11-29 of the New Mexico Coal Surface Mining Commission Rule 80-
1.

                        Article VIII: Inspections

    17. Mining and Minerals shall conduct inspections on Federal lands 
and prepare and file inspection reports in accordance with its Program.
    18. Mining and Minerals shall, subsequent to conducting any 
inspection on Federal lands, file with OSM on a timely basis, an 
inspection report adequately describing (1) the general conditions of 
the lands; (2) the manner in which the operations are being conducted; 
and (3) whether the operator is complying with applicable performance 
and reclamation requirements.
    19. Mining and Minerals will be the point of contact and primary 
inspection authority in dealing with the operator concerning operations 
and compliance with the requirements covered by this Agreement, except 
as described hereinafter. Nothing in this Agreement shall prevent 
inspections by authorized Federal agencies for purposes other than those 
covered by this Agreement.
    20. The Department may conduct any inspections necessary to comply 
with 30 CFR parts 842 and 743.
    21. Except as provided below, the Secretary shall give Mining and 
Minerals reasonable notice of his intent to conduct an inspection in 
order to provide State inspectors an opportunity to join in the 
inspection. The Secretary reserves the right to conduct inspections 
without prior notice to Mining and Minerals to carry out his 
responsibilities under the Federal Act.

[[Page 588]]

                         Article IX: Enforcement

    22. Mining and Minerals shall be the primary enforcement authority 
under the Federal Act concerning compliance with the requirements of 
this Agreement and the Program. Enforcement authority of the Secretary 
under other laws and orders including, but not limited to, those listed 
in appendix A is reserved to the Secretary.
    23. During any joint inspection by OSM and Mining and Minerals, 
Mining and Minerals shall have primary responsibility for enforcement 
procedures, including issuance of orders of cessation, notices of 
violation and assessment of penalties. OSM and Mining and Minerals shall 
consult prior to issuance of any decision to suspend or revoke a permit.
    24. Mining and Minerals and OSM shall promptly notify each other of 
all violations of applicable laws, regulations, orders, approved mining 
plans and permits subject to this Agreement and of all actions taken 
with respect to such violations.
    25. During any inspection made solely by OSM or any joint inspection 
where Mining and Minerals and OSM fail to agree regarding the propriety 
of any particular enforcement action, OSM may take any enforcement 
action necessary to comply with 30 CFR parts 843 and 845.
    Such enforcement action shall be based on the performance standards 
included in the regulations of the Program, and the procedures and 
penalty system contained in 30 CFR parts 843 and 845. This Agreement 
does not limit the Department's authority to enforce violations of 
standards and requirements of Federal laws other than the Federal Act.
    26. Personnel of the State and the Department shall be mutually 
available to serve as witnesses in enforcement actions taken by either 
party.

                            Article X: Bonds

    27. For all surface coal mines on Federal lands, Mining and Minerals 
and the Secretary shall require all operators to submit a single 
performance bond to cover the operator's responsibilities under the 
Federal Act and the Program, payable to the State, and if required by 
Federal regulations in Subchapter D, the United States. The performance 
bond shall be of sufficient amount to comply with the requirements of 
both State and Federal law and release of the bond shall be conditioned 
upon compliance with all applicable State and Federal requirements. If 
the cooperative agreement is terminated, the bonds will revert to being 
payable only to the United States to the extent that Federal lands are 
involved. Submission of a performance bond does not satisfy the 
requirements for a Federal lease bond required by 43 CFR 3474 or a 
lessee protection bond required in addition to a performance bond, in 
certain circumstances, by section 715 of the Federal Act.
    28. Prior to releasing the operator from an obligation under the 
performance bond required by the Program for any Federal lands, Mining 
and Minerals shall obtain the consent of OSM. Mining and Minerals shall 
also advise OSM of adjustments to the performance bond.
    29. The operator's performance bond shall be subject to forfeiture 
with the consent of the Department, in accordance with the procedures 
and requirements of the Program.

 Article XI: Designating Land Areas Unsuitable for All or Certain Types 
                         of Surface Coal Mining

    30. Mining and Minerals and the Director shall cooperate with each 
other in the review and processing of petitions to designate lands as 
unsuitable for surface coal mining operations. When either agency 
receives a petition that could impact adjacent Federal or non-Federal 
lands, the agency receiving the petition shall (1) notify the other of 
receipt and of the anticipated scheduled for reaching a decision; and 
(2) request and fully consider data, information and the views of the 
other.
    The authority to designate State and private lands as unsuitable for 
mining is reserved to the State. The authority to designate Federal 
lands as unsuitable for mining is reserved to the Secretary or his 
designated representative.

            Article XII: Termination of Cooperative Agreement

    31. This Agreement may be terminated by the State or the Department 
under the provisions of 30 CFR 745.15.

          Article XIII: Reinstatement of Cooperative Agreement

    32. If this Agreement has been terminated in whole or in part it may 
be reinstated under the provisions of 30 CFR 745.16.

            Article XIV: Amendments of Cooperative Agreement

    33. This Agreement may be amended by mutual agreement of the State 
and the Department. An amendment proposed by one party shall be 
submitted to the other with a statement of the reasons for such proposed 
amendment. The amendment shall be adopted after Federal rulemaking in 
accordance with 30 CFR 745.11. The party to whom the proposed amendment 
is submitted shall signify its acceptance or rejection of the proposed 
amendment, and if rejected shall state the reasons for rejection.

[[Page 589]]

            Article XV: Changes in State or Federal Standards

    34. The Department or the State may from time to time promulgate new 
or revised performance or reclamation requirements or enforcement and 
administration procedures. Each party shall, it it determines it to be 
necessary to keep this Agreement in force, change or revise its 
regulations and request necessary legislative action. Such changes shall 
be made under the procedures of 30 CFR part 732 for changes to the State 
Program, and under the procedures of section 501 of the Federal Act for 
changes to the Federal Lands Program.
    35. The State and the Department shall provide each other with 
copies of any changes to their respective laws, rules, regulations and 
standards pertaining to the enforcement and administration of this 
Agreement.

           Article XVI: Changes in Personnel and Organization

    36. The State and the Department shall, consistent with 30 CFR 
745.12, advise each other of changes in the organization, structure, 
functions, duties and funds of the offices, departments, divisions and 
persons within their organizations. Each shall promptly advise the other 
in writing of changes in key personnel, including the head of a 
department or division, or changes in the functions or duties of persons 
occupying the principal offices within the structure of the Program. The 
State and the Department shall advise each other in writing of changes 
in the location of offices, addresses, telephone numbers and changes in 
the names, locations and telephone numbers of their respective mine 
inspectors and the area within the State for which such inspectors are 
responsible.

                        Article XVII: Definitions

    37. Terms and phrases used in this Agreement which are defined in 
the Federal Act, 30 CFR 700, 701, and 740, and defined in the New Mexico 
Surface Mining Act (69-25A-1, et seq., NMSA 1978) and the rules and 
regulations promulgated pursuant to that Act, shall be given the 
meanings set forth in said definitions. Where there is a conflict 
between the above referenced State and Federal definitions, the 
definitions used in the approved Program will apply, except in the case 
of a term which defines the Secretary's remaining responsibilities under 
the Federal Act and other laws.

                  Article XVIII. Reservation of Rights

    38. In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that have 
not been expressly addressed in this Agreement that the State or the 
Secretary may have under other laws or regulations, including but not 
limited to those listed in appendix A.

    Dated: December 7, 1982.

                                                             Bruce King,
                                                 Governor of New Mexico.
    Dated: November 24, 1982.

                                                          James G. Watt,
                                              Secretary of the Interior.

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701, et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181, et seq., and 
implementing regulations including 30 CFR part 211.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321, et 
seq., and implementing regulations including 40 CFR part 1500 et seq.
    4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations including 50 CFR part 402.
    5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations including 36 CFR part 800.
    6. The Clean Air Act, 42 U.S.C. 7401, et seq., and implementing 
regulations.
    7. The Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., 
and implementing regulations.
    8. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    9. The Reservoir Salvage Act of 1960, as amended by the Preservation 
of Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et seq.
    10. Executive Order 11593, Cultural Resource Inventories on Federal 
Lands.
    11. Executive Order 11988 for Flood Plain Protection. Executive 
Order 11990 for Wetlands Protection.
    12. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351, et 
seq., and the implementing regulations.
    13. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291, et seq.
    14. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 
470aa et seq.
    15. The Constitution of the United States.
    16. The Constitution of the State and State law.

[[Page 590]]

   Appendix B--Procedure for Cooperative Review of Permit Application 
 Packages and Applications for Permit Revisions or Renewals for Federal 
                        Coal Mines in New Mexico

    I: Point of Contact and Coordination During the Review of Permit 
 Application Packages and Applications for Permit Revisions and Renewals

    A. The New Mexico Mining and Minerals Division (Mining and Minerals) 
will:
    1. Be the point of contact and coordinate communications with the 
applicant on issues concerned with the development, review and approval 
of permit application packages or applications for permit revisions or 
renewals, except on issues concerned with the requirements of the 
Mineral Leasing Act of 1920 (MLA), 30 U.S.C. 181, et seq., or National 
Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and the 
requirements of other Federal laws not addressed in the applications.
    2. Communicate with the applicant on issues of concern to the 
appropriate Federal land management agency (FLMA) and immediately advise 
FLMA and OSM of such issues and communication.
    3. Communicate with the applicant on issues of concern to the Office 
of Surface Mining (OSM), and immediately advise OSM of such issues and 
communications.
    4. Communicate with the applicant on issues of concern to the 
Minerals Management Service (MMS) and immediately advise MMS and OSM of 
such issues and communications as they pertain to the application.
    5. Communicate with the applicant on issues of concern to other 
agencies within the Department of the Interior, as appropriate, and 
immediately advise such agencies of such issues and communications.
    6. Provide OSM with a copy of each apparent completeness review upon 
completion.
    B. MMS will:
    1. Receive any documentation required by the 30 CFR part 211 
regulations.
    2. Be the point of contact with the applicant on issues concerned 
exclusively with the 30 CFR part 211 regulations.
    3. Provide Mining and Minerals and OSM with copies of pertinent 
correspondence.
    C. OSM will: Be responsible for ensuring that any information OSM 
receives which has a bearing on decisions regarding the permit 
application package or application for a permit revision or renewal is 
sent promptly to Mining and Minerals.

    II: Receipt and Distribution of Permit Application Packages and 
             Applications for Permit Revisions and Renewals

    A. Mining and Minerals will:
    1. Receive the permit application package, the application for a 
permit revision or renewal or the correspondence from the applicant and 
transmit an appropriate number of copies to FLMA, MMS, OSM and other 
agencies specified by the Secretary after the application has been 
filed. Such transmittal will include a request for a conference on the 
submissions, as needed.
    2. Identify an application manger responsible for coordinating the 
review and notify OSM, MMS and FLMA as necessary.
    3. Upon receipt of an application, meet with OSM to discuss the 
application and agree upon a schedule, and, when Mining and Minerals 
requests assistance, agree upon a work plan with OSM.
    B. OSM, MMS and FLMA will: Identify an application manager upon 
receipt of the application and notify Mining and Minerals of the 
identity of the application manager.

                   III: Determination of Completeness

    Mining and Minerals will:
    1. Determine the completeness of a permit application package or 
application for a permit revision or renewal.
    2. Issue public notice of the availability of complete applications 
for the public to review in accordance with the public review procedure 
set forth in New Mexico Coal Surface Mining Commission Rule 80-1, part 
11.

    IV: Determination of Preliminary Findings of Substantive Adequacy

    A. Mining and Minerals will:
    1. Consult with MMS, FLMA, OSM, and other Federal agencies specified 
by the Secretary to review the filed application for preliminary 
findings of substantive adequacy (henceforth ``preliminary findings'') 
and to assess the need for additional data requirements in their 
respective areas of responsibility.
    2. Arrange meetings and field examinations with the interested 
parties as necessary to determine the preliminary findings.
    3. Advise the applicant of the preliminary findings upon the advice 
and consent of FLMA, MMS, OSM and other Federal agencies specified by 
the Secretary.
    4. Transmit the letter(s) informing the applicant of the preliminary 
findings, with copies to FLMA, OSM, MMS and other agencies specified by 
the Secretary.
    5. When requested, furnish the Director with copies of 
correspondence with the applicant and all information received from the 
applicant.
    B. OSM will:
    1. Review the permit application package or application for a permit 
revision or renewal for preliminary findings and, at the request of 
Mining and Minerals, provide technical assistance as possible.
    2. Furnish Mining and Minerals with preliminary findings within 45 
calendar days of receipt of the permit application package or

[[Page 591]]

application for a permit revision or renewal and specify any 
requirements for additional data.
    3. No later then 30 days from notification of completeness, initiate 
NEPA compliance procedures and determine the need for an Environmental 
Assessment or an Environmental Impact Statement.
    4. Publish notices of NEPA documents as required by Federal law and 
regulations.
    5. Participate, as arranged, in meetings and field examinations.
    C. FLMA will:
    1. Review the permit application package or application for permit 
revision or renewal for preliminary findings as to whether the 
applicant's proposed postmining land use is consistent with FLMA's land 
use plan, and the adequacy of measures to protect Federal resources not 
covered by the rights granted by the Federal coal lease.
    2. Furnish Mining and Minerals with preliminary findings within 45 
calendar days of receipt of the permit application package or 
application for a permit revision or renewal and specify any 
requirements for additional data.
    3. Participate, as arranged, in meetings and field examinations.
    D. MMS will:
    1. Review the permit application package or application for a permit 
revision or renewal in regard to MLA requirements.
    2. Furnish Mining and Minerals with the preliminary findings within 
45 calendar days of receipt of the permit application package or 
application for a permit revision or renewal and specify any 
requirements for additional data.
    3. Participate, as arranged, in meetings and field examinations.
    E. Other agencies specified by the Secretary will:
    1. Review the permit application package or application for a permit 
revision or renewal for preliminary findings in regard to their 
responsibilities under law.
    2. Furnish Mining and Minerals with preliminary findings within 45 
calendar days of receipt of the application and specify any requirements 
for additional data.
    3. Participate, as arranged, in meetings and field examinations.

          V: Findings of Technical Adequacy and NEPA Compliance

    A. Mining and Minerals will:
    1. Develop and coordinate the technical review of permit application 
packages or applications for a permit revision or renewal. The review 
will include representatives of Mining and Minerals, MMS, FLMA, OSM and 
other Federal agencies specified by the Secretary as appropriate.
    2. Coordinate with OSM, for the purpose of eliminating duplication, 
and provide to OSM a complete technical analysis of the permit 
application or application for permit revision or renewal pursuant to 
the Federal Act and the Program that will serve as the technical base 
for an Environmental Assessment (EA) or an Environmental Impact 
Statement (EIS) as may be required by NEPA for each permit application 
package or application for a permit revision or renewal.
    3. Coordinate with MMS, for the purpose of eliminating duplication, 
to conduct a technical analysis that will assist MMS in making findings 
as may be necessary to determine compliance with the MLA.
    4. Coordinate with FLMA, for the purpose of eliminating duplication, 
to conduct a technical analysis of issues regarding postmining land use 
and the adequacy of measures to protect Federal resources not covered by 
the rights granted by the Federal coal lease.
    5. Coordinate with other agencies specified by the Secretary, for 
the purpose of eliminating duplication, to conduct technical analyses of 
issues within their jurisdiction.
    B. OSM will:
    1. At the request of Mining and Minerals, assist as possible in the 
review of the permit application package or application for a permit 
revision or renewal for technical adequacy in a timely manner as set 
forth by a schedule developed by Mining and Minerals in cooperation with 
OSM.
    2. Take the leadership role for the development of the EA and/or 
EIS.
    C. MMS will:
    1. Review the permit application package or application for a permit 
revision or renewal for compliance with 30 CFR part 211.
    2. Furnish Mining and Minerals, through OSM, findings on compliance 
with 30 CFR part 211 in a timely manner as set forth by a schedule 
developed by Mining and Minerals in cooperation with MMS.
    3. Participate, as arranged, in meetings and field examinations.
    D. FLMA will:
    1. Determine whether the permit application package or application 
for a permit revision or renewal provides for postmining land use 
consistent with FLMA's land use plan and determine the adequacy of 
measures to protect Federal resources not covered by the rights granted 
by the Federal coal lease.
    2. Furnish Mining and Minerals, through OSM, its determination on 
the technical adequacy in a timely manner as set forth by a schedule 
developed by Mining and Minerals in cooperation with FLMA.
    3. Participate, as arranged, in meetings and field examinations.
    E. Other agencies specified by the Secretary will:
    1. Review the permit application package or application for a permit 
revision or renewal in regard to their responsibilities under law.

[[Page 592]]

    2. Furnish Mining and Minerals, through OSM, findings on compliance 
with other applicable Federal laws and regulations in a timely manner as 
set forth by a schedule developed in cooperation with Mining and 
Minerals.
    3. Participate, as arranged, in meetings and field examinations.

        VI: Preparation and Transmittal of the Decision Document

    A. Mining and Minerals will:
    1. Assist OSM in the preparation of the decision document for the 
permit application package or application for a permit revision or 
renewal, unless the work plan and schedule agreed upon provide 
otherwise. Mining and Minerals will provide OSM with:
    a. A recommendation on the proposal;
    b. A finding of compliance with the Program as approved by the 
Secretary and the regulations promulgated thereunder, which will consist 
of an analysis of critical issues raised during the course of the review 
and the resolution of those issues; and
    c. All other specific written findings required under section 69-
25A-14, NMSA 1978.
    2. Consider the comments of OSM, MMS and FLMA and other appropriate 
Federal agencies when assisting in the preparation of the decision 
document.
    B. OSM will:
    1. Prepare the approved NEPA compliance document.
    2. Prepare the decision document with the assistance of Mining and 
Minerals unless the work plan and schedule agreed upon provide 
otherwise. The decision document shall contain the following:
    a. An analysis of the enviromental impacts of the proposal and 
alternatives to the proposal, prepared in compliance with NEPA, the 
Council on Environmental Quality regulations and OSM's NEPA compliance 
handbook;
    b. The determinations and recommendations of FLMA;
    c. The memorandum of recommendation from the MMS to the Assistant 
Secretary of the Interior for Energy and Minerals, with regard to MLA 
requirements;
    d. The incorporation of the comments of other agencies specified by 
the Secretary, as appropriate; and
    e. The relevant information submitted by Mining and Minerals as 
specified by A.1 of this Article.
    3. Transmit the decision document to the Secretary.
    C. FLMA will: Provide written concurrence on the final decision 
document to OSM with regard to postmining land use and the adequacy of 
measures to protect Federal resources not covered by rights granted by 
any Federal coal lease.
    D. MMS will: Provide written concurrence on the final decision 
document to OSM with regard to its responsibilities.
    E. Other agencies will: Provide written concurrence on the final 
decision document to OSM with regard to their responsibilities.

                    VII: Decision and Permit Issuance

    A. The Secretary will:
    1. Evaluate the analysis, conclusions, and recommendations in the 
decision document as necessary to determine whether he approves or 
disapproves.
    2. Inform Mining and Minerals immediately of his decision. Where the 
Secretary decides not to approve, the reasons for not approving, and 
recommendations for remedy shall be specified.
    B. Mining and Minerals will:
    1. Issue the permit, revised permit, or permit renewal for surface 
coal mining and reclamation operations after making a finding of 
compliance with the approved Program in the manner set forth in this 
Agreement.
    2. Advise the operator, in the permit, of the necessity of obtaining 
Secretarial approval for those statutory requirements which have not 
been delegated to the State prior to directly affecting Federal lands 
and, if necessary, prohibit the operator from directly affecting Federal 
lands under the permit, revised permit, or permit renewal until after 
the Secretary's approval of the mining plan has been received.
    3. Reserve the right to modify the permit, revised permit or permit 
renewal to conform with the Secretary's decision if a permit, revised 
permit, or permit renewal has been issued prior to receipt of the 
Secretary's decision.

                      VIII: Resolution of Conflict

    A. Every effort will be made to resolve errors, omissions and 
conflicts on data and data analysis at the State and field level.
    B. Areas of disagreement between the State and the Department shall 
be referred to the Governor and the Secretary for resolution.

(Sec. 523(c) of the Surface Mining Control and Reclamation Act of 1977; 
Pub. L. 95-87; (30 U.S.C. 1273(c)))

[47 FR 56806, Dec. 20, 1982, as amended at 54 FR 20568, May 12, 1989]



PART 933_NORTH CAROLINA--Table of Contents



Sec.
933.700 North Carolina Federal program.
933.701 General.
933.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.

[[Page 593]]

933.707 Exemption for coal extraction incident to government-financed 
          highway or other construction.
933.761 Areas designated unsuitable for surface coal mining by Act of 
          Congress.
933.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
933.764 Process for designating areas unsuitable for surface coal mining 
          operations.
933.772 Requirements for coal exploration.
933.773 Requirements for permits and permit processing.
933.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
933.775 Administrative and judicial review of decisions.
933.777 General content requirements for permit applications.
933.778 Permit applications--minimum requirements for legal, financial, 
          compliance, and related information.
933.779 Surface mining permit applications--minimum requirements for 
          information on environmental resources.
933.780 Surface mining permit applications--minimum requirements for 
          reclamation and operation plan.
933.783 Underground mining permit applications--minimum requirements for 
          information on environmental resources.
933.784 Underground mining permit applications--minimum requirements for 
          reclamation and operation plan.
933.785 Requirements for permits for special categories of mining.
933.795 Small operator assistance.
933.800 General requirements for bonding of surface coal mining and 
          reclamation operations.
933.815 Performance standards--coal exploration.
933.816 Performance standards--surface mining activities.
933.817 Performance standards--underground mining activities.
933.819 Special performance standards--auger mining.
933.823 Special performance standards--operations on prime farmland.
933.824 Special performance standards--mountaintop removal.
933.827 Special performance standards--coal processing plants and 
          support facilities not located at or near the minesite or not 
          within the permit area for a mine.
933.828 Special performance standards--in situ processing.
933.842 Federal inspections.
933.843 Federal enforcement.
933.845 Civil penalties.
933.846 Individual civil penalties.
933.955 Certification of blasters.

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

    Source: 48 FR 30302, June 30, 1983, unless otherwise noted.



Sec. 933.700  North Carolina Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in North Carolina which have been adopted under the 
Surface Mining Control and Reclamation Act of 1977.
    (b) The rules in this part cross-reference pertinent parts of the 
permanent program regulations in this chapter. The full text of a rule 
is in the permanent program rule cited under the relevant section of the 
North Carolina Federal program.
    (c) The rules in this part apply to all surface coal mining 
operations in North Carolina conducted on non-Federal and non-Indian 
lands. The rules in Subchapter D of this chapter apply to operations on 
Federal lands in North Carolina.
    (d) The information collection requirements contained in this part 
do not require approval by the Office of Management and Budget under 44 
U.S.C. 3507 because there are fewer than ten respondents annually.
    (e) The following provisions of North Carolina laws and regulations 
provide, where applicable, for more stringent environmental control and 
regulation of some aspects of surface coal mining operations than do the 
provisions of the Act and the regulations in this chapter. Therefore, 
pursuant to section 505(b) of the Act, they shall not be construed to be 
inconsistent with the Act unless in a particular instance the rules in 
this chapter are found by OSM to establish more stringent environmental 
controls.
    (1) North Carolina General Statute (NCGS) 74-51, concerning 
conditions under which a mining permit may be granted, authorized the 
North Carolina Department of Natural Resources and Community Development 
to deny a permit for a mining operation which will have a significantly 
adverse effect on the purposes of a publicly owned park, forest, or 
recreation area and may condition permit approval on a requirement of 
visual screening, vegetative or otherwise, so as to screen the view of 
the operation from public highways, public parks, or residential areas 
where the Department finds such screening to be feasible and desirable,

[[Page 594]]

or determines that such screening measures are either not feasible or 
not desirable.
    (2) North Carolina mining laws and regulations apply to mining 
operations affecting an area greater than one acre. To the extent that 
North Carolina mining law and regulations cited in paragraph (f) of this 
section apply to coal mining operations not regulated by the Surface 
Mining Control and Reclamation Act, they are not preempted by this 
Federal program for North Carolina.
    (3) North Carolina Dam Safety Law of 1967, North Carolina General 
Statutes (NCGS) 143-215.23 through 143-215.37.
    (4) Geophysical Exploration regulations, Title 15, North Carolina 
Administrative Code, Subchapter 5C, applies to any coal exploration 
involving the use of explosives.
    (f) The following are North Carolina laws and regulations that 
generally interfere with the achievement of the purposes and 
requirements of the Act and are, in accordance with section 504(g) of 
the Act, preempted and superseded to the extent that they regulate coal 
exploration or surface coal mining and reclamation operations regulated 
by the Surface Mining Control and Reclamation Act. Other North Carolina 
laws may interfere with the achievement of the proposes of goals of the 
Act in an individual situation, and may be preempted and superseded as 
they affect a particular coal exploration or surface mining operation by 
publication of the notice to that effect in the Federal Register.
    (1) North Carolina Mining Act of 1971, as amended, NCGS 74-46 
through 74-68, except to the extent that the Mining Act is preserved as 
provided in paragraph (e) of this section.
    (2) Title 15, North Carolina Administrative Code, Subchapters 5A, 
5B, and 5F Mining and Mineral Resources, except to the extent that those 
regulations are preserved as provided in paragraph (e) of this section.
    (g) The Secretary may grant a limited variance from the performance 
standards of Sec. Sec. 933.815 through 933.828 of this part if the 
applicant for coal exploration approval or a surface mining permit 
submitted pursuant to Sec. Sec. 933.772 through 933.785 demonstrates in 
the application that: (1) Such variance is necessary because of the 
unique nature of North Carolina's terrain, climate, biological, 
chemical, or other relevant physical conditions; and (2) the proposed 
alternative will achieve equal or greater environmental protection than 
does the performance requirement from which the variance is requested.

[48 FR 30302, June 30, 1983, as amended at 52 FR 13811, Apr. 24, 1987]



Sec. 933.701  General.

    Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and part 701 
of this chapter shall apply to surface coal mining and reclamation 
operations in North Carolina.



Sec. 933.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of other minerals 
for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]



Sec. 933.707  Exemption for coal extraction incident to government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 933.761  Areas designated unsuitable for surface coal mining by Act of 

Congress.

    Part 761 of this chapter, Areas Designated Unsuitable for Coal 
Mining by Act of Congress, with the exception of Sec. Sec. 761.11(c) 
and 761.12(f)(1), shall apply to surface coal mining and reclamation 
operations, beginning one year after the effective date of this program. 
For the purposes of part 933, the following Sec. Sec. 761.11(c) and 
761.12(f)(1) shall replace the existing Sec. Sec. 761.11(c) and 
761.12(f)(1).

    (c) On any lands which will adversely affect any publicly owned 
park, forest, recreation area, or any places included on, or eligible 
for listing on, the National Register of

[[Page 595]]

Historic Places, unless approved jointly by the regulatory authority and 
the Federal, State, or local agency with jurisdiction over the park, 
forest, recreation area, or places;
    (f)(1) Where the proposed surface coal mining operation may 
adversely affect any public park, forest, recreation area, or any places 
included on, or eligible for listing on, the National Register of 
Historic Places, the regulatory authority shall transmit to the Federal, 
State, or local agencies with jurisdiction over, or a statutory or 
regulatory responsibility for, the park, forest, recreation area, or 
historic place a copy of the completed permit application containing the 
following:
    (i) A request for that agency's approval or disapproval of the 
operators;
    (ii) A notice to the appropriate agency that it must respond within 
30 days from receipt of the request.



Sec. 933.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designation Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface coal mining 
and reclamation operations.



Sec. 933.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designatng Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to 
petitioning, initial processing, hearing requirements, decisions, data 
base and inventory systems, public information, and regulatory 
responsibilities shall apply to surface coal mining and reclamation 
operations beginning one year after the effective date of this program.



Sec. 933.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.

[52 FR 13811, Apr. 24, 1987]



Sec. 933.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
applicant of the findings;
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and negotiate the 
date by which the information must be submitted; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 912.773(b)(2)(ii) by the specified date, the office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the application is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required by Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with actual site conditions. The applicant will be notified 
in advance of the time of the visit. At the time of the visit, the 
applicant shall have the locations of the proposed permit boundaries, 
topsoil storage areas, sediment control structures, roads, and other 
significant

[[Page 596]]

features contained in the application marked by flags.
    (c) In addition to the information required by subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) The issuance of permits shall be coordinated, to the extent 
practicable, with the issuance of the following permits, leases and/or 
certificates required by the State of North Carolina; Water discharge 
permit (NCGS 143-215.1); water use permits in capacity use area (NCGS 
143-215.5); an approval of dam construction (NCGS 143-215.108), an air 
pollution control permit (NCGS 143-215.26, Title 15, North Carolina 
Administrative Code, Subchapter 2K); air and water quality reporting 
systems (NCGS 143-215.63--143-215.69); a geophysical exploration permit 
(Title 15, North Carolina Administrative Code, Subchapter 5C); a 
development permit for operations in an area of environmental concern 
designated pursuant to the Coastal Area Management Act (NCGS 113A-100--
113A-128); a dredging or filing permit issued by the Department of 
Natural Resources and Community Development (NCGS 113-229); a permit for 
dumping of toxic substances (NCGS 14-284.2); compliance with any 
applicable land use regulations adopted in a soil conservation district 
(NCGS 139-9); and compliance with any county ordinance regarding 
explosives (NCGS 153A-128).
    (e) No person shall be granted a permit to conduct exploration which 
results in the removal of more than 250 tons of coal or shall conduct 
surface coal mining unless that person has acquired all required 
permits, leases, and/or certificates listed in paragraph (d) of this 
section.
    (f) The Secretary shall provide to the North Carolina Department of 
Natural Resources and Community Development a copy of each decision to 
grant or deny a permit application.

[52 FR 13811, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 933.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved permit will be subject to review 
and approval by OSMRE.
    (1) Significant revisions shall be processed as if they are new 
applications in accordance with the public notice and hearing provisions 
of Sec. Sec. 773.6, 773.19(b) (1) and (2), and 778.21 and of part 775.
    (2) OSMRE shall make every effort to approve or disappove an 
application for permit revision within 60 days of receipt or such longer 
time as may be reasonable under the circumstances. If additional time 
needed, OSMRE shall notify the applicant that the application is being 
reviewed, but that more time is necessary to complete such review, 
setting forth the reasons and the additional time that is needed.
    (c) In addition to the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 
thirty days of either the publication of the newspaper advertisement 
required by Sec. 774.17(b)(2) of this chapter or receipt of an 
administratively complete application, whichever is later.

[52 FR 13811, Apr. 24, 1987, 1995, as amended at 65 FR 79672, Dec. 19, 
2000]



Sec. 933.775  Administrative and judicial review of decisions.

    Part 775 of his chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.

[52 FR 13812, Apr. 24, 1987]

[[Page 597]]



Sec. 933.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
Applications, shall apply to any person who applies for a permit to 
conduct surface coal mining and reclamation operations.

[52 FR 13812, Apr. 24, 1987]



Sec. 933.778  Permit applications--minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance and Related Information, shall apply to 
any person who applies for a permit to conduct surface coal mining and 
reclamation operations.

[52 FR 13812, Apr. 24, 1987]



Sec. 933.779  Surface mining permit applications--minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface coal mining 
and reclamation operations.



Sec. 933.780  Surface mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations, except that for the purposes of part 933, the 
paragraph in Sec. 780.31 shall be replaced by the following two 
paragraphs:

    (a) For any public parks, forest, or recreation areas, or historic 
places that may be adversely affected by the proposed operations, each 
plan shall describe the measures to be used to minimize or prevent these 
impacts and to obtain approval of the regulatory authority and other 
agencies as required in 30 CFR 761.12(f).
    (b) Each application for an operation which will be visible from any 
public park, public highway, or residential area shall include measures 
to be taken to screen the operation from the view of public parks, 
public highways and residential areas, or shall set forth the reasons 
why such screening measures are either not feasible or not desirable.



Sec. 933.783  Underground mining permit applications--minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who submits an application to conduct underground 
coal mining operations.



Sec. 933.784  Underground mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct underground coal mining 
except that for the purposes of part 933, the paragraph in Sec. 784.17 
shall be replaced by the following two paragraphs:

    (a) For any public parks, forest, or recreation areas, or historic 
places that may be adversely affected by the proposed operation, each 
plan shall describe the measures to be used to minimize or prevent these 
impacts and to obtain approval of the regulatory authority and other 
agencies as required in 30 CFR 761.12(f).
    (b) Each application for an operation which will be visible from any 
public park, public highway, or residential area shall include measures 
to be taken to screen the operation from the view of public parks, 
public highways and residential areas, or shall set forth the reasons 
why such screening measures are either not feasible or not desirable.



Sec. 933.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.

[[Page 598]]



Sec. 933.795  Small operator assistance.

    Part 795 of this chapter, Small Operator Assistance, shall apply to 
any person making application for assistance under the small operator 
assistance program.



Sec. 933.800  General requirements for bonding of surface coal mining and 

reclamation operations.

    Part 800 of this chapter, General Requirements for Bonding of 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, shall apply to all surface coal mining and reclamation 
operations.



Sec. 933.815  Performance standards--coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person conducting coal exploration 
operations.



Sec. 933.816  Performance standards--surface mining activities.

    Part 816 of this chapter, Permanent Program Performance Standards--
Surface Mining Activities, shall apply to any person who conducts 
surface coal mining and reclamation operations.



Sec. 933.817  Performance standards--underground mining activities.

    Part 817 of this chapter, Permanent Program Performance Standards--
Underground Mining Activities, shall apply to any person who conducts 
underground coal mining operations.



Sec. 933.819  Special performance standards--auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 933.823  Special performance standards--operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmlands.



Sec. 933.824  Special performance standards--mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface coal mining operations constituting mountaintop removal mining.



Sec. 933.827  Special performance standards--coal processing plants and 

support facilities not located at or near the minesite or not within the 

permit area for a mine.

    Part 827 of this chapter, Special Permanent Program Performance 
Standards--Coal Processing Plants and Support Facilities Not Located at 
or Near the Minesite or Not Within the Permit Area for a Mine, shall 
apply to any person who conducts surface coal mining and reclamation 
operations which include the operation of coal processing plants and 
support facilities not located at or near the minesite or not within the 
permit area for a mine.



Sec. 933.828  Special performance standards--in situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts in 
situ processing activities.



Sec. 933.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all exploration and surface coal mining and reclamation operations.
    (b) OSM will furnish a copy of any inspection report written 
pursuant to this part to the North Carolina Department of Natural 
Resources and Community Development upon request.



Sec. 933.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall when 
enforcement action is required for violations on surface coal mining and 
reclamation operations.
    (b) OSM will furnish a copy of each enforcement action and order to 
show cause issued pursuant to this part to the North Carolina Department 
of Natural Resources and Community Development upon request.

[[Page 599]]



Sec. 933.845  Civil penalties.

    Part 845 of this chaper, Civil Penalties, shall apply when civil 
penalties are assessed for violations on surface coal mining and 
reclamation operations.



Sec. 933.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 933.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19462, May 29, 1986]



PART 934_NORTH DAKOTA--Table of Contents



Sec.
934.1 Scope.
934.10 State program approval.
934.12 State program amendments disapproved.
934.13 State program provisions set aside.
934.15 Approval of North Dakota regulatory program amendments.
934.16 Required program amendments.
934.20 Approval of North Dakota abandoned mine plan.
934.25 Approval of North Dakota abandoned mine land reclamation plan 
          amendments.
934.30 State-Federal Cooperative Agreement.

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

    Source: 45 FR 82246, Dec. 15, 1980, unless otherwise noted.



Sec. 934.1  Scope.

    This part contains all rules applicable only within North Dakota 
that have been adopted under the Surface Mining Control and Reclamation 
Act of 1977.



Sec. 934.10  State program approval.

    The North Dakota State Program, as submitted on February 29, 1980, 
and amended and clarified on June 12, 1980 and September 9, 1980, is 
conditionally approved, effective December 15, 1980. Beginning on that 
date, PSC shall be deemed the regulatory authority in North Dakota for 
all surface coal mining and reclamation operations and for all 
exploration operations where more than 250 tons of coal are removed on 
non-Federal and non-Indian lands and the North Dakota Geological Survey 
shall be deemed the regulatory authority in North Dakota for all 
exploration operations where less than 250 tons of coal are removed on 
non-Federal and non-Indian lands. Only surface mining and reclamation 
operations on non-Federal and non-Indian lands shall be subject to the 
provisions of the North Dakota permanent regulatory program. Copies of 
the approved program, together with copies of the letter of the Public 
Service Commission agreeing to the conditions in Sec. 934.11, are 
available at:
    (a) North Dakota Public Service Commission, Reclamation Division; 
State Capitol Building; Bismarck, ND 58505-0165; Telephone: (701) 224-
4096.
    (b) Office of Surface Mining, 100 East ``B'' Street, Casper, Wyoming 
82601-1918, telephone: (307) 261-5824.

[45 FR 82246, Dec. 15, 1980, as amended at 57 FR 826, Jan 9, 1992; 57 FR 
37706, Aug. 20, 1992]



Sec. 934.12  State program amendments disapproved.

    The following provision of an amendment to the North Dakota 
permanent regulatory program, as submitted to OSMRE on February 10, 
1987, and modified on August 18, 1987, and December 14, 1987, is hereby 
disapproved: Paragraph (c)(4) of the North Dakota Administrative Code, 
Article 69-05.2-12-05.1, which would have established separate financial 
criteria for self-bonding by rural electric cooperatives.

[53 FR 2840, Feb. 2, 1988. Redesignated at 55 FR 1819, Jan. 19, 1990]



Sec. 934.13  State program provisions set aside.

    North Dakota regulation NDAC 69-05.2-27-01 is inconsistent with 
Federal provisions for permitting and bonding of research projects and 
is set aside under the provisions of section 505(b) of the Surface 
Mining Control and Reclamation Act of 1977.

[[Page 600]]



Sec. 934.15  Approval of North Dakota regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
July 30, 1982........................  February 9, 1983,        NDCC Chapter 38-14.1; subsection 5 of Sec.  38-
                                        November 9, 1983.        14.1-02, definitions of ``extended mining
                                                                 plan,'' ``performance bond;'' 38-14.1-03;
                                                                 subsection 3 of Sec.  38-14.1-07, 13;
                                                                 subdivision ``u'' of subsection 1 of Sec.  38-
                                                                 14.1-14; subdivision ``n'' of subsection 2 of
                                                                 Sec.  38-14.1-14; Sec.  38-14.15; subsection
                                                                 3 of Sec.  38-14.1-20; subsections 17, 18 of
                                                                 Sec.  38-14.1-24; subsection 4 of Sec.  38-
                                                                 14.1-30; Sec.  38-14.1-38; Chapter 38-12.1;
                                                                 subdivision b of Sec.  1 of Sec.  38-12.1-04;
                                                                 Chapter 38-18; subsection 3 of Sec.  38-18-05,
                                                                 definition of ``mineral developer;'' subsection
                                                                 6 of Sec.  38-18-05, definition of ``mineral
                                                                 owner;'' subsection 10 of Sec.  38-18-05,
                                                                 definition of ``surface owner;'' subsection 3
                                                                 of Sec.  38-18-06; Sec.  38-18-07; NDAC 69-
                                                                 05.2, Chapter 69-05.2-01, 05 through 19, 21,
                                                                 22, 23, 26; NDCC Sec.  38.12.1-03.
February 2, 1984.....................  July 19, 1984..........  NDAC Sec. Sec.  38-14-1.02(33)(a), 04.1, .2,
                                                                 .3, 13(1)(b), 24(1)(1); Sec. Sec.  69-05.2-05-
                                                                 03, 69-05.2-09-18, 69-05.2-13-12.1 through .6,
                                                                 69-05.2-16-04.
February 27, 1984....................  January 3, 1985........  NDAC Sec. Sec.  69-05.2-01-02, definition of
                                                                 ``blaster'' and renumbering of Sec.  69-05.2-
                                                                 17-01; 69-05.2-31.
June 18, 1985........................  February 18, 1986......  NDCC 38-14.1-04.2, .3, -7, -10, -14, -21, -30,-
                                                                 33; NDAC 69-05.2-04-01, -06-02, -08-03, -09-02,-
                                                                 08, -09, -10-03, -16-09.
May 30, 1986.........................  October 21, 1986.......  NDAC 69-05.2-01-02 (11), (12), definitions
                                                                 ``coal preparation,'' ``coal preparation
                                                                 plant,'' ``coal processing plant,'' 08-
                                                                 05(2)(c)(5), -09-19, -13-13, -15-01, -02, -
                                                                 03(2), -04, -16-04(1)(b), -09(22), -15-01, -21-
                                                                 03.
September 8, 1986....................  December 9, 1986.......  NDAC 69-05.2-12-20.
April 3, 1987........................  November 16, 1987......  NDCC 38-14.1-16(2), (7), -17(7).
February 10, 1987....................  February 2, 1988.......  NDAC 69-05.2-12, -13-04, -23.
June 1, 1988.........................  March 10, 1989.........  Amendment X, ``Standards for Evaluation of
                                                                 Revegetation Success and Recommended Procedures
                                                                 for Pre-and Post- mining Vegetation
                                                                 Assessments''.
April 11, 1989.......................  August 4, 1989.........  NDCC 38-14.1-37, -39.
November 1, 1988.....................  January 19, 1990.......  NDAC 69-05.2, 2-01 through -31.
November 20, 1990....................  January 9, 1992........  NDCC 28-32-02(3), (4); NDAC 69-05.2-01-02, -
                                                                 03(4), (5), (7), -04-01(5)(b), -05-06(1), (1d),
                                                                 -06-01,-02(3) through (6), -08-05(2), (2C),
                                                                 (2e), -09(3b), -15,-09-01(4), -06(1), (2), -
                                                                 09(1)(c)(7-8), (1)(e), (2)(c through e), (h), -
                                                                 17(1), (2), -19(1), -10-03, -05(3a, e), -11-03,
                                                                 -12-01(4), (10), -12(3), -18, -20, -13-08(2)
                                                                 through (6), -12(4), -13, -15-04(4)(a)(2)(c), -
                                                                 16-03, -07(2a), -09(9), (17), (18), (20), -
                                                                 12(1), -14(3), -20, -17-01(2), -05(1), -18-01,
                                                                 12(f), -20-03(1b, d), (3),-22-07(4)(e) through
                                                                 (i), -23-01, -24-01-09, -25-03(2), (4), -26-05,
                                                                 (3), -28-03, (7), 16 through 18.
June 12, 1991, November 19, 1991.....  August 20, 1992........  NDCC 38-12.1-03-2.b, -05-2.d; 38-14.1-02-33.a, -
                                                                 24.13.a, -30.3.c through g(1), (2); NDAC 43-02-
                                                                 01-18.1, -20; 69-05.2-01-01-3, -05-08, -08-01,
                                                                 02; 69-05.2-08, -10.1a, -12; -09-04, -09, -10,
                                                                 11, -14, -17, -10-02, -11-01.5, 02, -12-01, -05
                                                                 through -08, -12-11, -12, -14, -16, -13-06, -
                                                                 08, -14-01, -15-02, -16-04, -06, -12, -22-07, -
                                                                 25-03, -04; 69-05.2-32, -32-01.1.b.
April 21, 1993.......................  March 15, 1994, July     NDAC 69-05.2-06-02(3), -09-01(4), -10-03(1),
                                        22, 1994.                (1)(a), (4), -13-02(4)(e), -08(3) through (6),
                                                                 15-04(3), -16-09 (13), (14), (16), -20-03(3),
                                                                 (4); NDCC 38-14.1-21(5), -24(13)(e), -37(2),
                                                                 (a) through (f), (3) through (6); 38-12.1-
                                                                 04(1)(a); 43-02-01-05, -20.3(c)(2); 43-02-01-
                                                                 05.
October 22, 1993.....................  July 22, 1994..........  NDAC 69-05.2-17-02, -29-01(2), -02(1)(a), (b), -
                                                                 03(2), (5), -04, -05, -06(1)(a), -07(1), -
                                                                 08(1)(a) through (e), (2).
November 10, 1994....................  April 13, 1995.........  NDAC 69-05.2-04-07(3)(a), -05-09, -06-01(2), -
                                                                 02(6), -10-03(5), -11-01(1)(d), -03(5)(c), -
                                                                 06(1)(c), -12-09(2), -15-02(2a), -16-09(7),
                                                                 (20), -21-01(2), -28-03(6).
February 17, 1994....................  July 14, 1995..........  Policy document entitled ``Standards for
                                                                 Evaluation of Revegetation Success and
                                                                 Recommended Procedures for Pre- and Postmining
                                                                 Vegetation Assessments''.
March 20, 1996.......................  April 28, 1997.........  NDAC 69-05.2-09-02.8 -13-02, -15-04.4a(2)c, -19-
                                                                 04.2, 3, -22-07.3.c, 4.d, 4.i, -26-05.3.c; 69-
                                                                 05, 22-07.4.j, .k; changes to new names of U.S.
                                                                 Natural Resource Conservation Service and the
                                                                 North Dakota Department of Health.
May 2, 1997..........................  August 25, 1997........  NDCC 38-14.1-04.1, .2, .3.
April 12, 1995.......................  September 16, 1998.....  Statute: NDCC 38-14.1-37(4); NDCC 38-12.1-08;
                                                                 Rule: NDAC 43-02-01.
April 9, 1998........................  January 8, 1999........  Revegetation Success Policy Doc.
                                                                II-C, Prime Farmlands standards.
                                                                II-F, Woodlands cover standards.
                                                                II-H, Wetlands standards.
                                                                II-I, Recreational land use standards for tree
                                                                 and shrub stocking.
                                                                III-D, Methods for sampling woodland cover.
August 29, 1997......................  March 16, 1999.........  Rules: NDAC 69-05.2-13-01; NDAC 69-05.2-22-
                                                                 07.4.1; NDAC 69-05.2-28-19.
March 31, 1999.......................  July 20, 1999..........  NDCC 38-14.1-30.3.f.

[[Page 601]]

 
September 2, 1998....................  November 8, 1999.......  NDAC 69-05.2.90
                                                                NDAC 69-05.2-01-03
                                                                NDAC 69-05.2-05-09
                                                                NDAC 69-05.2-09-09
                                                                NDAC 69-05.2-13-02
                                                                NDAC 69-05.2-13-08
                                                                NDAC 69-05.2-15-02
                                                                NDAC 69-05.2-15-04
                                                                NDAC 69-05.2-16-09
                                                                NDAC 69-05.2-19-04
June 20, 2000........................  March 2, 2001..........  NDAC 69-05.2-01-03; NDCC 28-32
                                                                NDAC 69-05.2-09.15.8
                                                                NDAC 69-05.2-10-03.6.c
                                                                NDAC 69-05.2-12-09
                                                                NDAC 69-05.2-12-12.2
                                                                NDAC 69-05.2-16-05
                                                                NDAC 69-05.2-22-07.4.1
                                                                NDAC 69-05.2-26-05.3
                                                                NDAC 69-05.2-29-03
March 16, 2000.......................  May 17, 2001...........  Standards for Evaluation of Revegetation Success
                                                                 and Recommended Procedures for Pre- and
                                                                 Postmining Vegetation Assessments.
May 9, 2001..........................  November 16, 2001......  NDCC 38-14.1
November 21, 2002....................  July 7, 2003...........  Standards for Evaluation of Revegetation Success
                                                                 and Recommended Procedures for Pre- and
                                                                 Postmining Vegetation Assessments:
                                                                Section II-C, D, E, F, G, and H;
                                                                Section III-C, D, and E
Feb. 10, 2003........................  Dec. 4, 2003...........  NDAC 69-05.2-01-02(120)
                                                                NDAC 69-05.2-04-01.1 through 01.7
                                                                NDAC 69-05.2-05-01
                                                                NDAC 69-05.2-09-01
                                                                NDAC 69-05.2-12-12
                                                                NDAC 69-05.2-16-04
                                                                NDAC 69-05.2-16-05(1)(b)(3)
                                                                NDAC 69-05.2-16-09
April 23, 2003.......................  January 20, 2004.......  NDAC 69-05.2-01-02.13
                                                                NDAC 69-05.2-12-01.11
                                                                NDAC 69-05.2-12-04.2
                                                                NDAC 69-05.2-17-07
                                                                NDAC 69-05.2-22-07
April 20, 2005.......................  November 28, 2005......  NDCC 38-14.1-17.1.a and 2005b.
May 24, 2006.........................  December 20, 2006......  NDAC 69-05.2-06-03
                                                                NDAC 69-05.2-10-01
                                                                NDAC 69-05.2-12-12
                                                                NDAC 69-05.2-16-09
                                                                NDAC 69-05.2-22-07
                                                                NDAC 69-05.2-24-01
March 12, 2008.......................  September 12, 2008.....  NDAC 69-05.2-08-08
                                                                NDAC 69-05.2-10-03
                                                                NDAC 69-05.2-12-05.1
November 12, 2009....................  December 27, 2010......  NDCC 38-14.1-24(18).
                                                                NDAC 69-05.2-09-2.
                                                                2NDAC 69-05.2-22-07.
----------------------------------------------------------------------------------------------------------------


[62 FR 9948, Mar. 5, 1997, as amended at 62 FR 22894, Apr. 28, 1997; 62 
FR 44900, Aug. 25, 1997; 63 FR 49434, Sept. 16, 1998; 64 FR 1130, Jan. 
8, 1999; 64 FR 12900, Mar. 16, 1999; 64 FR 38827, July 20, 1999; 64 FR 
60659, Nov. 8, 1999; 66 FR 13020, Mar. 2, 2001; 66 FR 27459, May 17, 
2001; 66 FR 57662, Nov. 16, 2001; 68 FR 40147, July 7, 2003; 68 FR 
67804, Dec. 4, 2003; 69 FR 2666, Jan. 20, 2004; 70 FR 71242, Nov. 28, 
2005; 71 FR 76148, Dec. 20, 2006; 73 FR 52923, Sept. 12, 2008; 75 FR 
81122, Dec. 27, 2010]



Sec. 934.16  Required program amendments.

    Pursuant to 30 CFR 732.17(f)(1), North Dakota is required to submit 
to OSM by the specified date the following written, proposed program 
amendment, or a description of an amendment to be proposed that meets 
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with North Dakota's established 
administrative or legislative procedures.

[[Page 602]]

    (a)-(cc) [Reserved]

[53 FR 2840, Feb. 2, 1988, as amended at 54 FR 10145, Mar. 10, 1989; 55 
FR 1819, Jan. 19, 1990; 57 FR 827, Jan. 9, 1992; 59 FR 11933, Mar. 15, 
1994; 59 FR 37431, July 22, 1994; 60 FR 18745, Apr. 13, 1995; 60 FR 
36223, July 14, 1995; 62 FR 22895, Apr. 28, 1997; 63 FR 49434, Sept. 16, 
1998; 64 FR 1130, Jan. 8, 1999; 64 FR 60660, Nov. 8, 1999]



Sec. 934.20  Approval of North Dakota abandoned mine plan.

    The North Dakota Abandoned Mine Plan as submitted on July 28, 1981, 
is approved. Copies of the approved program are available at:

Casper Field Office, Office of Surface Mining Reclamation and 
Enforcement, 100 East B Street, room 2128, Casper, WY 82601-1918; 
Telephone: (307) 261-5776.
North Dakota Public Service Commission, Abandoned Mine Land Division, 
State Capitol, Bismarck, ND 58505; Telephone: (701) 224-4096.

[57 FR 33116, July 27, 1992]



Sec. 934.25  Approval of North Dakota abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
March 4, 1983........................  June 24, 1983..........  Definition of reclamation terms; right of entry;
                                                                 land acquisition, management, and disposition;
                                                                 other policies and procedures.
September 15, 1987...................  June 16, 1988..........  Revision of administrative and management
                                                                 structure of the approved North Dakota Plan.
October 31, 1991.....................  July 27, 1992..........  NDCC 38-14.2-04, -06.
May 25, 1993.........................  September 27, 1993.....  Emergency response reclamation program; set-
                                                                 aside trust funds, eligible lands.
September 20, 1995...................  October 8, 1996........  NDCC 38-14.2-03(14); Public Service Commission
                                                                 Procurement and Contract Procedures; PSC
                                                                 policies Nos. 2-01-81(5), 2-02-81(5); PSC
                                                                 organizational structure.
----------------------------------------------------------------------------------------------------------------


[62 FR 9949, Mar. 5, 1997]



Sec. 934.30  State-Federal Cooperative Agreement.

                          Cooperative Agreement

    This is a Cooperative Agreement (Agreement) between North Dakota 
(State) acting by and through the North Dakota Public Service Commission 
(Commission) and the Governor, and the United States Department of the 
Interior (Interior), acting by and through the Secretary of the Interior 
(Secretary) and the Office of Surface Mining (OSM).

                   Article I: Introduction and Purpose

    A. Authority: This Agreement is authorized by section 523(c) of the 
Surface Mining Control and Reclamation Act (Federal Act), Pub. L. 95-87, 
30 U.S.C. 1273(c), which allows a State with a permanent regulatory 
program approved under 30 U.S.C. 1253 to elect to enter into an 
Agreement for the regulation and control of surface coal mining on 
Federal lands, and by Chapter 38-14.1 of the North Dakota Century Code, 
Reclamation of Surface Mined Lands (State Act). This Agreement provides 
for State regulation of surface coal mining and reclamation operations 
on Federal lands within North Dakota consistent with the State and 
Federal Acts and the Federal lands program (section 523(a) of the 
Federal Act and 30 CFR Chapter VII, Subchapter D).
    B. Purpose: The purpose of the Agreement is to: (1) Foster State-
Federal cooperation in the regulation of surface coal mining and 
reclamation operations; (2) eliminate unnecessary intergovernmental 
overlap and duplication; and (3) provide uniform and effective 
application of the State Program on all non-Indian lands in North 
Dakota.

                       Article II: Effective Date

    Following signing by the Secretary, the Governor, and the 
Commission, the Agreement shall take effect upon publication in the 
Federal Register as a final rule. This Agreement shall remain in effect 
until terminated as provided in Article X.

[[Page 603]]

                           Article III: Scope

    In accordance with the Federal lands program in 30 CFR parts 740-
746, the laws, rules, terms, and conditions of North Dakota's Permanent 
State Program (Program) (conditionally approved effective December 15, 
1980, 30 CFR 934.11 or as hereinafter amended in accordance with 30 CFR 
732.17) are applicable to Federal lands within North Dakota except as 
otherwise stated in this Agreement, the Federal Act, 30 CFR 745.13, or
other applicable laws or rules and regulations. Orders and decisions 
issued by the Commission in accordance with the State Program that are 
reviewable shall be reviewed pursuant to section 38-14.1-30 of the North 
Dakota Century Code. Orders and decisions issued by the Department that 
are appealable shall be appealed to the Department of the Interior's 
Office of Hearings and Appeals.

           Article IV: Requirements for Cooperative Agreement

    The Commission and the Secretary affirm that they will comply with 
all of the provisions of this Agreement and will continue to meet all 
the conditions and requirements specified in this Article.
    A. Responsible Administrative Agency: The Commission is, and shall 
continue to be, the sole agency responsible for administering this 
Agreement on behalf of North Dakota on Federal lands throughout the 
State. OSM shall administer this Agreement on behalf of the Secretary, 
in accordance with the regulations in 30 CFR Chapter VII.
    B. Authority of State Agency: The Commission has and shall continue 
to have authority under State law to carry out this Agreement.
    C. Funds: The State will devote adequate funds to the administration 
and enforcement on Federal lands in North Dakota of the requirements 
contained in the Program. If the State complies with the terms of this 
Agreement, and if necessary funds have been appropriated, OSM shall 
reimburse the State as provided in section 705(c) of the Federal Act and 
30 CFR 735.16, for costs associated with carrying out responsibilities 
under this Agreement. The grants procedures established in 30 CFR part 
735 are applicable to funding under this Agreement. Reimbursement shall 
be in the form of annual grants, and applications for grants shall be 
processed and grants awarded in a prompt manner.
    If sufficient funds have not been appropriated, OSM and the 
Commission shall promptly meet to decide on appropriate measures that 
will insure that surface coal mining and reclamation operations are 
regulated in accordance with the Program.
    D. Reports and Records: The Commission shall make annual reports to 
OSM pursuant to 30 CFR 745.12(d), containing information respecting its 
implementation and administration of the terms of this Agreement. The 
Commission and OSM shall exchange, upon request, information developed 
under this Agreement except where prohibited by Federal law. OSM shall 
provide the Commission with a copy of any final evaluation report 
concerning State administration and enforcement of this Agreement.
    E. Personnel: The Commission shall provide the necessary personnel 
to fully implement this Agreement in accordance with the provisions of 
the Federal and State Acts and the State Program.
    F. Equipment and Laboratories: The Commission shall assure itself 
access to equipment, laboratories, and facilities with which all 
inspections, investigations, studies, tests, and analyses can be 
performed and which are necessary to carry out the requirements of this 
Agreement.
    G. Permit Application Fees and Civil Penalty Assessments: The amount 
of the fee accompanying an application for a permit shall be determined 
in accordance with section 38-14.1-13 of the State Act. All permit fees 
and civil penalty assessments collected by the State from operators on 
Federal lands shall be retained by the State and deposited with the 
State Treasurer. These funds shall be disposed of in accordance with 
Federal requirements in OMB Circular No. A-102, Attachment E. The 
financial status report submitted pursuant to 30 CFR 735.26 shall 
include a report of the amount of permit application fees collected and 
attributable to Federal lands during the prior Federal fiscal year.

   Article V: Policies and Procedures: Review of a Permit Application 
       Package or an Application for a Permit Renewal or Revision

    A. Contents of Permit Application Package: The Commission and the 
Secretary will require that an operator proposing to mine on Federal 
land shall submit an identical permit application package in an 
appropriate number of copies to the Commission and OSM. Any 
documentation or information submitted by the operator for the sole 
purpose of complying with the 3-year requirement of section 7(c) of the 
Mineral Leasing Act (30 U.S.C. 181 et seq.) will be submitted directly 
to the Bureau of Land Management, Department of the Interior. The permit 
application package shall be in the form required by the Commission and 
include any supplemental information required by the Secretary. The 
permit application package shall satisfy the requirements of 30 CFR 
Chapter VII, Subchapter D and shall include the information required by, 
or necessary for, the Commission and the Secretary, acting within their 
statutory authority, to make a determination of compliance with:

[[Page 604]]

    (1) Chapter 38-14.1 and Chapter 38-18 of the North Dakota Century 
Code;
    (2) Article 69-05.2 of the North Dakota Administrative Code (NDAC);
    (3) Applicable terms and conditions of the Federal coal lease;
    (4) Applicable requirements of the Bureau of Land Management's 30 
CFR part 211 \1\ regulations pertaining to the Mineral Leasing Act; and
---------------------------------------------------------------------------

    \1\ Editorial Note: 30 CFR part 211 was redesignated as 43 CFR part 
3480 at 48 FR 41589, Sept. 16, 1983.
---------------------------------------------------------------------------

    (5) Applicable requirements of other Federal laws and the Program, 
including but not limited to those in appendix A of this Agreement.
    B. Review Procedures: 1. The Commission shall assume primary 
responsibility for the analysis, review, and approval of permit 
applications required by 30 CFR Chapter VII, Subchapter D for surface 
coal mining on Federal lands in North Dakota. OSM shall, as requested, 
assist the Commission in this analysis and review.
    2. The Commission shall be the primary point of contact for 
operators regarding the approval of the permit application package, 
except on matters concerned exclusively with the 30 CFR part 211 \1\ 
regulations administered by the Bureau of Land Management. The 
Commission will be responsible for informing the applicant of all joint 
State-Federal or Federal determinations, except matters concerned 
exclusively with the 30 CFR part 211 \1\ regulations. The Commission 
shall send to the Bureau of Land Management all correspondence with the 
applicant which may have a bearing on decisions regarding Mineral 
Leasing Act requirements. Except in exigent circumstances, OSM shall 
generally not independently initiate contacts with applicants regarding 
completeness or deficiencies of permit application packages with respect 
to matters which are properly within the jurisdiction of the Commission. 
The Commission may arrange for an operator to send written 
communications and documents regarding a permit application package 
directly to OSM. The Secretary reserves the right to act independently 
of the Commission to carry out his responsibilities under laws other 
than the Federal Act. A copy of any independent correspondence with the 
applicant required to carry out these responsibilities which may have a 
bearing on decisions regarding the permit application package shall be 
sent to the State.
    3. OSM is responsible for ensuring that any information OSM receives 
from an applicant regarding the permit application package is sent to 
the Commission and the Commission will send any information received 
from the applicant to OSM. OSM shall have access to Commission files for 
mines on Federal lands. OSM and the Commission shall regularly 
coordinate with each other during the permit application package review 
process.
    4. OSM shall be responsible for obtaining, in a timely manner, the 
views of all Federal agencies with jurisdiction or responsibility over a 
permit application package on Federal lands in North Dakota and for 
making these views known to the Commission within 90 days of the receipt 
of the application by OSM. The Commission shall keep OSM informed of 
findings during the review which bear on the responsibilities of other 
Federal agencies. OSM shall take appropriate steps to facilitate 
discussions between the Commission and the concerned agencies wherever 
desirable to resolve issues or problems identified in the review.
    5. Upon receipt of a permit application package, both OSM and the 
Commission shall each designate its application manager. The application 
managers shall serve as the primary point of contact between OSM and the 
Commission throughout the review process and shall be responsible for 
identifying areas of avoidable duplication of review and analysis, which 
shall be eliminated where possible. Not later than 15 days after an 
application has been received, OSM and the Commission shall discuss the 
application and agree upon a work plan and schedule for the review of 
the application. OSM shall thereafter inform the Commission of any 
specific or general areas of concern, including the scope of required 
environmental analyses under the National Environmental Policy Act, 
which require special handling or analysis. The Commission shall 
likewise inform OSM where OSM assistance will be needed to perform any 
specific or general analysis or prepare any studies or similar work.
    6. The Commission shall prepare a technical-environmental analysis 
on the permit application package. Copies of drafts of this document 
shall be sent to OSM for review and comment. OSM shall independently 
evaluate the documents and inform the Commission within 30 days of any 
changes that should be made. The Commission shall consider the comments 
of OSM and send a final technical-environmental analysis to OSM which 
will form the basis for and be included in the decision document which 
OSM will prepare for the Secretary's consideration. The Commission shall 
approve or disapprove the permit application by written decision in 
accordance with the Program. The Secretary's decision on the mining plan 
and those other Federal responsibilities which cannot be delegated 
(including but not limited to those listed in appendix A) shall be made 
concurrently with or as soon as possible after the final decision of the 
Commission on the permit. The permit issued by the Commission shall 
condition the initiation of surface coal mining operations on Federal

[[Page 605]]

lands within the permit area on obtaining mining plan approval from the 
Secretary. The Commission shall, in the approved permit, reserve the 
right to amend or rescind its action to conform with action taken, or 
with terms or conditions imposed, by the Secretary when approving the 
mining plan. After the Commission makes its decision on the permit, it 
shall send a notice to the applicant and OSM with a statement of 
findings and conclusions in support of the action.
    7. The Commission may approve and issue permits, permit renewals, 
and permit revisions for surface disturbances associated with surface 
coal mining and reclamation operations, and disturbance of the surface 
may commence without need for an approved mining plan on lands where:
    (a) The surface estate is non-Federal and non-Indian;
    (b) The mineral estate is Federal and is unleased;
    (c) The Commission consults with the Bureau of Land Management 
through OSM in order to insure that actions are not taken which would 
substantially and adversely affect the Federal mineral estate; and
    (d) The proposed surface disturbances are planned to support surface 
coal mining and reclamation operations on adjacent non-Federal lands and 
this is specified in the permit, permit renewal, or permit revision.
    8. Any permit renewal requested pursuant to applicable State laws 
and rules for a surface coal mining and reclamation operation on Federal 
lands, and for which a mining plan has been approved by the Secretary, 
shall be reviewed and approved or disapproved by the Commission in 
consultation with OSM for Federal responsibility under other laws. The 
Commission shall inform OSM and BLM of the approval or disapproval of 
the renewal and provide OSM and BLM with copies of the application 
documents.
    9. The Commission shall inform OSM of each permit revision request 
with respect to surface coal mining and reclamation operations on 
Federal lands containing leased Federal coal. For other Federal lands, 
the Commission shall inform the Federal land management agency of each 
permit revision request. Surface coal mining and reclamation operations 
shall not occur pursuant to the revision unless the permit revision 
request has been approved by the Commission and:
    (a) With respect to Federal lands containing leased Federal coal--
    (i) The Secretary has determined that the permit revision does not 
constitute a mining plan modification, or
    (ii) If the revision does constitute a mining plan modification, the 
modification has been approved by the Secretary.
    (b) With respect to other Federal lands, the Commission has 
consulted with the Federal land management agency to ensure that the 
permit revision is consistent with Federal laws and regulations other 
than the Act.
    10. When the Commission and OSM cannot resolve differences that 
develop during permit application package review or cannot agree on the 
final actions to be taken by the Commission and the Department, the 
matter shall be referred to the Governor and the Secretary for 
resolution.

                         Article VI: Inspections

    The Commission shall conduct inspections on Federal lands and 
prepare and file inspection reports in accordance with the approved 
Program.
    A. Inspection Reports: The Commission shall, within 15 days of 
conducting any inspection on Federal lands, file with OSM an inspection 
report describing (1) the general conditions of the lands under the 
permit; (2) whether the operator is complying with applicable 
performance and reclamation requirements; and (3) the manner in which 
specific operations are being conducted.
    B. Commission Authority: The Commission shall be the point of 
contact and primary inspection authority in dealing with the operator 
concerning operations and compliance with the requirements covered by 
this Agreement, except as described in this Agreement and the 
Secretary's regulations. Nothing in this Agreement shall prevent 
inspections by authorized Federal or State agencies for purposes other 
than those covered by this Agreement.
    C. OSM Authority: For the purpose of evaluating the manner in which 
this Agreement is being carried out and to insure that performance and 
reclamation standards are being met, OSM may conduct inspections of 
surface coal mining and reclamation operations on Federal lands without 
prior notice to the Commission. In order to facilitate a joint Federal-
State inspection, when OSM is responding to a citizen complaint of an 
imminent danger to the health or safety of the public or of a 
significant, imminent environmental harm pursuant to 30 CFR 
842.11(b)(1)(i), it will contact the Commission if circumstances and 
time permit, prior to the Federal inspection. The Department may conduct 
any inspections necessary to comply with 30 CFR part 842 and 30 CFR 
740.17 (as 30 CFR 740.17 relates to obligations under laws other than 
the Federal Act). If an inspection is made without Commission 
inspectors, OSM shall provide the Commission with a copy of the 
inspection report within 15 days after the inspections.
    D. Witness Availability: Personnel of the State and the Department 
shall be mutually available to serve as witnesses in enforcement actions 
taken by either party.

[[Page 606]]

                        Article VII: Enforcement

    A. Commission Enforcement: The Commission shall have primary 
enforcement authority on Federal lands in accordance with the Program 
and this Agreement. During any joint inspection by OSM and the 
Commission, the Commission shall take appropriate enforcement action, 
including issuance of orders of cessation and notices of violation. OSM 
and the Commission shall consult prior to issuance of any decision to 
suspend or revoke a permit.
    B. Notification: The Commission and OSM shall promptly notify each 
other of all violations of applicable laws, regulations, orders, 
approved mining and reclamation plans and permits subject to this 
Agreement and of all actions taken with respect to such violations.
    C. Secretary's Authority: (1) This Agreement does not affect or 
limit the Secretary's authority to enforce violations of laws other than 
the Federal Act. (2) During any inspection made solely by OSM or any 
joint inspection where the Commission and OSM fail to agree regarding 
the propriety of any particular enforcement action, OSM may take any 
enforcement action necessary to comply with 30 CFR parts 843 and 845. 
Such enforcement action shall be based on the substantive standards 
included in the approved Program and shall be taken using the procedures 
and penalty system contained in 30 CFR parts 843 and 845.

                           Article VIII: Bonds

    A. Bond Coverage and Terms: The Commission and OSM shall require all 
operators on Federal lands to submit a single performance bond to cover 
the operator's responsibilities under the Federal Act and the Program, 
payable to both the United States and North Dakota. The performance bond 
shall be of sufficient amount to comply with the requirements of both 
State and Federal law and release of the performance bond shall be 
conditioned upon compliance with all applicable requirements. If this 
Agreement is terminated, the bond will continue in effect and to the 
extent that Federal lands are involved will be payable to the United 
States.
    Submission of a performance bond does not satisfy the requirements 
for a Federal lease bond required by 43 CFR subpart3474 or a lessee 
protection bond required in addition to a performance bond, in certain 
circumstances, by section 715 of the Federal Act.
    B. Bond Release: The Commission shall obtain OSM's concurrence prior 
to releasing the operator from any performance bonding obligation 
required under the Program for any Federal lands containing leased 
Federal coal. For surface coal mining and reclamation operations on 
other Federal lands, the Commission shall obtain the concurrence of the 
Federal land management agency prior to releasing the performance bond. 
The Commission shall advise OSM of any release of and adjustments made 
to the performance bond.
    C. Forfeiture: The operator's performance bond shall be subject to 
forfeiture with the consent of OSM, in accordance with the procedures 
and requirements of the Program.

             Article IX: Designation of Lands as Unsuitable

    The Commission and OSM shall cooperate in the review and processing 
of petitions to designate lands as unsuitable for surface coal mining 
operations. When either agency receives a petition which could have an 
impact on lands the designation of which as unsuitable for mining would 
be the responsibility of the other agency, the agency shall: (1) Notify 
the other of its receipt of the petition and of the anticipated schedule 
for reaching a decision; and (2) request and fully consider data, 
information and views of the other. The authority to designate Federal 
lands as unsuitable for mining is reserved to the Secretary or his 
designated representative.

             Article X: Termination of Cooperative Agreement

    This Agreement may be terminated as follows:
    A. Termination by the State: The Agreement may be terminated by the 
Commission upon written notice to the Secretary, specifying the date 
upon which the Agreement shall be terminated. The date of termination 
shall not be less than 90 days from the date of the notice.
    B. Termination by the Secretary: This Agreement may be terminated by 
the Secretary according to the following procedures:
    1. A written notice from the Secretary to the Commission shall 
specify the grounds upon which he proposes to terminate the Agreement. 
In addition, a written notice containing the grounds for termination 
shall be published in the Federal Register affording the Commission and 
the public a minimum of 30 days for comment.
    2. A written notice in the Federal Register and a local newspaper of 
general circulation shall also specify the date and place within the 
State of North Dakota where the Commission and the public shall be 
afforded the opportunity for a hearing. The date of such hearing shall 
not be less than 30 days from the date of publication in the Federal 
Register. Prior to the time fixed for public hearing, representatives of 
the Commission may be permitted to appear and confer in person with 
representatives of the Secretary and present oral or written statements, 
and any other documents relative to the proposed termination.
    3. The proposed termination hearing shall be conducted by OSM and a 
record shall be

[[Page 607]]

made of the hearing. The Commission shall be entitled to have legal, and 
technical and other representatives present at the hearing, and may 
present, either orally or in writing, evidence, information, testimony, 
documents, records or materials as may be relevant to the issues 
involved.
    4. The Secretary's decision shall be made after the hearing and 
close of the comment period.
    5. A decision to terminate the Agreement may be made if the 
Secretary finds in writing that:
    (a) The Commission has substantially failed to comply with the 
requirements of the Federal Act, 30 CFR parts 740-746, the Program, or 
provisions of this Agreement; or
    (b) The Commission has failed to comply with any undertaking by the 
Commission in this Agreement upon which the approval of the Program, 
this Agreement, or grants by OSM for administration or enforcement of 
the Program or this Agreement were based.
    6. The Secretary shall send written notice of the decision and 
findings to the Commission and publish notice of it in the Federal 
Register.
    7. This Agreement shall terminate not less than 60 days after 
publication of the notice of the decision to terminate in the Federal 
Register. The Commission may remedy any failure during the 60-day 
period. If the Secretary determines that the State has taken effective 
remedial action, the Agreement will not terminate.
    C. Termination by Operation of Law: This Agreement shall terminate 
by operation of law under either of the following circumstances:
    1. When no longer authorized by Federal law or North Dakota laws and 
regulations; or
    2. Upon termination or withdrawal of the Secretary's approval of the 
Program pursuant to 30 CFR part 733.
    D. Mutual Termination: This Agreement may be terminated at any time 
upon mutual agreement by the Secretary and the Commission.

           Article XI: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated as provided in Article X, it 
may be reinstated upon application by the Commission and upon its giving 
evidence satisfactory to the Secretary that the Commission can and will 
comply with all the provisions of the Agreement and that the Commission 
has remedied all defects in administration for which this Agreement was 
terminated.

            Article XII: Amendments to Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Commission 
and the Secretary. An amendment proposed by one party shall be submitted 
to the other with a statement of the reasons for such proposed 
amendment. The amendment shall be adopted or rejected in accordance with 
the requirements of 30 CFR 745.11. The party to whom the proposed 
amendment is submitted shall signify its acceptance or rejection of the 
proposed amendment and if rejected shall state the reason for rejection.

           Article XIII: Changes in State or Federal Standards

    A. Time for Change: The Secretary or the State may from time to time 
promulgate new Federal or State regulations, including new or revised 
performance or reclamation requirements or enforcement or administration 
procedures. OSM and the Commission shall immediately inform each other 
of any final changes in their respective laws or regulations as provided 
in 30 CFR part 732. Each party shall, if it is determined to be 
necessary to keep this Agreement in force, change or revise its 
regulations and request necessary legislative action. Such changes shall 
be made under the procedures of 30 CFR part 732 for changes to the 
Program and section 501 of the Federal Act for changes to the Federal 
lands program.
    B. Copies of Changes: The State and OSM shall provide each other 
with copies of any changes to their respective laws, rules, regulations, 
and standards pertaining to the enforcement and administration of this 
Agreement.

           Article XIV: Changes in Personnel and Organization

    The Commission and the Secretary shall, consistent with 30 CFR part 
745, advise each other of changes in the organization, structure, 
functions, duties, and funds of the offices, departments, divisions, and 
persons within their organizations which could affect administration and 
enforcement of this Agreement. Each shall promptly advise the other in 
writing of changes in key personnel, including the head of a department 
or division, or changes in the functions or duties of persons occupying 
the principal offices within the structure of the program. The 
Commission and OSM shall advise each other in writing of changes in the 
location of offices, addresses, telephone numbers, and changes in the 
names, location and telephone numbers of their respective mine 
inspectors and the area within the State for which such inspectors are 
responsible.

                    Article XV: Reservation of Rights

    In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that have 
not been expressly addressed in

[[Page 608]]

this Agreement that the State or the Secretary may have under other laws 
or regulations, including but not limited to those listed in appendix A.

                        Article XVI: Definitions

    Terms and phrases used in this Agreement which are defined in 30 CFR 
part 700, 701 and 740 shall be given the meanings set forth in those 
definitions.

    Approved:
                                                          James G. Watt,
                                              Secretary of the Interior.
    Dated: August 11, 1983.

                                                         Allen I. Olson,
                                               Governor of North Dakota.
    Dated: August 30, 1983.

                                                            Bruce Hagen,
                      President, North Dakota Public Service Commission.
    Dated: August 30, 1983.

                                                        Leo M. Reinbold,
                   Commissioner, North Dakota Public Service Commission.
    Dated: August 30, 1983.

                                                         Dale Sandstrom,
                   Commissioner, North Dakota Public Service Commission.
    Dated: August 30, 1983.

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701, et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181, et seq., and 
implementing regulations including 30 CFR part 211 et seq.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321, et 
seq., and implementing regulations including 40 CFR 1500 et seq.
    4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations including 50 CFR part 402.
    5. The National Historic Preservation Act of 1966, 16 U.S.C. 470, et 
seq., and implementing regulations, including 36 CFR part 800.
    6. The Clean Air Act, 42 U.S.C. 7401, et seq., and implementing 
regulations.
    7. The Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq., 
and implementing regulations.
    8. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    9. The Reservoir Salvage Act of 1960, amended by the Preservation of 
Historical and Archaeological Data Act of 1974, 16 U.S.C. 469, et seq.
    10. Executive Order 11593, Cultural Resource Inventories on Federal 
Lands.
    11. Executive Order 11988 (May 24, 1977), for flood plain 
protection. Executive Order 11990 (May 24, 1977), for wetlands 
protections.
    12. The Mineral Leasing Act for Acquired Lands, 30 U.S.C 351, et 
seq., and implementing regulations.
    13. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291, et seq.
    14. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 
470aa., et seq.
    15. The Constitution of the United States.
    16. The Constitution of the State of North Dakota, State law, and 
rules.

[48 FR 41395, Sept. 15, 1983, as amended at 53 FR 11501, Apr. 7, 1988]



PART 935_OHIO--Table of Contents



Sec.
935.1 Scope.
935.10 State regulatory program approval.
935.11 Conditions of State regulatory program approval.
935.12 [Reserved]
935.15 Approval of Ohio regulatory program amendments.
935.16 Required regulatory program amendments. [Reserved]
935.20 Approval of Ohio abandoned mine land reclamation plan.
935.25 Approval of Ohio abandoned mine land reclamation plan amendments.
935.30 State-Federal Cooperative Agreement.

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



Sec. 935.1  Scope.

    This part contains all rules applicable only within Ohio that have 
been adopted under the Surface Mining Control and Reclamation Act of 
1977.

[47 FR 34717, Aug. 10, 1982]



Sec. 935.10  State regulatory program approval.

    The Ohio State regulatory program as submtted on February 29, 1980, 
and resubmitted on January 22, 1982, is conditionally approved, 
effective August 16, 1982. Beginning on that date, the Department of 
Natural Resources shall be deemed the regulatory authority in Ohio for 
all surface coal mining and reclamation operations on non-Indian and 
non-Federal lands. Only surface coal mining and reclamation operations 
on non-Indian and non-Federal lands shall be subject to the provisions 
of the Ohio permanent regulatory program. Copies of the approved 
program, as amended, are available at:

[[Page 609]]

    (a) Ohio Department of Natural Resources, Division of Reclamation, 
Building H-2, 1855 Fountain Square Court, Columbus, Ohio 43224.
    (b) [Reserved]

[48 FR 23193, May 24, 1983, as amended at 59 FR 17930, Apr. 15, 1994]



Sec. 935.11  Conditions of State regulatory program approval.

    The approval of the Ohio State program is subject to the State 
revising its program to correct the deficiencies listed in this section. 
The program revisions may be made, as appropriate, to the statute, the 
regulations, the program narrative, or the Attorney General's opinion. 
This section indicates, for the general guidance of the State, the 
component of the program to which the Secretary requires the change be 
made.
    (a)-(e) [Reserved]
    (f) Steps will be taken to terminate the approval found in Sec. 
935.10.
    (g) [Reserved]
    (h) Steps will be taken to terminate the approval found in Sec. 
935.10:
    (1) Unless Ohio submits to the Secretary by September 30, 1985, a 
revised program amendment that demonstrates how the alternative bonding 
system will assure timely reclamation at the site of all operations for 
which bond has been forfeited.
    (i)-(j) [Reserved]
    (k) Steps will be initiated to terminate the approval found in Sec. 
935.10.
    (l)-(m) [Reserved]

[47 FR 34717, Aug. 10, 1982, as amended at 48 FR 1958, Jan. 17, 1983; 48 
FR 23193, May 24, 1983; 48 FR 46027, Oct. 11, 1983; 48 FR 46531, Oct. 
13, 1983; 49 FR 18482, May 1, 1984; 49 FR 37590, Sept. 25, 1984; 49 FR 
43953, Nov. 1, 1984; 50 FR 25710, June 21, 1985]



Sec. 935.12  [Reserved]



Sec. 935.15  Approval of Ohio regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
September 16, 1982...................  January 17, 1983.......  OAC:13-1-01.
October 13, 1982.....................  January 31, 1983, July   OAC 1501:13-1-02(E), -07; 13-4-03 through -05.
                                        22, 1983.
January 6, 1983......................  May 24, 1983...........  ORC as amended by SB 240 and 323.
June 10, 1983, August 11, 1983,        October 6, 1983........  OAC 1501:13-1-02; 13-4-04, -05, -13, -14; 13-9-
 August 22, 1983.                                                04; 13-12-03, -04.
July 18, 1983........................  October 13, 1983.......  ORC 1513:01(G)(2), (U); -13(A)(1), (C)(1), (3).
January 30, 1984.....................  April 23, 1984.........  OAC 1501:13-4-13(K)(1).
February 8, 1984.....................  May 1, 1984............  OAC 1501:13-9-15(E)(5); ORC1513-101(J), (k),
                                                                 (L).
December 28, 1983....................  June 5, 1984...........  OAC 1501:13-14-01.
March 5, 1984........................  August 8, 1984.........  OAC 1501:13-14-05.
June 15, 1984........................  September 25, 1984.....  OAC 1501:13-4-04(I), (L), -13(I), (J), (L); 13-9-
                                                                 04(B)(5), (G)(15); and Division Advisory Memo
                                                                 No. 31.
July 23, 1984........................  November 1, 1984.......  ORC contained in Substitute House Bill No. 164.
March 9, 1984........................  November 7, 1984.......  OAC 1501:13-4-13(E)(2).
September 17, 1984...................  December 31, 1984......  OAC 1501:13-2-15.
July 10 and 23, 1984.................  March 18, 1985.........  OAC 1501:13-9-06.
July 11, 1984, July 23, 1984.........  May 23, 1985...........  OAC 1501:13-14-01; ORC 1513-3-01 through -22.
July 3, 1985.........................  September 18, 1985.....  OAC 1513-3-01 through -22.
November 15, 1985....................  April 9, 1986, June 9,   ORC 1513.02, .07, .08, .10, .16, .18, .20, .25,
                                        1986.                    .27 through .33, .37, .181; 5749.02, .021.
January 15, 1986.....................  May 6, 1986............  OAC 1513-3-01 through 04, 16, 17.
October 26, 1985.....................  July 17, 1986..........  OAC 1501:13-3-05; 13-4-04, -13; 13-9-04.
November 6, 1984.....................  July 28, 1986..........  OAC 1501:13-14-03.
March 3, 1986........................  September 18, 1986.....  OAC 1501:13-4-05, 14; 13-9-07.
July 10, 1986........................  October 29, 1986.......  OAC 1501:13-9-06.
October 8, 1986......................  March 5, 1987..........  OAC 1501:13-9-07.
December 1, 1986, January 13, 1987...  June 19, 1987..........  OAC1501:13-7-03(B)(5)(g), (7)(h).

[[Page 610]]

 
May 16, 1986.........................  July 17, 1987..........  OAC 1501:13-1-01, -02, -07, -10, -13; 13-3-02
                                                                 through -07; 13-4-01 through -04, -06, -08, -
                                                                 12, -13, -14; 13-5-01; 13-6-03; 13-7-01 through
                                                                 -08; 13-8-0; 13-9-01, -04, -06, -08, -09, -10
                                                                 (formerly 13-14-05), -11, -13, -14, -15; 13-10-
                                                                 01; 13-13-02 through -06, -08; 13-14-01 through
                                                                 -05; 1513-3-03, -08; ORC 1513.16(H)(2), (3),
                                                                 .18(F).
January 28, 1987.....................  August 10, 1987........  OAC 1513-3-02, -03, -04, -08, -19, -21.
June 26, 1987........................  December 9, 1987.......  OAC 1501:13-1-02.
January 16, 1987.....................  March 10, 1988.........  OAC 1501:13-7-03(B)(5)(g).
October 16, 1987.....................  May 27, 1988...........  OAC 1501:13-1-02(M), (PP), (YY); 13-3-03 (C),
                                                                 (G), -04(E); 13-4-01(B), -04(A), (K)(7), -
                                                                 05(K), -13(A), (K)(7), -14(J); 13-5-01(E)(16).
March 24, 1988.......................  July 14, 1988..........  OAC 1513:1513-3-21(E) (3), (4), (5).
May 24, 1988, August 23, 1988........  December 22, 1988......  OAC 1501:13-1-02; 13-4-03, -04, -05; 13-4-13, -
                                                                 14; 13-7-03, -04, -05, -07(B); 13-9-04, -07, -
                                                                 09, -14, -15; 13-10-01; 13-14-02, -05.
March 8, 1988, July 1, 1988..........  January 30, 1989.......  OAC 1501:13-4-02(B)(1)(b), (B)(1)(c), (C)(1),
                                                                 (C)(1)(a).
April 17, 1987.......................  February 21, 1989......  OAC 1501:13-9-15(A)(1)(a), (F)(8), (e)(i),
                                                                 (f)(i), (F)(9) through (12).
November 3, 1987.....................  December 15, 1989......  OAC 1501:13-9-15(F)(4)(c).
January 26, 1989.....................  January 31, 1990.......  OAC 1501:13-9-15(A)(1)(a), (F), (G), (H),
                                                                 (I)(2)(c), (4)(c), (8), (b), (f)(i), (I)(9).
October 2, 1989......................  April 20, 1990.........  ORC 1513.02(J), .08(A), .18(B), (C), (F), (H),
                                                                 .24, .37(J).
August 11, 1989......................  June 5, 1990...........  ORC 1513.05, .13(E), (F); OAC 1513-3-21.
December 5, 1989.....................  July 20, 1990..........  OAC 1501:13-7-01(A)(4), (5), (6)(a)(i), (ii), -
                                                                 05(A)(1), (2)(b), (iv), (c)(ii), (B)(2)(c), (4)
                                                                 through (4)(e).
October 20, 1988.....................  July 25, 1990..........  OAC 1501:13-3-07(B)(8); 13-4-01(B); 13-7-
                                                                 01(A)(6)(c)(ii), -05(A)(3), (5)(b)(i),
                                                                 (B)(2)(e); 13-9-07(K)(1)(b).
May 11, 1990.........................  August 21, 1990........  OAC 1501:13-7-06(F).
March 1, 1989........................  September 18, 1990.....  OAC 13-1-02, 03; 13-4-14; 13-5-01; 13-7-04, -05;
                                                                 13-9-11; 13-14-06.
January 20, 1989.....................  September 24, 1990.....  ORC 1513.07, .16; OAC 1501:13-4-15(A) through
                                                                 (I).
May 11, 1990.........................  February 21, 1991......  OAC 1501:13-9-15(I)(2)(c)(ii).
December 7, 1990.....................  February 26, 1991......  OAC 1501:13-10-01(G)(1).
June 15, 1990........................  April 19, 1991.........  OAC 1501:13-4-03(A), (B), (C); 13-5-01(A)(4)(a),
                                                                 (D), and letter of interpretation dated April
                                                                 1, 1991 (Administrative Record Number OH-1498),
                                                                 (E)(8), (F), (G)(5), (H)(5), -02; 13-14-
                                                                 02(A)(8), (C)(7), (D)(1)(c), (I); ORC
                                                                 1513.07(E)(6).
January 31, 1991.....................  May 21, 1991, June 6,    OAC 1501:03-9-13.
                                        1991.
March 1, 1991........................  May 30, 1991...........  OAC 1501:13-9-11(D)(3).
January 31, 1989.....................  October 21, 1991.......  ORC 1513.07(B)(4); OAC 1501:13-6-03(C)(1)(b),
                                                                 (I)(1)(d), (I)(1)(e).
August 23, 1991......................  December 9, 1991.......  OAC 1501:13-14-02(A)(2).
November 16, 1987, October 12, 1990..  April 13, 1992.........  ORC 1513.01(G)(1)(a); 1513.07(E)(5), (6); OAC
                                                                 1501:13-1-02(S)(1)(a); 13-4-16; 13-5-03; 13-14-
                                                                 01; OAC 1513.16(F)(3)(b).
January 16, 1990.....................  July 27, 1992..........  OAC 1501:13-1-02(E)(1)(d), (YYYY); 13-4-
                                                                 05(H)(2)(c), (M)(1)(d), (e), (2), -14(H)(2)(c),
                                                                 (L)(1)(d), (e), (2); 13-9-04(G)(3)(b)(i), (ii),
                                                                 (iii), (H)(1)(c), (h)(i), (ii), (iii), (2)(h),
                                                                 (3)(b); 13-9-09(C)(2)(b), (5), 15(F) through
                                                                 (I)(2)(c)(i), (ii), (3)(c); 13-10-01(B)(1),
                                                                 (D)(1), (F) (5), (6), (G)(1), (G)(3), (G)(4);
                                                                 13-11-02(A); ORC 1513.01(G)(2).
July 22, 1991, September 10, 1991....  August 18, 1992........  OAC 1501:13-9-04(H)(1)(i), (2)(d), (e), (g),
                                                                 (h), -07(H).
May 12, 1992.........................  September 11, 1992.....  OAC 1501:13-1-01(D)(1), (2).
December 11, 1991....................  October 28, 1992.......  OAC 1501:13-7-06(A), (1), (4), (B), (1), (2)(b),
                                                                 (C), (1), (2), (a), (b), (c), (C)(3), (4),
                                                                 (E)(1), (E)(4).
June 30, 1992........................  January 12, 1993.......  OAC 1501:13-13-06(A).
May 12, 1992, June 22, 1992..........  January 14, 1993.......  OAC 1501:13-5-01(A)(4)(a), 13-9-15(J)(1).
December 9, 1992.....................  April 23, 1993.........  OAC 1501:13-1-01(B).
February 7, 1992, March 2, 1992......  June 11, 1993..........  ORC 1513.02(F)(3).
April 5, 1993........................  June 22, 1993..........  OAC 1501:13-1-02 (HHHH), 13-4-15(B)(5),
                                                                 (I)(2)(a), (3)(d).
February 11, 1993....................  August 16, 1993........  OAC 1501:13-9-15.
January 15, 1993.....................  September 3, 1993......  OAC 1501:13-4-02(C)(2) through (K).
May 1, 1992, June 11, 1993...........  May 2, 1994............  OAC 1501:13-4-06(E)(2)(g), 13-9-15, 17(B); Ohio
                                                                 Department of Natural Resources Guidelines for
                                                                 Evaluating Revegetation Success; Division of
                                                                 Reclamation Policy/Procedure Directive,
                                                                 Regulatory 94-2.
May 17, 1994.........................  July 27, 1994..........  OAC 1501:13-9-17.
March 15, 1993.......................  September 1, 1994......  Program Amendment Number 63.
February 23, 1994....................  October 12, 1994.......  OAC 1501:13-1-05, -10(B)(2).
March 4, 1993........................  November 15, 1994......  OAC 1501:13-4-05(E)(1)(g), (H)(1)(b)(iv),
                                                                 (c)(iv), -14(E)(1)(f), (H)(1)(b)(iv), (c)(iv);
                                                                 13-9-04(B)(1)(a), (b), (G)(2)(e); Ohio's Policy/
                                                                 Procedure Directive, Inspection and Enforcement
                                                                 93-4.
July 19, 1994........................  May 11, 1995...........  Combined Program Amendments 25R and 56R: Ohio
                                                                 Guidelines for Evaluating Revegetation Success.
May 17, 1994.........................  May 12, 1995...........  Program Amendment 68R: Contemporaneous
                                                                 Reclamation.
September 22, 1994...................  July 17, 1995..........  OAC 1501:13-1-03(D)(2), (I)(1), (J)(1), (L)(1),
                                                                 (2), (3) (Financial interest statements); 13-7-
                                                                 05(A)(2)(b)(ii), (c)(ii), (B)(2)(c).
March 28, 1995.......................  July 25, 1995..........  OAC 1501:13-14-01.

[[Page 611]]

 
February 2, 1995.....................  November 9, 1995.......  Program Amendment 63R: Ohio regulatory and
                                                                 Abandoned Mine Land reclamation programs.
July 3, 1995.........................  February 28, 1996......  OAC 1501:13-4-15(d)(2); Policy Directives 92-3,
                                                                 93-4.
May 23, 1996.........................  September 4, 1996......  OAC 1501:13-4-12(G)(3)(d), (4)(f), (i); 13-09-
                                                                 08(A)(1), (B); 13-13-01.
May 17, 1996.........................  October 29, 1996.......  OAC 1501:13-14-01(A)(2)(b), (c).
August 26, 1996......................  February 28, 1997......  OAC 1501:13-1-02(OOO), (JJJJJJ); 13-4-08(A)(15),
                                                                 -10(A)(6), -12(L), -15(B); 13-5-01(D)(7), (D),
                                                                 (E)(19), (A), (B), (C); 13-9-15(F)(2), (A),
                                                                 (3), (a), (4)(d), (G)(3)(a), (H)(2), (I)(6),
                                                                 (J)(1)(b), (L), (2), (M)(4), (O), (1) through
                                                                 (6).
October 3, 1996......................  October 14, 1997.......  OAC 1501:13-6-03, (A)(1) (a) through (f), (B),
                                                                 (1), (2), (F)(2), (a) through (f), (C)(2), (a),
                                                                 (b), (D)(9), (10), (11).
June 24, 1997........................  February 24, 1998......  ORC 1513.13(E).
February 11, 1993....................  September 29, 1998.....  OAC 1501:13-9-15(F)(4)(c), (F)(5), and (F)(6).
December 30, 1997....................  December 4, 1998.......  OAC 1501:13-4-05, 1501:13-4-12, 1501:13-4-14,
                                                                 1501: 13-7-05, 1501:13-9-04.
January 21, 1999.....................  April 13, 1999.........  OAC 1513-3-21.
March 16, 1999.......................  November 22, 1999......  OAC 1501:13-1-04.
June 11, 2003........................  October 3, 2003........  OAC 1501:13-9-10 (A)(1), (3), (B), (B)(7), (9),
                                                                 (14), (14)(e), (C)(1), (2), (3), (4), (5),
                                                                 (D)(1), (2)(b), (E)(1), (2), (5), (F)(1),
                                                                 (1)(b), (1)(f), (3), (4), (4)(a), (4)(b), and
                                                                 (4)(c).
November 7, 2003.....................  September 27, 2004.....  OAC 1501:13-1-02(A), (D), (N), (O), (R), (MMMM),
                                                                 (OOOO); 1501:13-4- 15(C)(2)(a),(b),(c);
                                                                 (C)(3)(b); (E)(3); (F)(1), (H)(3)(c).
August 30, 2006......................  May 9, 2007............  OAC 1501:13-1-03(D)(2), (I)(1), (J)(1), (L)(1),
                                                                 (L)(2), and the deletion of (L)(3).
January 22, 2009.....................  November 29, 2010......  OAC 1513-3-01; 3-02(B); 3-02(D)(4); 3-02(H)-
                                                                 (I)(1); 3-03(C); 3-04(B)(7); 3-04(H); 3-08(F);
                                                                 3-09(B)-(C); 3-10(C); 3-11(A)(4); 3-11(C); 3-
                                                                 11(E)-(G); 3-12(A)-(C); 3-13(C)(2)-(3); 3-
                                                                 14(A)(2)-(4); 3-16(E)(2); 3-16(F)(2); 3-16(G);
                                                                 3-16(I); 3-18(F); 3-19(A); 3-19(F); 3-19(I).
----------------------------------------------------------------------------------------------------------------


[62 FR 9950, Mar. 5, 1997, as amended at 62 FR 53234, Oct. 14, 1997; 63 
FR 9139, Feb. 24, 1998; 63 FR 51833, Sept. 29, 1998; 63 FR 66989, Dec. 
4, 1998; 64 FR 17981, Apr. 13, 1999; 64 FR 63690, Nov. 22, 1999; 68 FR 
57356, Oct. 3, 2003; 69 FR 57647, Sept. 27, 2004; 72 FR 26295, May 9, 
2007; 75 FR 72951, Nov. 29, 2010]



Sec. 935.16  Required regulatory program amendments. [Reserved]



Sec. 935.20  Approval of Ohio abandoned mine land reclamation plan.

    The Ohio Abandoned Mine Land Reclamation Plan, as submitted on 
October 20, 1980, and as revised on November 21, 1980, November 2, 1981, 
and January 22, 1982, is approved effective August 10, 1982. Copies of 
the approved plan are available at the following locations:
    (a) Ohio Department of Natural Resources, Division of Reclamation, 
Building H-2, 1855 Fountain Square Court, Columbus, Ohio 43224.
    (b) Office of Surface Mining Reclamation and Enforcement, Eastland 
Professional Plaza, 4480 Refugee Road, suite 201, Columbus, Ohio 43232.

[59 FR 17930, Apr. 15, 1994]



Sec. 935.25  Approval of Ohio abandoned mine land reclamation plan amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
January 6, 1983......................  May 24, 1983...........  ORC 1513.37(D)(2), (4), (5), (J).
August 20, 1986......................  August 17, 1987........  Ohio AMLR Plan 3.7.4, 3.9.1; RAMP Committee
                                                                 role; AMLR program staff organization.
October 2, 1989......................  April 20, 1990.........  ORC 1513.02(J), .08(A), .18(B), (C), (F), (H),
                                                                 .24, .37(J).
February 19, 1992....................  September 24, 1992.....  AML emergency program; ORC 1513.37(C)(1),
                                                                 (L)(1), (2); OAC 1501:13-6-03(C)(1)(b),
                                                                 (I)(1)(d), (e).
March 19, 1996.......................  March 26, 1997.........  Revisions to the Ohio Abandoned Mine Land
                                                                 Reclamation Plan to provide for the reclamation
                                                                 of areas causing acid mine drainage AMD and to
                                                                 revise the project selection process.
----------------------------------------------------------------------------------------------------------------


[[Page 612]]


[62 FR 9951, Mar. 5, 1997, as amended at 62 FR 14310, Mar. 26, 1997; 62 
FR 32687, June 17, 1997]



Sec. 935.30  State-Federal Cooperative Agreement.

    The Governor of the State of Ohio, acting through the Department of 
Natural Resources, Division of Reclamation (Division), and the Secretary 
of the Department of the Interior, acting through the Office of Surface 
Mining Reclamation and Enforcement (OSMRE), enter into a Cooperative 
Agreement (Agreement) to read as follows:

 Article I: Introduction, Purpose, and Responsible Administrative Agency

    A. Authority: This Agreement is authorized by section 523(c) of the 
Surface Mining Control and Reclamation Act (Act), 30 U.S.C. 1273(c), 
which allows a State with a permanent regulatory program approved by the 
Secretary under 30 U.S.C. 1253, to elect to enter into an Agreement with 
the Secretary of the Department of the Interior for State regulation of 
surface coal mining and reclamation operations on Federal lands. This 
Agreement provides for State regulation of surface coal mining and 
reclamation operations and of coal exploration operations not subject to 
43 CFR part 3480, subparts 3480 through 3487, on Federal lands in Ohio 
which are under the jurisdiction of the United States Department of 
Agriculture, Forest Service, except those lands containing leased 
Federal coal, consistent with State and Federal laws governing such 
activities in Ohio, the Federal lands program (30 CFR parts 740-745) and 
the Ohio State program (approved State program).
    B. Purpose: The purpose of this Agreement is to (a) foster Federal-
State cooperation in the regulation of surface coal mining and 
reclamation operations; (b) eliminate intergovernmental overlap and 
duplication; and (c) provide uniform and effective application of the 
approved State program on all lands in Ohio, except those containing 
leased Federal coal, in accordance with the Act, the approved State 
program, and this Agreement.
    C. Responsible Administrative Agencies: The Division shall be 
responsible for administering this Agreement on behalf of the Governor. 
The Assistant Secretary, Land and Minerals Management, acting through 
OSM, shall administer this Agreement on behalf of the Secretary in 
accordance with the regulations in 30 CFR Chapter VII. The Federal lands 
in Ohio covered by this Agreement are only those under the jurisdiction 
of the United States Department of Agriculture, Forest Service (Forest 
Service) and include all or parts of the Wayne National Forest. It is 
understood by both parties that the Forest Service will continue to be 
involved in mining operations on its respective lands pursuant to its 
laws, regulations, agreements and restrictions. These requirements are 
in addition to the requirements discussed in this Agreement.

                       Article II: Effective Date

    After it has been signed by the Secretary and the Governor, this 
Agreement shall be effective upon publication in the Federal Register as 
a final rule. This Agreement shall remain in effect until terminated as 
provided in Article V.B. or X.

                        Article III: Definitions

    Any terms and phrases used in this Agreement which are defined in 
the Act, 30 CFR parts 700, 701, and 740, or the approved State program 
shall be given the meanings set forth in said definitions. Where there 
is a conflict between the above referenced State and Federal 
definitions, the definitions used in the approved State program will 
apply, except in the case of a term or phrase which defines the 
Secretary's non-delegable responsibilities under the Act and other laws.

                        Article IV: Applicability

    In accordance with the Federal lands program in 30 CFR parts 740-
745, the laws, regulations, terms and conditions of the approved State 
program (conditionally approved on August 10, 1982, 30 CFR part 935, or 
as hereinafter amended in accordance with 30 CFR 732.17) are applicable 
to surface coal mining and reclamation operations on Federal lands in 
Ohio except as otherwise stated in this Agreement, the Act, 30 CFR 
745.13, or other applicable laws or regulations.
    This Agreement does not apply to surface coal mining and reclamation 
operations on lands containing leased Federal coal. This Agreement 
applies only to lands under the jurisdiction of the Forest Service.

                     Article V: General Requirements

    The Governor and the Secretary affirm that they will comply with all 
the provisions of this Agreement and will continue to meet all the 
conditions and requirements specified in this Article.
    A. Authority of State Agency: The Division has and shall continue to 
have the authority under State law to carry out this Agreement.
    B. Funds: Upon application by the Division and subject to the 
availability of appropriations, the Department shall provide the State 
with the funds to defray the costs associated with carrying out 
responsibilities under this Agreement as provided in section

[[Page 613]]

705(c) of the Act and 30 CFR part 735. If the State requests funds and 
sufficient funds have not been appropriated to OSM, OSM and the Division 
shall meet promptly to decide on appropriate measures that will ensure 
that surface coal mining and reclamation operations are regulated in 
accordance with the approved State program. If agreement cannot be 
reached, then either party may terminate the Agreement. Funds provided 
to the State under this Agreement shall be reduced; in proportion to the 
amount of fees collected by the State that are attributable to the 
Federal lands covered by this Agreement.
    C. Reports and Records: The Division shall make annual reports to 
OSMRE on the results of the Division's implementation and administration 
of this Agreement, pursuant to 30 CFR 745.12(d). Upon request, the 
Division and OSMRE shall exchange information developed under this 
Agreement, except where prohibited by Federal law. OSMRE shall provide 
the Division with a copy of any final evaluation report prepared 
concerning the Division's administration and enforcement of this 
Agreement.
    D. Personnel: The Division shall have the necessary personnel to 
implement this Agreement fully in accordance with the provisions of the 
Act and the approved State program.
    E. Equipment and Laboratories: The Division will assure itself 
access to facilities which are necessary to carry out the requirements 
of the Agreement.

            Article VI: Review of Permit Application Package

    The Division shall assume the primary responsibility for the review 
of permit application packages for surface coal mining and reclamation 
and coal exploration operations on Forest Service lands covered by this 
Agreement. The Division shall coordinate the review of permit 
application packages with the Forest Service and other Federal agencies 
which may be affected by the proposed surface coal mining and 
reclamation operation to ensure compliance with Federal laws other than 
the Act and regulations other than the approved State program. When 
requested by the State, OSMRE shall assist the State in identifying 
Federal agencies other than the Forest Service which may be affected by 
the mining proposal.
    A. Submission of Permit Application Package: The Division shall 
require an operator proposing to mine on Forest Service lands to submit 
a permit application package in an appropriate number of copies to the 
Division. The permit application package shall be in the format required 
by the Divison and include any supplemental information (as specified by 
OSMRE or the Forest Service) needed to satisfy the requirements of non-
delegable requirements of the Act, Federal laws other than the Act, and 
regulations other than the approved State program.
    B. Coordination With Affected Agencies: Upon receipt, the Division 
shall transmit a copy of the complete permit application package to the 
Forest Service and to other Federal agencies affected by the proposed 
surface coal mining and reclamation operation with a request for review 
pursuant to 30 CFR 740.13(c)(4). OSM shall determine whether or not a 
proposed surface coal mining and reclamation operation is prohibited or 
limited by the requirements of section 522(e) of the Act (30 U.S.C. 
1272(e)) and 30 CFR parts 760-762 with respect to Federal areas 
designated by Congress as unsuitable for mining and shall make any 
necessary determinations under section 522(b) of the Act. The Division 
shall obtain, in a timely manner, the comments of the Forest Service and 
other Federal agencies affected by the mining proposal.
    C. Contact With the Applicant: As a matter of practice, OSMRE will 
not independently initiate contacts with the applicant regarding permit 
application packages. However, OSMRE reserves the right to act 
independently of the Division to carry out any non-delegable 
responsibilities under the Act, or under other Federal laws and 
regulations, provided, however, that OSMRE shall inform the Division of 
the necessity of such action taken and send copies of all relevant 
correspondence to the Division.
    D. File and Records: The Division shall maintain a title of all 
original correspondence with the applicant and any information received 
which may have a bearing on decisions regarding surface coal mining and 
reclamation operations on Forest Service lands. Upon request, the 
Division shall provide, for OSMRE or Forest Service review, copies of 
any titles and records for surface coal mining and reclamation 
operations on Forest Service lands.
    E. Permit Application Decision and Permit Issuance: After 
consultation with the Forest Service and after making a finding of 
compliance with the approved State program and other applicable 
requirements, the Division may approve a permit application or 
application for permit revision or renewal and issue a permit. The 
permit issued by the Division shall condition the initiation of surface 
coal mining and reclamation operations on compliance with the 
requirements of the approved State program and, as applicable, 
requirements of OSM or the Forest Service pursuant to Federal laws other 
than the Act and regulations other than the approved State program. 
After the Division issues its decision on the permit application, it 
shall promptly send a notice of the action to OSM and to the Forest 
Service.

[[Page 614]]

                        Article VII: Inspections

    The Division shall conduct inspections on Forest Service lands 
covered by this Agreement and prepare and file inspection reports in 
accordance with the approved State program.
    A. Inspection Reports: The Division shall, within 15 days of 
conducting any inspection on Federal lands, file with OSM an inspection 
report describing (1) the general conditions of the lands under the 
permit; (2) whether the operator is complying with the applicable 
performance and reclamation requirements; and (3) the manner in which 
specific operations are being conducted.
    B. Division Authority: The Division shall be the point of contact 
and primary inspection authority in dealing with the operator concerning 
operations and compliance with the requirements covered by this 
Agreement, except as described in this Agreement and the Secretary's 
regulations. Nothing in this Agreement shall prevent inspections by 
authorized Federal or State agencies for purposes other than those 
covered by this Agreement.
    C. OSM Authority: For the purpose of evaluating the manner in which 
this Agreement is being carried out and to insure that performance and 
reclamation standards are being met, OSM may conduct inspections of 
surface coal mining and reclamation operations on Federal lands, without 
prior notice to the Division. In order to facilitate a joint Federal-
State inspection, when OSM is responding to a citizen complaint of an 
imminent danger to the health or safety of the public or of a 
significant, imminent environmental harm pursuant to 30 CFR 
842.11(b)(1)(i), it will contact the Division, if circumstances and time 
permit, prior to the Federal inspection. OSM may conduct any inspections 
necessary to comply with 30 CFR part 842. If an inspection is made 
without Division inspectors, OSM shall provide the Division with a copy 
of the inspection report within 10 days after inspection.
    D. Witness Availability: Personnel of the State and OSM shall be 
mutually available to serve as witnesses in enforcement actions taken by 
either party.

                        Article VIII: Enforcement

    A. Division Enforcement: The Division shall have primary enforcement 
authority on Federal lands covered by this Agreement in accordance with 
the approved State program and this Agreement. During any joint 
inspection by OSM and the Division, the Division shall take appropriate 
enforcement action, including issuance of orders of cessation and 
notices of violation.
    B. Notification: The Division shall promptly notify the Forest 
Service of all violations of applicable laws, regulations, orders, and 
approved permits for surface coal mining and reclamation operations on 
lands administered by the Forest Service.
    C. Secretary's Authority: (1) This Agreement does not affect or 
limit the Secretary's authority to enforce violations of laws other than 
the Act. (2) During an inspection made solely by OSM or any joint 
inspection where the Division and OSMRE fail to agree regarding the 
propriety of any particular enforcement action, OSM may take any 
enforcement action necessary to comply with 30 CFR parts 843 and 845. 
Such enforcement action shall be based on the Act or the applicable 
substantive provisions included in the regulations of the approved State 
program and shall be taken using the procedures and penalty system 
contained in 30 CFR parts 843 and 845.

                            Article IX: Bonds

    A. Performance Bond: The Division shall require all operators on 
Federal lands covered by this Agreement to submit a performance bond to 
cover the operator's responsibilities under the Federal Act and the 
approved State program, payable to both the United States and Ohio. The 
performance bond shall be of sufficient amount to comply with the 
requirements of the approved State program and any other conditions of 
the permit. Release of the performance bond shall be conditioned upon 
compliance with all applicable requirements. The Division shall obtain 
the concurrence of the Forest Service prior to releasing the operator 
from any obligation under the performance bond. If this Agreement is 
terminated, (1) the bond will revert to being payable only to the United 
States to the extent that Federal lands are involved, and (2) the bond 
will be delivered by the Division to OSM if only Federal lands are 
covered by the bond.
    B. Forfeiture: In the event of forfeiture by an operator of the 
performance bond for surface coal mining and reclamation operations on 
Federal lands covered by this Agreement, the State shall use funds 
received from bond forfeiture and, where necessary, funds from the Ohio 
Reclamation Forfeiture Special Account (pursuant to section 1513.18 of 
the Ohio Revised Code) to ensure that reclamation is accomplished in 
accordance with the approved State program and the approved permit.

             Article X: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

           Article XI: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or in part it may be 
reinstated under the provisions of 30 CFR 745.16.

[[Page 615]]

             Article XII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIII: Changes in State or Federal Standards

    A. Effect of Changes: The Secretary or the State may promulgate new 
Federal or State regulations, including new or revised performance or 
reclamation requirements or enforcement or administration procedures. 
OSM and the Division shall immediately inform each other of any final 
changes and of any effect such changes may have on the cooperative 
agreement. If it is determined to be necessary to keep this Agreement in 
force, the Division shall request necessary State legislative action and 
each party shall revise its regulations or promulgate new regulations, 
as applicable. Such changes shall be made under the procedures of 30 CFR 
part 732 for changes to the approved State program and sections 501 and 
523 of the Federal Act for changes to the Federal lands program.
    B. Copies of Changes: The State and OSM shall provide each other 
with copies of any changes to their repsective laws, rules, regulations, 
and standards pertaining to the enforcement and administration of this 
Agreement.

           Article XIV: Changes in Personnel and Organization

    The Division and the Secretary shall, consistent with 30 CFR part 
745, advise each other of substantial changes in statutes, regulations, 
funding, staff, or other changes which could affect the administration 
and enforcement of this Agreement.

                    Article XV: Reservation of Rights

    In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that have 
not been expressly addressed in this Agreement that the State or the 
Secretary may have under other laws or regulations, including but not 
limited to those listed in appendix A.

    Approved:
                                                     Richard F. Celeste,
                                                       Governor of Ohio.
    Date: April 19, 1989.

                                                           Manuel Lujan,
                                              Secretary of the Interior.
    Date: December 11, 1989.

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations, including 43 CFR part 3480.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations, including 40 CFR part 1500.
    4. The Endangered Species Act, as amended, 16 U.S.C. 1531 et seq., 
and implementing regulations, including 50 CFR part 402.
    5. The Fish and Wildlife Coordination Act, as amended, 16 U.S.C. 661 
et seq., 48 Stat. 401.
    6. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR part 800.
    7. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    8. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    9. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    10. The Reservoir Salvage Act of 1960, as amended by the 
Preservation of Historical and Archaeological Data Act of 1974, 16 
U.S.C. 469 et seq.
    11. Executive Order 11593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    12. Executive Order 11988 (May 24, 1977), for flood plain 
protection.
    13. Executive Order 11990 (May 24, 1977), for wetlands protection.
    14. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
    15. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
    16. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 
470aa, et seq.
    17. The Constitution of the United States.
    18. The Surface Mining Control and Reclamation Act of 1977, 30 
U.S.C. 1201 et seq., as amended.
    19. 30 CFR chapter VII.
    20. The Constitution of the State of Ohio.
    21. Ohio Revised Code, Chapter 1531.
    22. Ohio Administrative Code, Chapter 1501.

[49 FR 14739, Apr. 13, 1984, as amended at 54 FR 51743, Dec. 18, 1989]



PART 936_OKLAHOMA--Table of Contents



Sec.
936.1 Scope.
936.10 State regulatory program approval.
936.15 Approval of Oklahoma regulatory program amendments.
936.16 Required regulatory program amendments.
936.20 Approval of Oklahoma abandoned mine land reclamation plan.

[[Page 616]]

936.25 Approval of Oklahoma abandoned mine land reclamation plan 
          amendments.
936.30 State-Federal Cooperative Agreement.

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



Sec. 936.1  Scope.

    This part contains all rules applicable only within Oklahoma that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[46 FR 4910, Jan. 19, 1981]



Sec. 936.10  State regulatory program approval.

    The Secretary conditionally approved the Oklahoma regulatory 
program, as submitted on February 28, 1980, amended on June 11, 1980, 
and resubmitted on December 8, 1980, effective January 19, 1981. He 
fully approved the Oklahoma program, as amended on August 15, 1985, 
effective January 14, 1986. Copies of the approved program are available 
at:
    (a) Oklahoma Department of Mines, 4040 N. Lincoln, Suite 107, 
Oklahoma City, OK 73105.
    (b) Office of Surface Mining Reclamation and Enforcement, Tulsa 
Field Office, 5100 East Skelly Drive, Suite 470, Tulsa, OK 74135-6548.

[64 FR 20167, Apr. 26, 1999]



Sec. 936.15  Approval of Oklahoma regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
January 22, 1982.....................  April 2, 1982..........  Permanent program regulations to replace those
                                                                 approved by the Secretary on January 19, 1981,
                                                                 and subsequently rescinded by the Oklahoma
                                                                 Legislature on February 12, 1981.
February 22, 1983....................  May 4, 1983............  Sec. Sec.  816.42(b) and 817.42(b).
May 13, 1983.........................  August 28, 1984........  45 O.S. 1981, Sec. Sec.  745.2, 746.16,
                                                                 774(c), 786(E), 788.17 through 788.19, 816.64;
                                                                 Parts 842, 843, 845; Sec. Sec.  4.1000
                                                                 through 4.1400; Sections governing the
                                                                 transfer, sale or assignment of rights under
                                                                 permits, inspection and enforcement provisions.
July 8, 1983.........................  March 18, 1985.........  DOM/RR 776.12 through .15, .17, .18; 815.5, .11;
                                                                 816.1,.2.
July 16, 1985........................  December 10, 1985......  45 O.S. 1981.
August 15, 1985......................  January 14, 1986.......  Administration and funding of the Small Operator
                                                                 Assistance Program.
September 11, 1985...................  January 16, 1986.......  DOM/RR 700.5: definition of ``surface coal
                                                                 mining operations'', 701.5: definitions of
                                                                 ``coal preparation'' and ``coal preparation
                                                                 plant''.
August 8, 1985.......................  April 28, 1986.........  DOM/RR part 850 establishing blaster training,
                                                                 examination and certification program.
May 18, 1988.........................  March 27, 1990, May 15,  DOM/RR 700.1 through .5, .11 through .15; 701.1
                                        1990.                    through .5, .11; 705.1 through .6, .11, .13,
                                                                 .15, .17, .18, .19, .21, .22; 707.1, .4, .5,
                                                                 .10, .11, .12; 761.1, .3, .5, .11, .12; 762.1,
                                                                 .4, .5, .11 through .14; 764.1, .11, .13, .15,
                                                                 .17, .19, .21, .23, .25; 772.1, .2, .3, .11
                                                                 through .16; 773.1, .5, .11, .12, .13, .15,
                                                                 .17, .19, .20, .21; 774.1, .11, .13, .15, .17;
                                                                 775.1, .11, .13; 777.1, .11, .13, .14, .15,
                                                                 .17; 778.1, .13 through .18, .20, .21; 779.1,
                                                                 .2, .4, .11, .12, .18, .19, .21, .22, .24, .25;
                                                                 780.1, .2, .4, .11 through .16, .18, .21, .22,
                                                                 .23, .25, .27, .29, .31, .33, .35, .37, .38;
                                                                 783.1, .2, .4, .11, .12, .18, .19, .21, 22,
                                                                 .24, .25; 784.1, .2, .4, .11 through .26, .29,
                                                                 .30, .200; 785.1, .2, .13, .14, .15, .17, .18,
                                                                 .20, .21, .22; 795.3, .5 through .9, .12;
                                                                 800.1, .4, .5, .11 through .17, .20, .21, .23,
                                                                 .30, .40, .50, .60; 810.1, .2, .4, .11; 815.1,
                                                                 .13, .15; 816.1, .2, .11, .13, .14, .15, .22,
                                                                 .41, .42, .43, .45, .46, .47, .49, .56, .57,
                                                                 .59, .61, .62, .64, .66, .67, .68, .71 through
                                                                 .74, .79, .81, .83, .84, .87, .89, .95, .97,
                                                                 .99, .100, .102, .104 through .107, .111, .113,
                                                                 .114, .116, .121, .122, .131, .132, .133, .150,
                                                                 .151, .180, .181, .200; 817.1, .2, .11, .13,
                                                                 .14, .15, .22, .41, .42, .43, .45, .46, .47,
                                                                 .49, .56, .57, .59, .61, .62, .64, .66, .67,
                                                                 .68, .71 through .74, .81, .83, .84, .87, .89,
                                                                 .95, .97, .99, .100, .102, .106, .107, .111,
                                                                 .113, .114, .116, .121, .122, .131, .132, .133,
                                                                 .150, .151, .180, .181, .200; 819.1, .11, .13,
                                                                 .15, .17, .19, .21; 823.1, .2, .11 through .15;
                                                                 824.1, .2, .11; 827.1, .11, .12; 828.1, .2,
                                                                 .11, .21; 842.1, .11 through .16; 843.1, .5,
                                                                 .11 through .18, .20, .22; 845.1, .2, .11
                                                                 through .21; 846.1, .5, .12, .14, .17, .18;
                                                                 850.1, .5, .12 through .15.
March 30, 1990.......................  December 18, 1990,       DOR/RR 700.5, 700.11(b)(4), and part 702,
                                        February 15, 1991.       concerning an exemption for operations when the
                                                                 extraction of coal is incidental to the
                                                                 extraction of other minerals.

[[Page 617]]

 
June 21, 1990........................  January 9, 1991........  DOM/RR 772.12(b)(12); 773.5(a)(2): the
                                                                 definition of ``owned or controlled and owns or
                                                                 controls''.
February 6, 1992.....................  December 7, 1993.......  Bond Release Guidelines, including revegetation
                                                                 success standards, statistically valid sampling
                                                                 techniques, guidelines for phase I, II, and III
                                                                 bond release.
February 17, 1994....................  January 10, 1995.......  Bond Release Guidelines, including revegetation
                                                                 success standards, statistically valid sampling
                                                                 techniques, guidelines for phase I, II, and III
                                                                 bond release; Subsections I.E.3.b; I.F.3.d,
                                                                 .5.b; II.B.2.d; III.B.2.d; IV.A.1.a, b; V.B.2.c
                                                                 through f; VI.B.2.e; VII.A, B; Appendices A, F,
                                                                 J, O, R, V.
September 14, 1994...................  March 10 and 29, 1995..  OAC 460:20-35-1, -3(a)(2), (A), (B), (D), (b), -
                                                                 6(a), (b)(1) through (6), (d), -7(a), (2), (3);
                                                                 460:20-43-12(b)(3), -45-12(b)(3); OAC,
                                                                 certification of construction of siltation
                                                                 structures by qualified, registered
                                                                 professional engineers and land surveyors; OAC
                                                                 460:20-43-12(f)(8), -47, -48, -53(1); 460:20-45-
                                                                 28, -53(1); 460:20-49-5(a)(1), -6, -7(5).
July 5, 1995.........................  November 9, 1995.......  OAC 460:20-61-10(b)(1).
April 26, 1996.......................  July 24, 1996..........  OAC 460:20-6-1 through -5.
July 3, 1997.........................  August 10, 1998........  OAC 460:20-43-46(c)(4) (A) through (G); 460:20-
                                                                 45-46(c)(4) (A) through (G); Oklahoma Bond
                                                                 Release Guidelines--Appendices A and R.
December 18, 1997....................  January 22, 1999.......  460:20-3-5; 20-27-14(a), (a)(2), (a)(3), (b),
                                                                 (c)(3), (f); 20-31-9(a), (a)(2), (a)(3), (b),
                                                                 (c)(2), (f); 20-33-6(a); 20-35-6(a), (b)(1),
                                                                 and (b)(3) through (b)(6); 20-35-7(a); 20-35-8;
                                                                 20-37-15(a)(3); 20-43-12(a) through (a)(3); 20-
                                                                 43-14(a)(1) through (a)(3), (a)(4)(A) and (B),
                                                                 (a)(5), (a)(6), and (a)(9) through (a)(12),
                                                                 (c)(2)(A) and (B); 20-43-27(c); 20-43-29(a); 20-
                                                                 45-12(a) through (a)(3); 20-45-14(a)(1) through
                                                                 (a)(3), (a)(4)(A) and (B), (a)(5), (a)(6), and
                                                                 (a)(9) through (a)(12), (c)(2)(A) and (B); 20-
                                                                 45-27(c); 20-45-29(a); 20-57-2(g)(4)(A) and
                                                                 (h); and 20-61-11(a).
September 28, 1998...................  September 28, 1999.....  OAC 460:2-7-6; 2-8; 20-15-11 through 14.
September 30, 1999...................  December 17, 1999......  Oklahoma Bond Release Guidelines--Subsections
                                                                 II.A.1.f and g, II.B.1.a, II.B.2.a; III.A.1.f
                                                                 and g, III.B.1.a, III.B.2.a; V.B.2.d and
                                                                 V.B.2.e; appendix A; Policy Statements dated
                                                                 May 21, 1996, and September 30, 1999.
January 13, 2000.....................  May 26, 2000...........  OAC 460:20-5-3(4); 20-5-9(a)-(c); 20-5-10(c)(3);
                                                                 20-5-12(b)(1).
January 25, 2001.....................  May 9, 2001............  OCA 460:20-17-3.
November 20, 2001....................  May 24, 2002...........  OAC 460:20-7-2; 20-7-3; 20-7-4 Introductory
                                                                 paragraph, (2), (3), and (4)(B); 20-7-4.1; 20-7-
                                                                 5(a), (b)(1) and (2), (c), (d), (e), (f)(1) and
                                                                 (3), (g), (h); 20-13-5(b)(14), (d)(2)(D).
November 1, 2001.....................  January 17, 2003.......  Sections 460:20-3-5; 20-5-1; 20-5-2; 20-5-3; 20-
                                                                 5-4(a)(7) through (d); 20-5-6; 20-5-7(a) and
                                                                 (b); 20-5-8; 20-5-9(b); 20-5-10(a), (a)(2),
                                                                 (b)(1) through (c)(4); 20-5-13; 20-15-4; 20-15-
                                                                 6(b)(4), (b)(5), and (c)(13); 20-33-12; 20-43-
                                                                 46(b)(6) and (c)(2) through (c)(3)(B); 20-45-
                                                                 46(b)(6) and (c)(2) through (c)(3)(B).
July 15, 2005........................  March 27, 2006.........  Oklahoma Administrative Code (OAC) 460:20-25-
                                                                 11(a)(11); 460:20-29-11(a)(11); 460:20-31-
                                                                 13(a)(3); 460:20-43-14(a)(1), (a)(3),(a)(9)(A),
                                                                 (a)(9)(B)(iii), (a)(11)(A), and (a)(14); 460:20-
                                                                 43-46(b)(3)(A), (b)(3)(A)(i)-(iii), (b)(3)(B)-
                                                                 (E); 460:20-43-52(d)(3) and (e)(1); OAC 460:20-
                                                                 45-46(b)(3)(A), (b)(3)(A)(i)-(iii), (b)(3)(B)-
                                                                 (E) and(c)(2); and OAC 460:20-45-47(c)(2),
                                                                 (c)(4) and (c)(4)(A)-(E).
November 26, 2008....................  April 9, 2010..........  Notice of violations: Section 460:20-59-4.
----------------------------------------------------------------------------------------------------------------


[62 FR 9951, Mar. 5, 1997, as amended at 63 FR 42579, Aug. 10, 1998; 64 
FR 3423, Jan. 22, 1999; 64 FR 52232, Sept. 28, 1999; 64 FR 70586, Dec. 
17, 1999; 65 FR 34096, May 26, 2000; 66 FR 23608, May 9, 2001; 67 FR 
36516, May 24, 2002; 68 FR 2451, Jan. 17, 2003; 71 FR 15033, Mar. 27, 
2006; 75 FR 18051, Apr. 9, 2010]



Sec. 936.16  Required regulatory program amendments.

    Pursuant to 30 CFR 732.17(f)(1), Oklahoma is required to submit to 
OSM by the specified date the following written, proposed program 
amendment, or a description of an amendment to be proposed that meets 
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with Oklahoma's established administrative 
or legislative procedures.
    (a)-(g) [Reserved]

[60 FR 2520, Jan. 10, 1995; 64 FR 70587, Dec. 17, 1999]



Sec. 936.20  Approval of Oklahoma abandoned mine land reclamation plan.

    The Secretary approved the Oklahoma abandoned mine land reclamation 
plan, as submitted on July 30, 1981, effective January 21, 1982. Copies 
of the approved plan are available at:

[[Page 618]]

    (a) Oklahoma Conservation Commission, 2800 N. Lincoln Blvd., Suite 
160, Oklahoma City, OK 73105.
    (b) Office of Surface Mining Reclamation and Enforcement, Tulsa 
Field Office, 5100 East Skelly Drive, Suite 470, Tulsa, OK 74135-6548.

[64 FR 20168, Apr. 26, 1999]



Sec. 936.25  Approval of Oklahoma abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
August 24, 1989, November 13, 1995...  May 28, 1996...........  OAC 155:15, 884.13.(c)(1), (2), (3), (5), (7),
                                                                 (d)(1).
November 3, 1997.....................  February 18, 1998......  Emergency response reclamation program.
November 1, 2004.....................  April 4, 2005..........  Oklahoma Plan Sec. Sec.  884.13(c)2--Project
                                                                 Ranking and Selection; (c)3--Coordination with
                                                                 Other Entities; and (c)7--Public Participation.
----------------------------------------------------------------------------------------------------------------


[62 FR 9952, Mar. 5, 1997, as amended at 63 FR 8126, Feb. 18, 1998; 70 
FR 16945, Apr. 4, 2005]



Sec. 936.30  State-Federal Cooperative Agreement.

    The Governor of the State of Oklahoma and the Secretary of the 
Department of the Interior (Secretary) enter into a Cooperative 
Agreement (Agreement) to read as follows:

       Article I: Introduction, Purpose, and Responsible Agencies

    A. This Agreement is authorized by section 523(c) of the Surface 
Mining Control and Reclamation Act (Act), 30 U.S.C. 1273(c), which 
allows a State with a permanent regulatory program approved by the 
Secretary under 30 U.S.C. 1253, to elect to enter into an Agreement for 
the regulation and control of surface coal mining, operations on Federal 
lands. This Agreement provides for State regulation consistent with the 
Act, the Federal lands program (30 CFR, chapter VII, subchapter D) and 
the Oklahoma State program (Program) for surface coal mining and 
reclamation operations on Federal lands.
    B. The purposes of this Agreement are to (a) foster Federal-State 
cooperation on the regulation of surface coal mining (b) minimize 
intergovernmental overlap and duplication and (c) provide uniform and 
effective application of the Program on all non-Indian lands in Oklahoma 
in accordance with the Act and the Program.
    C. The Oklahoma Department of Mines (ODM), under the direction of 
the Oklahoma Mining Commission, shall be responsible for administering 
this Agreement on behalf of the Governor. The Office of Surface Mining 
Reclamation and Enforcement (OSMRE) shall administer this Agreement on 
behalf of the Secretary.

                       Article II: Effective Date

    After being signed by the Secretary and the Governor, this Agreement 
shall be effective 30 days after publication in the Federal Register as 
a final rule. This Agreement shall remain in effect until terminated as 
provided in Article XI.

                        Article III: Definitions

    The terms and phrases used in this Agreement which are defined in 
the Act, 30 CFR parts 700, 701, and 740, the Program, the Oklahoma Coal 
Reclamation Act of 1979, and in the rules and regulations promulgated 
pursuant to those Acts, shall be given the meanings set forth in said 
definitions. Where there is conflict between the above-referenced State 
and Federal definitions, the definitions used in the approved State 
program will apply except in the case of a term which defines the 
Secretary's continuing responsibilities under the Act and other laws.

                        Article IV: Applicability

    A. In accordance with the Federal lands program, the laws, 
regulations, terms and conditions of the Oklahoma Program are applicable 
to Federal lands in Oklahoma except as otherwise stated in this 
Agreement, the Act, 30 CFR 740.4 and 745.13, or other applicable Federal 
laws, Executive Orders, or regulations.

[[Page 619]]

    B. The following permits will not be transferred to the State by 
this Agreement and will remain under the jurisdiction of OSMRE: 1. CFI-
Bokoshe (Federal Permit OK-0002), 2. Stigler No. 9 (Federal Permit OK-
0009), 3. Bokoshe No. 10 (Federal Permit OK-0001), and 4. McCurtain No. 
2 (Federal Permit OK-0002).
    C. Orders and decisions issued by ODM in accordance with the Program 
that are appealable shall be appealed to the reviewing authority in 
accordance with the Program. Orders and decisions issued by the 
Department that are appealable shall be appealed to the Department of 
the Interior's Office of Hearings and Appeals.

                     Article V: General Requirements

    The Governor and the Secretary affirm that they will comply with all 
the provisions of this Agreement.

                      A. Authority of State Agency

    ODM has and shall continue to have the authority under State law to 
carry out this Agreement.

                                B. Funds

    Upon Application by ODM and subject to appropriations, OSMRE will 
provide the State with the funds to defray the cost associated with 
carrying out its responsibilities under this Agreement as provided in 
section 705(c) of the Federal Act, the grant agreement, and 30 CFR 
735.16. Such funds will cover the full cost incurred by ODM in carrying 
out those responsibilities, provided that such cost does not exceed the 
estimated cost the Federal government would have expended to carry out 
such responsibilities in the absence of this Agreement; and provided 
that such State incurred cost per permitted acre of Federal land does 
not exceed the per permitted acre cost for similar administration and 
enforcement activities of the Program on non-Federal and non-Indian 
lands during the same time period.
    The ratio or cost split of Federal to non-Federal dollars allocated 
under this Agreement will be determined by OSMRE and ODM based on the 
projected cost for regulation of mines within Federal lands that are 
under the jurisdiction of the State, in consideration of the relative 
amounts of Federal and non-Federal lands involved. The designation of 
mines based on Federal land will be prepared by ODM and submitted to 
OSMRE's Tulsa Field Office. OSMRE will work with ODM to estimate the 
amount the Federal government would have expended for regulation of 
surface coal mining operations on Federal lands in Oklahoma in the 
absence of this Agreement.
    OSMRE and the State will discuss the OSMRE Federal land cost 
estimate, the ODM prepared list of acres by mine, and the State's 
overall cost estimate. After resolution of any issues, ODM will submit 
its grant application to OSMRE's Tulsa Field Office. The Federal lands/
non-Federal lands ratio will be applied to the final eligible total 
State expenditures to arrive at the total Federal reimbursement due the 
State. This ratio or cost split will be agreed upon by July of the year 
preceding the applicable fiscal year in order to enable the State to 
budget funds for the Program.
    The State may use the existing year's budget totals, adjusted for 
inflation and workload considerations, in estimating the regulatory cost 
for the following grant year. OSMRE will notify ODM as soon as possible 
if such projections are unrealistic.
    If ODM applies for a grant but sufficient funds have not been 
appropriated to OSMRE, OSMRE and ODM will promptly meet to decide on 
appropriate measures that will insure that mining operations on Federal 
lands in Oklahoma are regulated in accordance with the Program.
    Funds provided to ODM under this Agreement will be adjusted in 
accordance with Office of Management and Budget Circular A-102 
Attachment E.

                         C. Reports and Records

    ODM will make annual reports to OSMRE containing information with 
respect to compliance with terms of this Agreement pursuant to 30 CFR 
745.12(d). ODM and OSMRE will exchange, upon request, except where 
prohibited by Federal or State law, information developed under this 
Agreement.
    OSMRE will provide ODM with a copy of any final evaluation report 
prepared concerning State administration and enforcement of this 
Agreement. ODM comments on the report will be appended before 
transmission to the Congress or other interested parties.

                              D. Personnel

    ODM shall have the necessary personnel to fully implement this 
Agreement in accordance with the provisions of the Act, Federal lands 
program and the Program.

                      E. Equipment and Laboratories

    ODM will assure itself access to equipment, laboratories, and 
facilities to perform all inspections, investigations, studies, tests, 
and analyses that are necessary to carry out the requirements of the 
Agreement.

             F. Permit Application Fees and Civil Penalties

    The amount of the fee accompanying an application for a permit for 
operations on Federal lands in Oklahoma shall be determined in 
accordance with section 745.1 of the Oklahoma Coal Reclamation Act of 
1979, section 771.25 of the State regulations and the applicable 
provisions of the Program and

[[Page 620]]

Federal law. All permit fees and civil penalties collected from 
operations on Federal lands will be retained by the State and shall be 
deposited with the State Treasurer in the Oklahoma Department of Mines 
Revolving Fund. Permit fees will be considered Program income. The 
financial status report submitted pursuant to 30 CFR 735.26 shall 
include the amount of fees collected and attributable to Federal lands 
during the prior State fiscal year.

            Article VI: Review of Permit Application Package

               A. Submission of Permit Application Package

    ODM and the Secretary will require an applicant proposing to conduct 
surface coal mining and reclamation operations and activities on Federal 
lands to submit a permit application package (PAP) with an appropriate 
number of copies to ODM. ODM will furnish OSMRE and other Federal 
agencies with an appropriate number of copies of the PAP. The PAP will 
be in the form required by ODM and will include any supplemental 
information required by OSMRE and the Federal land management agency. 
Where section 522(e)(3) of the Act applies, ODM will work with the 
agency with jurisdiction over the publicly owned park, including units 
of the National Park System, or place included in the National Register 
of Historic Places (NRHP) to determine what supplemental information 
will be required.
    At a minimum, the PAP will satisfy the requirements of 30 CFR part 
740 and include the information necessary for ODM to make a 
determination of compliance with the Program and for OSMRE and the 
appropriate Federal agencies to make determinations of compliance with 
applicable requirements of the Act, the Federal lands program, and other 
Federal laws, Executive Orders, and the regulations for which they are 
responsible.

       B. Review Procedures Where Leased Federal Coal is Involved

    1. ODM will assume the responsibilities listed in 30 CFR 740.4(c) 
(1), (2), (3), (4), (6), and (7) to the extent authorized.
    In accordance with 30 CFR 740.4(c)(1), ODM will assume primary 
responsibility for the analysis, review, and approval or disapproval of 
the permit application component of the PAP for surface coal mining and 
reclamation operations and activities in Oklahoma where a mining plan is 
required. OSMRE will, at the request of the State, assist to the extent 
possible in this analysis and review.
    The Secretary will concurrently carry out his responsibilities that 
cannot be delegated to ODM under the Federal lands program, the Mineral 
Leasing Act (MLA), the National Environmental Policy Act (NEPA), this 
Agreement, and other applicable Federal laws. The Secretary will carry 
out these responsibilities in a timely manner and will avoid, to the 
extent possible, duplication of the responsibilities of the State as set 
forth in this Agreement and the Program. The Secretary will consider the 
information in the PAP and where appropriate, make decisions required by 
the Act, MLA, NEPA, and other Federal laws.
    Responsibilities and decisions which can be delegated to the State 
under other applicable Federal laws may be specified in working 
Agreements between OSMRE and ODM with concurrence of any Federal agency 
involved, and without amendment to this Agreement.
    2. ODM will be the primary point of contact for applicants regarding 
the review of the PAP for compliance with the Program and State laws and 
regulations. On matters concerned exclusively with regulations under 43 
CFR part 3480, subparts 3480 through 3487, the Bureau of Land Management 
(BLM) will be the primary point of contact with the applicant. ODM will 
send to OSMRE copies of any correspondence with the applicant and any 
information received from the applicant regarding the PAP. OSMRE will 
send to ODM copies of all OSMRE correspondence which may have a bearing 
on the PAP. OSMRE will request additional information from the applicant 
through ODM. Copies of OSMRE's request will be sent directly to the 
operator by OSMRE to help expedite the permit review process. The 
requested information will be submitted to OSMRE through ODM.
    BLM will inform ODM of its actions and provide ODM with a copy of 
documentation on all decisions. ODM will be responsible for informing 
the applicant of all joint State-Federal determinations. Where necessary 
to make the determination to recommend that the Secretary approve the 
mining plan, OSMRE will consult with and obtain the concurrences of BLM, 
the Federal land management agency, and other Federal agencies as 
required.
    The Secretary reserves the right to act independently of ODM to 
carry out his responsibilities under laws other than the Act or 
provisions of the Act not covered by the Program, and in instances of 
disagreement over the Act and the Federal lands program.
    3. ODM will, to the extent authorized, consult with the Federal land 
management agency and BLM pursuant to 30 CFR 740.4(c) (2) and (3), 
respectively. ODM will also be responsible for obtaining the comments 
and determinations of other Federal agencies with jurisdiction or 
responsibility over the Federal lands affected by the operations 
proposed in the PAP. ODM will request all Federal agencies to furnish 
their findings on any request for additional information to ODM within 
45 days of the date of receipt of the PAP. OSMRE will assist ODM in 
obtaining this information upon request of ODM.

[[Page 621]]

    ODM will be responsible for approval and release of performance 
bonds and liability insurance under 30 CFR 740.4(c)(4).
    ODM will prepare documentation to comply with the requirements of 
NEPA under 30 CFR 740.4(c)(7); however, OSMRE will retain the 
responsibility for the exceptions in 30 CFR 740.4(c)(7)(i)-(vii).
    4. OSMRE will assist ODM in carrying out ODM's responsibilities by:
    (a) Coordinating resolution of conflicts and difficulties between 
ODM and other Federal agencies in a timely manner;
    (b) Assisting in scheduling joint meetings, upon request, between 
State and Federal agencies;
    (c) Where OSMRE is assisting ODM in reviewing the PAP, furnishing to 
ODM the work product within 50 calendar days of receipt of the State's 
request for such assistance, unless a different time is agreed upon by 
OSMRE and ODM;
    (d) Exercising its responsibilities in a timely manner, governed to 
the extent possible by the deadlines established in the Program; and
    (e) Assuming all responsibility for ensuring compliance with any 
Federal lessee protection bond requirement.
    5. Review of the PAP:
    (a) OSMRE and ODM will coordinate with each other during the review 
process as needed. ODM will keep OSMRE informed of findings made during 
the review process which bear on the responsibilities of OSMRE or other 
Federal agencies. OSMRE will ensure that any information OSMRE receives 
which has a bearing on decisions regarding the PAP is promptly sent to 
ODM.
    (b) ODM will review the PAP for compliance with the Program and 
State law and regulations.
    (c) OSMRE will review the applicable portions of the PAP for 
compliance with the non-delegated responsibilities of the Act and for 
compliance with the requirements of other Federal laws, Executive 
orders, and regulations.
    (d) OSMRE and ODM will develop a work plan and schedule for PAP 
review and each will identify a person as the project leader. The 
project leaders will serve as the primary points of contact between 
OSMRE and ODM throughout the review process. Not later than 50 days 
after receipt of the PAP, unless a different time is agreed upon, OSMRE 
will furnish ODM with its review comments on the PAP and specify any 
requirements for additional data. To the extent practicable, ODM will 
provide OSMRE all available information that may aid OSMRE in preparing 
any findings.
    (e) ODM will prepare a State decision package, including written 
findings and supporting documentation, indicating whether the PAP is in 
compliance with the Program. The review and finalization of the State 
decision package will be conducted in accordance with procedures for 
processing PAP's agreed upon by ODM and OSMRE.
    (f) ODM may make a decision on approval or disapproval of the permit 
on Federal lands in accordance with the Program prior to the necessary 
Secretarial decision on the mining plan, provided that ODM advises the 
operator in the permit that Secretarial approval of the mining plan must 
be obtained before the operator may conduct coal development or mining 
operations on the Federal lease. ODM will reserve the right to amend or 
rescind any requirements of the permit to conform with any terms or 
conditions imposed by the Secretary in the approval of the mining plan.
    (g) The permit will include, as applicable, terms and conditions 
required by the lease issued pursuant to the MLA and by any other 
applicable Federal laws and regulations, including conditions imposed by 
the Federal land management agency relating to post-mining land use, and 
those of other affected agencies, and will be conditioned on compliance 
with the requirements of the Federal land management agency with 
jurisdiction.
    (h) In the case that valid existing rights (VER) are determined to 
exist on Federal lands under section 522(e)(3) of the Act where the 
proposed operation will adversely affect a unit of the National Park 
Service (NPS), ODM will work with the NPS to develop mutually agreed 
upon terms and conditions for incorporation into the permit to mitigate 
environmental impacts as set forth under Article X of this Agreement.
    (i) After making its decision on the PAP, ODM will send a notice to 
the applicant, OSMRE, the Federal land management agency, and any agency 
with jurisdiction over the publicly owned park or historic place 
included in the NRHP affected by a decision under section 522(e)(3) of 
the Act. A copy of the written findings and the permit will also be 
submitted to OSMRE.
    (j) OSMRE will provide technical assistance to ODM when requested, 
if available resources allow. OSMRE will have access to ODM files 
concerning operations on Federal lands.

          C. Review Procedures for Permit Revisions or Renewals

    1. Any permit revision or renewal for an operation on Federal lands 
will be reviewed and approved or disapproved by ODM after consultation 
with OSMRE on whether such revision or renewal constitutes a mining plan 
modification. OSMRE will inform ODM within 30 days of receiving a copy 
of a proposed revision or renewal, whether the permit revision or 
renewal constitutes a mining plan modification. Where approval of a 
mining plan modification is required, OSMRE and ODM will follow the 
review procedures

[[Page 622]]

where leased Federal coal is involved as outlined in this Agreement.
    2. OSMRE may establish criteria to determine which permit revisions 
and renewals clearly do not constitute mining plan modifications.
    3. Permit revisions or renewals on Federal lands which are 
determined by OSMRE not to constitute mining plan modifications or that 
meet the criteria for not being mining plan modifications will be 
reviewed and approved by ODM.
    4. Transfer, sale, or assignment of permit rights on Federal lands 
shall be processed in accordance with the Oklahoma Program and 30 CFR 
740.13(e).

                        Article VII: Inspections

    A. ODM will conduct inspections of all surface coal mining and 
reclamation operations on Federal lands, except for those operations 
listed in Article IV, in accordance with 30 CFR 740.4(c)(5) and the 
Program and prepare and file inspection reports in accordance with the 
Program.
    B. ODM will, subsequent to conducting any inspection pursuant to 30 
CFR 740.4(c)(5), and on a timely basis, file with OSMRE's Tulsa Field 
Office a legible copy of the completed State inspection report.
    C. ODM will be the point of contact and primary inspection authority 
in dealing with the operator concerning operations and compliance with 
the requirements covered by the Agreement, except as described 
hereinafter. Nothing in this Agreement will prevent inspections by 
authorized Federal or State agencies for purposes other than those 
covered by this Agreement. The Department may conduct any inspections 
necessary to comply with 30 CFR parts 842 and 843 and its obligations 
under laws other than the Act.
    D. OSMRE will ordinarily give ODM reasonable notice of its intent to 
conduct an inspection under 30 CFR 842.11 in order to provide State 
inspectors with an opportunity to join in the inspection. When OSMRE is 
responding to a citizen complaint of an imminent danger to the public 
health and safety, or of significant, imminent environmental harm to 
land, air or water resources pursuant to 30 CFR 842.11(b)(1)(ii)(C), it 
will contact ODM no less than 24 hours prior to the Federal inspection, 
if practicable, to facilitate a joint Federal/State inspection. All 
citizen complaints which do not involve an imminent danger or 
significant, imminent environmental harm will be referred to ODM for 
action. The Secretary reserves the right to conduct inspections without 
prior notice to ODM to carry out his responsibilities under the Act.

                        Article VIII: Enforcement

    A. ODM will have primary enforcement authority under the Act 
concerning compliance with the requirements of this Agreement and the 
Program in accordance with 30 CFR 740.4(c)(5). Enforcement authority 
given to the Secretary under other Federal laws and Executive orders 
including, but not limited to, those listed in appendix A (attached) is 
reserved to the Secretary.
    B. During any joint inspection by OSMRE and ODM, ODM will have 
primary responsibility for enforcement procedures including issuance of 
orders of cessation, notices of violation, and assessment of penalties. 
ODM will inform OSMRE prior to issuance of any decision to suspend or 
revoke a permit on Federal lands.
    C. During any inspection made solely by OSMRE or any joint 
inspection where ODM and OSMRE fail to agree regarding the propriety of 
any particular enforcement action, OSMRE may take any enforcement action 
necessary to comply with 30 CFR parts 843, 845, and 846. Such 
enforcement action will be based on the standards in the Program, the 
Act, or both, and will be taken using the procedures and penalty system 
contained in 30 CFR parts 843, 845, and 846.
    D. ODM and OSMRE will promptly notify each other of all violations 
of applicable laws, regulations, orders, or approved mining permits 
subject to this Agreement, and of all actions taken with respect to such 
violations.
    E. Personnel of ODM and OSMRE will be mutually available to serve as 
witness in enforcement actions taken by either party.
    F. This Agreement does not affect or limit the Secretary's authority 
to enforce violations of Federal laws other than the Act.

                            Article IX: Bonds

    A. ODM and the Secretary will require each operator who conducts 
operations on Federal lands to submit a single performance bond payable 
to Oklahoma and the United States to cover the operator's 
responsibilities under the Act and the Program. Such performance bond 
will be conditioned upon compliance with all requirements of the Act, 
the Program, State rules and regulations, and any other requirements 
imposed by the Department. Such bond will provide that if this Agreement 
is terminated, the portion of the bond covering the Federal lands will 
be payable only to the United States. ODM will advise OSMRE of any 
adjustments to the performance bond made pursuant to the Program.
    B. Prior to releasing the operator from any obligation under such 
bond, ODM will obtain the concurrence of OSMRE. OSMRE concurrence will 
include coordination with other Federal agencies having authority over 
the lands involved.
    C. Performance bonds will be subject to forfeiture with the 
concurrence of OSMRE, in accordance with the procedures and requirements 
of the Program.

[[Page 623]]

    D. Submission of a performance bond does not satisfy the 
requirements for a Federal lease bond required by 43 CFR subpart 3474 or 
lessee protection bond required in addition to a performance bond, in 
certain circumstances, by section 715 of the Act.

Article X: Designating Land Areas Unsuitable for All or Certain Types of 
Surface Coal Mining and Reclamation Operations and Activities and Valid 
            Existing Rights and Compatibility Determinations

                       A. Unsuitability Petitions.

    1. Authority to designate Federal lands as unsuitable for mining 
pursuant to a petition is reserved to the Secretary.
    2. When either ODM or OSMRE receives a petition that could impact 
adjacent Federal or non-Federal lands pursuant to section 522(c) of the 
Act, the agency receiving the petition will notify the other of receipt 
and the anticipated schedule for reaching a decision, and request and 
fully consider data, information and recommendations of the other. OSMRE 
will coordinate with the Federal land management agency with 
jurisdiction over the petition area, and will solicit comments from the 
agency.

        B. Valid Existing Rights and Compatibility Determinations

    The following actions will be taken when requests for determination 
of valid existing rights (VER) pursuant to section 522(e) of the Act or 
for determinations of compatibility pursuant to section 522(e)(2) of the 
Act are received prior to or at the time of submission of a PAP that 
involves surface coal mining and reclamation operations and activities:
    1. For Federal lands within the boundaries of any areas specified 
under section 522(e)(1) of the Act, OSMRE will determine whether VER 
exist for such areas.
    For non-Federal lands within section 522(e)(1) areas ODM, with the 
consultation and concurrence of OSMRE, will determine whether operations 
on such lands will or will not affect Federal lands. For such non-
Federal lands affecting Federal lands, OSMRE will make the VER 
determination.
    Under section 522(e)(1), for non-Federal lands within the boundaries 
of the National Park System, ODM, with the consultation and concurrence 
of OSMRE, will determine whether operations on such lands will or will 
not affect the Federal interest. For such non-Federal lands within the 
boundaries of the National Park System which affect the Federal 
interest, OSMRE will make the VER determinations.
    2. For Federal lands within the boundaries of any national forest 
where proposed operations are prohibited or limited by section 522(e)(2) 
of the Act and 30 CFR 761.11(b), OSMRE will make the VER determination.
    OSMRE will process requests for determinations of compatibility 
under section 522(e)(2) of the Act and 30 CFR 761.12(c).
    3. For Federal lands, ODM, with the consultation and concurrence of 
OSMRE, will determine whether any proposed operations will adversely 
affect units of the National Park System with respect to the 
prohibitions or limitations of section 522(e)(3) of the Act. For such 
operations adversely affecting units of the National Park System, ODM, 
with the consultation and concurrence of OSMRE, will make the VER 
determination.
    For Federal lands, ODM will determine whether any proposed operation 
will adversely affect any publicly owned parks other than those covered 
in the preceding paragraph and, in consultation with the State Historic 
Preservation Officer, places listed in the National Register of Historic 
Places (NRHP), with respect to the prohibitions or limitations of 
section 522(e)(3) of the Act.
    For Federal lands other than those on which the proposed operation 
will adversely affect units of the National Park System, ODM will make 
the VER determination for operations which are prohibited or limited by 
section 522(e)(3) of the Act. In the case that VER is determined to 
exist on Federal lands under section 522(e)(3) of the Act where a 
proposed operation will adversely affect a unit of the National Park 
System, ODM will work with the NPS to develop mutually agreed upon terms 
and conditions for incorporation into the permit in order to mitigate 
environmental impacts.
    In the case that VER is determined not to exist under section 
522(e)(3) of the Act or 30 CFR 761.11(c), no surface coal mining 
operations and activities will be permitted unless jointly approved by 
ODM and the Federal, State or local agency with jurisdiction over the 
publicly owned park or place included in the NRHP.
    4. ODM will process determinations of VER on Federal lands for all 
areas limited or prohibited by section 522(e)(4) and (5) of the Act as 
unsuitable for mining. For operations on Federal lands, ODM will 
coordinate with any affected agency or agency with jurisdiction over the 
proposed surface coal mining and reclamation operation.

            Article XI: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

[[Page 624]]

           Article XII: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or in part it may be 
reinstated under the provisions of 30 CFR 745.16.

            Article XIII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIV: Changes in State or Federal Standards

    A. The Department or the State may from time to time promulgate new 
or revised performance or reclamation requirements or enforcement and 
administration procedures. Each party will, if it determines it to be 
necessary to keep this Agreement in force, change or revise its 
regulations or request necessary legislative action. Such changes will 
be made under the procedures of 30 CFR part 732 for changes to the 
Program and under the procedures of section 501 of the Act for changes 
to the Federal lands program.
    B. ODM and the Department will provide each other with copies of any 
changes to their respective laws, rules, regulations or standards 
pertaining to the enforcement and administration of this Agreement.

            Article XV: Changes in Personnel and Organization

    Each party to this Agreement will notify the other, when necessary, 
of any changes in personnel, organization, and funding, or other changes 
that may affect the implementation of this Agreement to ensure 
coordination of responsibilities and facilitate cooperation.

                   Article XVI: Reservation of Rights

    This Agreement will not be construed as waiving or preventing the 
assertion of any rights in this Agreement that the State or the 
Secretary may have under laws other than the Act or their regulations, 
including but not limited to those listed in appendix A.

    Approved:
                                                          Henry Bellmon,
                                                   Governor of Oklahoma.
    Date: August 2, 1989.

                                                      Manuel Lujan, Jr.,
                                              Secretary of the Interior.
    Date: August 30, 1989.

[54 FR 37459, Sept. 11, 1989]



PART 937_OREGON--Table of Contents



Sec.
937.700 Oregon Federal program.
937.701 General.
937.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
937.707 Exemption for coal extraction incident to government-financed 
          highway or other construction.
937.761 Areas designated unsuitable for surface coal mining by Act of 
          Congress.
937.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
937.764 Process for designating areas unsuitable for surface coal mining 
          operations.
937.772 Requirements for coal exploration.
937.773 Requirements for permits and permit processing.
937.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
937.775 Administrative and judicial review of decisions.
937.777 General content requirements for permit applications.
937.778 Permit applications--minimum requirements for legal, financial, 
          compliance, and related information.
937.779 Surface mining permit applications--minimum requirements for 
          information on environmental resources.
937.780 Surface mining permit applications--minimum requirements for 
          reclamation and operation plan.
937.783 Underground mining permit applications--minimum requirements for 
          information on environmental resources.
937.784 Underground mining permit applications--minimum requirements for 
          reclamation and operation plan.
937.785 Requirements for permits for special categories of mining.
937.795 Small operator assistance.
937.800 General requirements for bonding of surface coal mining and 
          reclamation operations.
937.815 Performance standards--coal exploration.
937.816 Performance standards--surface mining activities.
937.817 Performance standards--underground mining activities.
937.819 Special performance standards--auger mining.
937.823 Special performance standards--operations on prime farmland.
937.824 Special performance standards--mountaintop removal.
937.827 Special performance standards--coal processing plants and 
          support facilities not located at or near the minesite or not 
          within the permit area for a mine.
937.828 Special performance standards--in situ processing.
937.842 Federal inspections.
937.843 Federal enforcement.
937.845 Civil penalties.
937.846 Individual civil penalties.
937.955 Certification of blasters.


[[Page 625]]


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

    Source: 47 FR 49822, Nov. 2, 1982, unless otherwise noted.



Sec. 937.700  Oregon Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in Oregon which have been adopted under the Surface 
Mining Control and Reclamation Act of 1977.
    (b) The rules in this part cross-reference pertinent parts of the 
permanent program regulations in this chapter. The full text of a rule 
is in the permanent program rule cited under the relevant section of the 
Oregon Federal program.
    (c) The rules in this part apply to all surface coal mining 
operations in Oregon conducted on non-Federal and non-Indian lands. The 
rules in Subchapter D of this chapter apply to operations on Federal 
lands in Oregon.
    (d) The information collection requirements contained in this part 
do not require approval by the Office of Management and Budget under 44 
U.S.C. 3507 because there are fewer than ten respondents annually.
    (e) The following provisions of Oregon laws provide, where 
applicable, for more stringent environmental control and regulation of 
surface coal mining operations than do the provisions of the Act and the 
regulations in this chapter. Therefore, pursuant to Section 505(b) of 
the Act, they shall not be construed to be inconsistent with the Act:
    (1) Oregon Revised Statutes (ORS) 468.700-468.997, pertaining to the 
control of water pollution.
    (2) ORS 498.002 and ORS 498.705, protecting fish and wildlife and 
their habitats.
    (3) ORS 509.125, prohibiting deleterious substances from being 
introduced into State waters.
    (4) ORS 509.140, requiring the approval of the Fish and Wildlife 
Commission before explosives may be used to construct a dam or similar 
structure.
    (5) ORS 509.600, prohibiting the injury or destruction of fish 
within 600 feet of any fishway. Prior approval of the Director, the 
Department of Fish and Wildlife, is required before contructing a dam or 
obstruction in State waters.
    (6) ORS 509.615, requiring that artificial watercourses must be 
screened.
    (f) The following are Oregon laws that interfere with the 
achievement of the purposes and requirements of the Act and are, in 
accordance with section 504(g) of the Act, pre-empted and superseded 
with respect to coal mining, except to the extent they provide for 
regulation of surface coal mining and reclamation operations which are 
exempt from the Surface Mining Control and Reclamation Act of 1977:
    (1) Oregon Surface Mining and Mine Land Reclamation Act, as amended, 
ORS 517.750-ORS 517.990.
    (2) Oregon Administrative Rules (OAR), Department of Geology and 
Mineral Industries, Division 30, Rules and Regulations, Oregon Mined 
Land Reclamation Act, OAR 632-30-005 through OAR 632-30-060.
    (3) ORS 273.551 and ORS 273.775 to ORS 273.790. The contractual and 
leasing responsibility of the Division of Lands over State lands and 
minerals is not affected by this Federal program.
    (4) ORS 275.340. Pre-empted to the extent that the State of Oregon 
construes this statute as delegating to cities and counties the 
authority to issue surface coal mining permits and related exploration 
permits.

[47 FR 49822, Nov. 2, 1982, as amended at 52 FR 13812, Apr. 24, 1987]



Sec. 937.701  General.

    Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and part 701 
of this chapter shall apply to surface coal mining operations in Oregon.



Sec. 937.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of other minerals 
for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]

[[Page 626]]



Sec. 937.707  Exemption for coal extraction incident to government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 937.761  Areas designated unsuitable for surface coal mining by Act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply to surface coal mining and reclamation operations.



Sec. 937.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface coal mine 
operations beginning one year after May 28, 1982.



Sec. 937.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to 
petitioning, initial processing, hearing requirements, decisions, data 
base and inventory systems, public information, and rith the February 
26, 1980, May 16, 1980, and August 15, 1980, opinions and orders of the 
U.S. District Court for the District of Columbia (In re: Permanent 
Surface Mining Regulation Litigation (Civ. Action No. 79-1144)).
    (a) NDAC 69-05.2-25-0shall apply to any person who conducts or seeks 
to conduct coal exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.
    (c) Where coal exploration is to occur on State lands or the 
minerals to be explored are owned by the State, a mineral lease issued 
by the Oregon Division of Lands authorizing the coal exploration is 
required to be filed with the permit application.

[52 FR 13812, Apr. 24, 1987]



Sec. 937.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.
    (c) Where coal exploration is to occur on State lands or the 
minerals to be explored are owned by the State, a mineral lease issued 
by the Oregon Division of Lands authorizing the coal exploration is 
required to be filed with the permit application.

[52 FR 13812, Apr. 24, 1987]



Sec. 937.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
application of the findings;
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and negotiate the 
date by

[[Page 627]]

which the information must be submitted; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 937.773(b)(2)(ii) by the specified date, the office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the application is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required by Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with actual site conditions. The applicant will be notified 
in advance of the time of the visit. At the time of the visit, the 
applicant shall have the locations of the proposed permit boundaries, 
topsoil storage areas, sediment control structures, roads, and other 
significant features contained in the application marked by flags.
    (c) In addition to the information required by subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) Where applicable, no person shall conduct surface coal 
exploration operations which result in the removal of more than 250 tons 
in one location, or surface coal mining operations without permits 
issued and/or certificates required by the State of Oregon, including 
compliance with Oregon's Statewide Planning Goals (ORS 197.180) and any 
relevant Country Comprehensive Land Use Plans (ORS 197.005-ORS 197.775); 
license from the Division of State Lands where mines or exploration are 
on State lands (ORS 273.005-273.815); Solid Waste Disposal Permits, 
Hazardous Waste Transportation and Disposal Permits, Industrial Waste 
Disposal Permits issued by the Department of Environmental Quality (ORS 
459.005-ORS 459-850); leases issued by the county where county 
designated forest lands are involved (ORS 275.340); noise restrictions 
enforced by the Department of Environmental Quality (ORS 467.010-
467.990); Air Contaminant Discharge Permits (ORS 468.005-ORS 468.997), 
Water Pollution Control Facilities Permits, Waste Discharge Permits (ORS 
468.900-ORS 468.997), Energy Facility Site Certificates (ORS 469.300-ORS 
469.570, ORS 469.990, ORS 469.992) issued by the Energy Facilities 
Siting Council; Department of Fish and Wildlife issues permits for dam 
use (ORS 509.600), for use of explosives used to construct dams or 
similar structures (ORS 509.140); the State Fire Marshall issues 
Certificates of Possession for persons having or using explosives (ORS 
480.210); the Division of State Lands issues license for use of dredging 
machines (ORS 517.611-ORS 517.700); the Department of water Resources 
issues permits with respect to the use, appropriation or diversion of 
State waters (ORS 537.130, ORS 537.135) and surface waters (ORS 537.135, 
ORS 537.140 and ORS 537.800), and permits relative to the design, 
construction and maintenance of dams, dikes or other hydraulic 
structures or works (ORS 540.350, ORS 540.400); matter may be removed 
from the beds and banks of State waters and fill may be deposited in 
State waters once a permit is obtained from the Division of State Lands 
(ORS 541.605-ORS 541.990).

[52 FR 13812, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 937.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved permit will be subject to review 
and approval by OSMRE.
    (1) Significant revisions shall be processed as if they are new 
applications in accordance with the public notice and hearing provisions 
of Sec. Sec. 773.6, 773.19(b) (1) and (2), and 778.21 and of part 775.

[[Page 628]]

    (2) OSMRE shall make every effort to approve or disapprove an 
application for permit revision within 60 days of receipt or such longer 
time as may be reasonable under the circumstance. If additional time is 
needed, OSMRE shall notify the applicant that the application is being 
reviewed, but more time is necessary to complete such review, setting 
forth the reasons and the additional time that is needed.
    (c) In addition to the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 
thirty days of either the publication of the newspaper advertisement 
required by Sec. 774.17(b)(2) of this chapter or receipt of an 
administratively complete application, whichever is later.

[52 FR 13813, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 937.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.

[52 FR 13813, Apr. 24, 1987]



Sec. 937.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
Applications, shall apply to any person who applies for a permit to 
conduct surface coal mining and reclamation operations.

[52 FR 13813, Apr. 24, 1987]



Sec. 937.778  Permit applications--minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance and Related Information, shall apply to 
any person who applies for a permit to conduct surface coal mining and 
reclamation operations.

[52 FR 13813, Apr. 24, 1987]



Sec. 937.779  Surface mining permit applications--minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface mining and 
reclamation operations.



Sec. 937.780  Surface mining permit applications--minimum requirements for 

reclamation and operation plan.

    (a) Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirement for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations on non-Federal and non-Indian lands.
    (b) Any application for a permit shall demonstrate compliance with 
the air quality control laws (ORS 468.275 through ORS 468.350 and ORS 
468.500 through ORS 468.580) administered by the Oregon Department of 
Environmental Quality and shall have obtained, where required, an Air 
Contaminant Discharge Permit from the Department of Environmental 
Quality (ORS 468.275 through ORS 468.350).



Sec. 937.783  Underground mining permit applications--minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who submits an application to conduct underground 
mining operations.



Sec. 937.784  Underground mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct underground mining.

[[Page 629]]



Sec. 937.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.



Sec. 937.795  Small operator assistance.

    Part 795 of this chapter, Small Operator Assistance, shall apply to 
any person making application for assistance under the small operator 
assistance program.



Sec. 937.800  General requirements for bonding of surface coal mining and 

reclamation operations.

    Part 800 of this chapter, General Requirements for Bonding of 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, shall apply to all surface coal mining and reclamation 
operations.



Sec. 937.815  Performance standards--coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person conducting coal exploration 
operations.



Sec. 937.816  Performance standards--surface mining activities.

    Part 816 of this chapter, Permanent Program Performance Standards--
Surface Mining Activities, shall apply to any person who conducts 
surface coal mining and reclamation operations.



Sec. 937.817  Performance standards--underground mining activities.

    Part 817 of this chapter, Permanent Program Performance Standards--
Underground Mining Activities, shall apply to any person who conducts 
underground mining operations.



Sec. 937.819  Special performance standards--auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 937.823  Special performance standards--operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmlands.



Sec. 937.824  Special performance standards--mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface coal mining operations constituting mountaintop removal mining.



Sec. 937.827  Special performance standards--coal processing plants and 

support facilities not located at or near the minesite or not within the 

permit area for a mine.

    Part 827 of this chapter, Special Permanent Program Performance 
Standards--Coal Processing plants and Support Facilities Not Located at 
or Near the Minesite or Not Within the Permit Area for a Mine, shall 
apply to any person who conducts surface coal mining and reclamation 
operations which include the operation of coal processing plants and 
support facilities not located at or near the minesite or not within the 
permit area for a mine.



Sec. 937.828  Special performance standards--in situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts in 
situ processing activities.



Sec. 937.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all exploration and surface coal mining and reclamation operations.
    (b) OSM will furnish a copy of each inspection report regarding 
inspections conducted pursuant to this subpart to the Oregon Department 
of Geology and Mineral Industries.

[[Page 630]]



Sec. 937.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall apply when 
enforcement action is required for violations on surface coal mining and 
reclamation operations.
    (b) OSM will furnish a copy of each enforcement action document and 
order to show cause issued pursuant to this subpart to the Oregon 
Department of Geology and Mineral Industries.



Sec. 937.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply when civil 
penalties are assessed for violations on surface mining and reclamation 
operations.



Sec. 937.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 937.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19462, May 29, 1986]



PART 938_PENNSYLVANIA--Table of Contents



Sec.
938.1 Scope.
938.10 State regulatory program approval.
938.11 Conditions of State regulatory program approval.
938.12 State statutory, regulatory, and proposed program amendment 
          provisions not approved.
938.13 State statutory and regulatory provisions set aside.
938.15 Approval of Pennsylvania regulatory program amendments.
938.16 Required regulatory program amendments.
938.20 Approval of Pennsylvania abandoned mine land reclamation plan.
938.25 Approval of Pennsylvania abandoned mine land reclamation plan 
          amendments.

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



Sec. 938.1  Scope.

    This part contains all rules applicable only within Pennsylvania 
that have been adopted under the Surface Mining Control and Reclamation 
Act of 1977.

[47 FR 33079, July 30, 1982]



Sec. 938.10  State regulatory program approval.

    The Pennsylvania state program as submitted on February 29, 1980, as 
amended on June 9, 1980, as resubmitted on January 25, 1982, and amended 
on April 9, 1982, and May 5, 1982, is conditionally approved, effective 
on July 31, 1982. Beginning on that date, the Department of 
Environmental Resources shall be deemed the regulatory authority in 
Pennsylvania for all surface coal mining and reclamation operations and 
for all exploration operations on non-Federal and non-Indian lands. Only 
surface coal mining and reclamation operations on non-Federal and non-
Indian lands shall be subject to the provisions of the Pennsylvania 
permanent regulatory program. Copies of the approved program, together 
with copies of the letter of the Department of Environmental Resources 
agreeing to the conditions in 30 CFR 938.11 are available at the 
following locations:
    (a) Pennsylvania Department of Environmental Resources, Market 
Street State Office Building, 400 Market Street, P.O. Box 2063, 
Harrisburg, Pennsylvania 17101-2063; Telephone: (717) 787-4686.
    (b) Office of Surface Mining Reclamation and Enforcement, Third 
Floor, suite 3C, Harrisburg Transportation Center, 4th and Market 
Streets, Harrisburg, Pennsylvania 17101; Telephone: (717) 782-4036.

[59 FR 17930, Apr. 15, 1994]



Sec. 938.11  Conditions of State regulatory program approval.

    The approval of the Pennsylvania state program is subject to the 
Commonwealth revising its program to correct the deficiences listed in 
this section. The program revisions may be made, as appropriate, to the 
statutes, the regulations, the program narrative, or the Attorney 
General's opinion. This

[[Page 631]]

section indicates, for the general guidance of the Commonwealth, the 
component of the program to which the Secretary recommends the change be 
made.
    (a)-(i) [Reserved]

[47 FR 33079, July 30, 1982, as amended at 48 FR 13417, Mar. 31, 1983; 
48 FR 45391, Oct. 5, 1983; 49 FR 20492, May 15, 1984; 49 FR 27319, July 
3, 1984; 51 FR 18321, May 19, 1986; 66 FR 57665, Nov. 16, 2001]



Sec. 938.12  State statutory, regulatory, and proposed program amendment 

provisions not approved.

    (a) We are not approving the following provisions or portions of 
provisions of the proposed program amendment that Pennsylvania submitted 
on July 29, 1998:
    (1) Section 5.1(b) (52 P.S. 1406.5a(b)) of BMSLCA is not approved to 
the extent noted in 30 CFR 938.13(a)(1).
    (2)-(4) [Reserved]
    (5) Section 5.2(g) (52 P.S. 1406.5b(g)) of BMSLCA is not approved to 
the extent noted in 30 CFR 938.13(a)(2).
    (6) Section 5.2(h) (52 P.S. 1406.5b(h)) of BMSLCA is not approved to 
the extent noted in 30 CFR 938.13(a)(3).
    (7)-(10) [Reserved]
    (11) Section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) of BMSLCA is not 
approved to the extent noted in 30 CFR 938.13(a)(4).
    (12) Section 5.4(c) (52 P.S. 1406.5d(c)) of BMSLCA is not approved 
to the extent noted in 30 CFR 938.13(a)(5).
    (13) Section 5.5(b) (52 P.S. 1406.5e(b)) of BMSLCA is not approved 
to the extent noted in 30 CFR 938.13(a)(6).
    (b) We are not approving the following portions of provisions of the 
proposed program amendment that Pennsylvania submitted on November 22, 
1999:
    (1) Sections 25 Pa. Code 86.124(f) and 25 Pa. Code 86.125(j) are not 
approved to the extent that these sections would allow Pennsylvania more 
time to complete a final written decision on a lands unsuitable for 
surface mining activities petition than is allowed by the provisions of 
the Federal regulations at 30 CFR 764.19(b).
    (c) We are not approving the following portions of provisions of the 
proposed program amendment that Pennsylvania submitted on December 18, 
1998:
    (1) 4.2(f)(4) of PASMCRA. We are not approving Subsection (4) to the 
extent that it would allow Phase 3 bond release.
    (2) 4.12(b) of PASMCRA. We are not approving Subsection (b) to the 
extent that it creates an alternative bonding system.
    (3) 25 Pa. Code 86.281(e). The last sentence which states, ``If the 
actual cost of reclamation by the Department exceeds the amount 
reserved, additional funds from the Remining Financial Assurance Fund 
will be used to complete reclamation'' is not approved.
    (4) 25 Pa. Code 87.1 and 88.1, Definition of ``de minimis cost 
increase.'' The definition is not approved as it applies to coal mining 
activities.
    (5) 25 Pa. Code 87.119 and 88.107. With regard to coal mining 
activities, we are not approving Subsection (a) to the extent that it 
would allow the replaced water supply to be of a lesser quantity and 
quality than the premining water supply or does not provide for 
temporary replacement of water supplies. We are not approving Subsection 
(a)(1)(v) to the extent it would pass on operating and maintenance costs 
of a replacement water supply in excess of the operating and maintenance 
costs of the premining water supply to the landowner or water supply 
user. We are not approving Section (a)(2) to the extent that an operator 
is not required to provide for all increased operating and maintenance 
costs of a restored or replaced water supply. Finally, we are not 
approving Subsection (a)(3) to the extent it would allow a waiver from 
the requirements for replacing a water supply outside the requirements 
of 30 CFR 701.5 regarding the definition of the term, ``replacement of 
water supply.''
    (6) 25 Pa. Code 87.119(g) and 88.107(g). These sections are not 
approved.
    (7) 25 Pa. Code 87.119(i) and 88.107(i). We are not approving 
Subsection (i) to the extent that it would allow Phase 3 bond release.
    (d) We are not approving the word ``augmented'' in the last sentence 
of subsection 86.151(d) that we found to be less effective on April 8, 
1993 (58 FR 18154).

[[Page 632]]

    (e) We are not approving the following amendments that Pennsylvania 
submitted on May 23, 2006:
    (1) At 25 Pa. Code 86.17(e), the sentence ``This fee shall not be 
required after (effective date of this rulemaking).''
    (2) At 25 Pa. Code 86.283(c), the proposed deletion of the entire 
subsection.

[66 FR 67063, Dec. 27, 2001, as amended at 68 FR 40154, July 7, 2003; 69 
FR 71551, 71559, Dec. 9, 2004; 70 FR 25491, May 13, 2005; 71 FR 54595, 
Sept. 18, 2006; 73 FR 38920, July 8, 2008]



Sec. 938.13  State statutory and regulatory provisions set aside.

    (a) The following provisions of Pennsylvania's Bituminous Mine 
Subsidence and Land Conservation Act (BMSLCA) are inconsistent with the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA) and are 
superseded to the extent noted effective December 9, 2004.
    (1) Section 5.1(b) (52 P.S. 1406.5a(b)) of BMSLCA is superseded to 
the extent that it would limit an operator's liability to restore or 
replace a water supply covered under section 720 of SMCRA.
    (2) Section 5.2(g) (52 P.S. 1406.5b(g)) of BMSLCA is superseded to 
the extent that it would limit an operator's liability to restore or 
replace a water supply covered under section 720 of SMCRA.
    (3) Section 5.2(h) (52 P.S. 1406.5b(h)) of BMSLCA is superseded to 
the extent it would preclude Pennsylvania from requiring the restoration 
or replacement of a water supply covered under section 720 of SMCRA.
    (4) The portion of section 5.4(a)(3) (52 P.S. 1406.5d(a)(3)) of 
BMSLCA that states, ``in place on the effective date of this section or 
on the date of first publication of the application for a Mine Activity 
Permit or a five-year renewal thereof for the operations in question and 
within the boundary of the entire mine as depicted in said 
application,'' is superseded to the extent it would limit an operator's 
liability for restoration of, or compensation for, subsidence damages to 
structures protected under section 720 of SMCRA that were in existence 
at the time of mining.
    (5) Section 5.4(c) (52 P.S. 1406.5d(c)) of BMSLCA is superseded to 
the extent it limits an operator's liability for repair of, or 
compensation for, subsidence damage to a structure covered under section 
720 of SMCRA.
    (6) The portion of Section 5.5(b) (52 P.S. 1406.5e(b)) of BMSLCA 
that states, ``All claims under this subsection shall be filed within 
two years of the date damage to the building occurred'' is superseded to 
the extent that it would limit an operator's liability for restoration 
of, or compensation for, subsidence damages to a structure covered under 
section 720 of SMCRA.
    (b) [Reserved]

[69 FR 71559, Dec. 9, 2004]



Sec. 938.15  Approval of Pennsylvania regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
April 26, 1983, May 12, 1983.........  October 5, 1983........  Bureau of Water Quality Management Underground
                                                                 Mine/Coal preparation Plant Permit Application
                                                                 Instructions; Bituminous Underground Mining
                                                                 Operation Permit/Manual; Coal Refuse Disposal
                                                                 Permit Application; Anthracite Coal Refuse
                                                                 Disposal Permit Application; Anthracite Bank
                                                                 Removal and Reclamation Permit Application;
                                                                 Anthracite Surface Mine Permit Application;
                                                                 Anthracite Underground Mining Operation Permit
                                                                 Application/Manual; Memorandum of Understanding
                                                                 between the Pennsylvania Department of
                                                                 Environmental Resources and the Pennsylvania
                                                                 Museum and Historical Commission.
August 1, 1983.......................  January 4, 1984........  25 PA Code 89.143(2)(iii)(A) through (D), (4),
                                                                 .144(b)(3), .145(a)(4), (b), (d), .146(e),
                                                                 .147(a).
January 17, 1984.....................  March 20, 1984.........  Pennsylvania policy statement: Citizen Complaint
                                                                 Procedures, Department of Environmental
                                                                 Resources Inspection and Enforcement Policy for
                                                                 Mining Operations, Civil Penalty Program.

[[Page 633]]

 
October 31, 1983.....................  May 15, 1984, July 3,    25 PA Code 86.5, .38(b), .112(b), .134(c), .211;
                                        1984.                    87.1, .112(c)(1), (2), (d), (e), .144, .138,
                                                                 .175; 89.86(a)(1), .161, .162, .163; 90.1,
                                                                 .112(c), (d), (e); addendum to the DER
                                                                 Inspection and Enforcement Policy for Mining
                                                                 Operations.
March 30, 1984.......................  November 27, 1984......  25 PA Code chapter 88, subchapters A through D,
                                                                 F.
March 2, 1984........................  April 4, 1985..........  Blaster training, examination and certification
                                                                 program, as contained in 25 PA Code chapter
                                                                 210, subchapter A.
April 19, 1985.......................  August 15, 1985........  Blaster certification program.
April 18, 1985.......................  November 4, 1985.......  25 PA Code chapter 89, subchapter F on
                                                                 subsidence control regulations.
September 5, 1985....................  February 19, 1986......  Act 158 of 1984; 25 PA Code chapter 87,
                                                                 subchapter F; chapter 88, subchapter G; letters
                                                                 from the Pennsylvania Deputy General Counsel
                                                                 and the First Deputy Attorney General to
                                                                 Rebecca W. Hanmer, Director, Office of Water
                                                                 Enforcement Permits, U.S. EPA, dated July 8,
                                                                 1985, and August 19, 1985, respectively.
November 2, 1984.....................  May 19, 1986...........  25 PA Code 86.37(a)(13), .171(e)(12),
                                                                 .172(d)(2)(iii); 88.1--definitions for
                                                                 ``cropland,'' ``historically used for
                                                                 cropland,'' ``prime farmland,'' and ``soil
                                                                 survey'', .24(b)(4), .30(a), (1), .31(a)(7),
                                                                 .32, .61, .129, .134(a), (e), .135(c)(1),
                                                                 (f)(2), (h), .136(a), (c), .137(18), (19),
                                                                 .217, .330, .381(b)(2), (c)(6), (8), (9),
                                                                 .491(i)(1), (13), (22), (23), (j), (k),
                                                                 .492(m), .493(8).
September 30, 1985...................  September 8, 1986......  Civil Penalty Program: Sec. Sec.  I, II.2,
                                                                 II.4, II.8; Inspection and Enforcement Policy:
                                                                 Sec. Sec.  II.B.2.a.(4), (5), E, J.
April 18, 1985.......................  June 18, 1987..........  25 PA Code 89.143(b).
January 22, 1987.....................  July 14, 1987..........  Sec.  4.2(F)(II): right-of-entry requirements.
April 14, 1987.......................  October 27, 1988.......  Sec. Sec.  II.J of the Inspection and
                                                                 Enforcement Policy, II.2 of the Civil Penalty
                                                                 Program, both concern alternative enforcement
                                                                 actions for failure to abate violations.
December 5, 1988.....................  July 14, 1989..........  25 PA Code 86.1, .12; 88.1, .381; 89.5.
August 17, 1988......................  August 18, 1989........  Civil Penalty Program, Sec.  II (Assessment),
                                                                 paragraph 4; Program Guidance Manual, Sec.
                                                                 1:3:6 (Civil Penalty Assessments) part 1--Coal,
                                                                 paragraph 4.
August 21, 1986......................  November 3, 1989.......  PA Policy Statement entitled Reclamation in Lieu
                                                                 of Cash Payment for Civil Penalties found in
                                                                 Department of Environmental Resources Program
                                                                 Guidance Manual at Sec.  1:3:9.
December 22, 1989....................  May 31, 1991...........  25 PA Code 86.17(e), .83(a)(2), .112(b)(1),
                                                                 .158(b)(1), (2), (3), .174(d)(1), .175(1), (2),
                                                                 (3), .182(d); 87.73, .112(b)(1), (f), .125(a),
                                                                 .127(e)(2), (h), .131(n), .135(a), .138;
                                                                 88.24(b)(4), .492(c)(4); 89.34(a)(1), (2)(ii),
                                                                 .59(a)(1), (2), (3), .71(d), .82, .101(a), (d),
                                                                 .172(b); 90.112(b)(1), (d), (f), .150.
September 24, 1986...................  October 24, 1991.......  25 PA Code 86.182, .186 through .190; PA SMCRA
                                                                 Sec. Sec.  3.1, 4(a), (b), 18(c)(i), 18.8.
May 27, 1992.........................  October 28, 1992.......  25 PA Code 86.83, .94.
June 2, 1992.........................  November 16, 1992......  25 PA Code 86.1; 88.1, .381; 89.5.
December 18, 1991....................  December 30, 1992,       25 PA Code 86.1, .36(c), .37(a), (c), .41 .43,
                                        January 14, 1993,        .44, .52(c)(4), .53, .55(d), .62, .63, .101,
                                        April 8, 1993.           .102, .129, .132, .133, .134(3)(ii)(C), (12),
                                                                 .136, .151(a), (d), (h), .163, .165, .193(3),
                                                                 (f), .194, .195, .202, .212; 87.1, .11, .14,
                                                                 .21, .42(2), .54(a)(9), (22), .77, .112(c),
                                                                 .151(d), .155, .160, .166; 88.1, .22(2),
                                                                 .31(a)(9), (22), .56, .115, .116, .381(c)(9),
                                                                 .491(a)(1)(ii), (i)(7), .492(f); 89.5, .26,
                                                                 .38(a), (b), (c), .86, .90, .111(c); 90.1,
                                                                 .11(a)(3), .21(a)(9), (24), .40, .112(c), .134,
                                                                 .140, .155(d), .159.
February 18, 1993....................  July 6, 1993...........  25 PA Code 86.17.
March 9, 1993........................  December 6, 1993.......  PA SMCRA Sec.  4(d) concerning financial
                                                                 instruments for performance bonds.
May 11, 1993.........................  July 20, 1994..........  25 PA Code 86.142, .159, .166.
October 24, 1994.....................  April 3, 1995..........  25 PA Code 86.81 through .89, .91 through .95.
December 19, 1996....................  May 30, 1997...........  25 PA Code, Chapter 86, Subchapter D: 86.101;
                                                                 86.102; 86.103; 86.121; 86.122; 86.123; 86.124;
                                                                 86.125; 86.126; 86.127; 86.128; 86.129; 86.130.
January 23, 1995.....................  November 7, 1997.......  Chapters 86 through 90.
September 13, 1995...................  April 22, 1998.........  Pennsylvania law Act 1994-114 concerning the
                                                                 special authorization for refuse disposal in
                                                                 areas previously affected by mining which
                                                                 contain pollutional discharges: Title and 1; 3;
                                                                 3.2(b); 4.1; 6.1(h)(5), (i); 6.2; 6.3; 15.1.
October 8, 1998......................  March 26, 1999 and June  52 P.S. 1396.3, 1396.4h.
                                        8, 1999.
August 17, 1998......................  February 2, 2000.......  Letter from Pennsylvania to OSM dated August 17,
                                                                 1998 (PA-837.80), except a decision on the
                                                                 required amendment at 30 CFR 938.16(www) is
                                                                 deferred.
November 2, 1999.....................  November 3, 2000.......  25 Pa. Code 86.1, 86.124, 86.152, 86.156,
                                                                 86.160, 86.171, 86.182, 86.193, 86.194, 86.195,
                                                                 86.201, and 86.202.
November 8, 1999.....................  March 23, 2000.........  25 PA Code Sec. Sec.  86.80, 86.81, 86.82,
                                                                 86.83, 86.84, 86.85, 86.86 (deleted), 86.87,
                                                                 86.91 (deleted), 86.92, 86.94, 86.95 (deleted).
                                                                 Note: The incorporation of the reference to
                                                                 Sec.  89.34 at 86.81(a)(2)(iii)(C) and
                                                                 86.81(a)(2)(iv)(C) is approved to the extent
                                                                 that Pennsylvania implements this provision
                                                                 consistent with the SOAP funding provisions of
                                                                 SMCRA section 507(c)(1)(A) and the implementing
                                                                 regulations at 30 CFR 795.9(b)(1). The
                                                                 incorporation of this reference into
                                                                 subsections 86.81(a)(2)(iii)(C) and
                                                                 86.81(a)(2)(iv)(C) is not approved to the
                                                                 extent that the proposed subsections would
                                                                 authorized the expenditure of Pennsylvania SOAP
                                                                 funds under the subsections listed above for
                                                                 services that are not fundable under section
                                                                 507(c)(1)(A) of SMCRA or 30 CFR 795.9(b)(1).

[[Page 634]]

 
                                                                25 PA Code 86.81(a)(2)(iii) is approved to the
                                                                 extent that the SOAP funds are not used to fund
                                                                 the activities required under 25 PA Code Sec.
                                                                 Sec.  87.41 and 87.42(1) or Sec. Sec.  88.21
                                                                 and 88.22(1).
                                                                The reference of Sec. Sec.  87.77, 88.56 and
                                                                 89.38 (regarding archaeological and historic
                                                                 information) into subsections
                                                                 86.81(a)(2)(iv)(A), (B) and (C) is approved to
                                                                 the extent that Pennsylvania implements these
                                                                 provisions consistent with the SOAP funding
                                                                 provisions of SMCRA section 507(c)(1)(D) and
                                                                 the implementing regulations at 30 CFR
                                                                 795.9(b)(4). The incorporation of these
                                                                 references (regarding public parks) into
                                                                 subsections 86.81(a)(2)(iv)(A), (B) and (C) is
                                                                 not approved to the extent that the proposed
                                                                 subsections would authorized the expenditure of
                                                                 Pennsylvania SOAP funds under the subsections
                                                                 listed above for services that are not fundable
                                                                 under section 507(c)(1)(D) of SMCRA or 30 CFR
                                                                 795.9(b)(4).
November 30, 1999....................  June 26, 2000..........  25 Pa. Code 86.2, 86.37, 86.40, 86.64, 86.70,
                                                                 86.132-86.134, 86.174, 87.1, 87.77, 87.93,
                                                                 87.97, 87.101, 87.106, 87.126, 87.127, 87.138,
                                                                 87.144, 87.146, 87.159, 87.160, 87.166, 87.173,
                                                                 87.174, 87.176, 87.209, 88.1, 88.56, 88.83,
                                                                 88.91, 88.96, 88.118, 88.133, 88.138, 88.144,
                                                                 88.191, 88.221, 88.231, 88.237, 88.283, 88.291,
                                                                 88.296, 88.334, 88.335, 88.341, 88.492, 88.509,
                                                                 89.38, 89.65, 89.67, 89.82, 89.87, 89.88,
                                                                 89.90, 90.1, 90.40, 90.93, 90.97, 90.101,
                                                                 90.106, 90.134, 90.140, 90.147, 90.150, 90.166.
January 3, 2001......................  August 15, 2001........  25 Pa. Code 86.174.
January 3, 2001......................  November 16, 2001......  Addition of Chapter 77, Section 7708 to 2001
                                                                 Title 27 of the Pennsylvania Consolidated
                                                                 Statutes; repeal of the fifth sentence of
                                                                 section 4(b) and section 4.2(f)(5) of the
                                                                 Surface Mining Conservation and Reclamation Act
                                                                 of May 31, 1945 (P.L. 1198, No. 418); repeal of
                                                                 the last sentence of section 5(g) of the
                                                                 Bituminous Mine Subsidence and Land
                                                                 Conservation Act of April 27, 1966 (1st Sp.
                                                                 Sess., P.L. 31, No. 1); repeal of the last
                                                                 sentence of section 5(i) of the Coal Refuse
                                                                 Disposal Control Act of September 24, 1968
                                                                 (P.L. 1040, No. 318).
July 29, 1998........................  December 27, 2001......  Bituminous Mine Subsidence and Land 2001
                                                                 Conservation Act: Repeal of Section 4 (52 P.S.
                                                                 1406.4); 5(b)(partial approval); 5.1(a)(1) (52
                                                                 P.S. 1406.5a(a)(1) (conditional approval);
                                                                 5.1(a)(2) and (3) (52 P.S. 1406.5a(a)(2) and
                                                                 (3)); 5.2(a)(1), (2), and (3) (52 P.S.
                                                                 1406.5b(a)(1), (2), and (3)); 5.2(b)(1) (52
                                                                 P.S. 1406.5b(b)(1)); 5.2(c) (52 P.S.
                                                                 1406.5b(c)); 5.2(e)(1) and (3) (52 P.S.
                                                                 1406.5b(e)(1) and (3)); 5.2(f) (52 P.S. 1406.5b
                                                                 (f); 5.2(j) (52 P.S. 1406.5b(j)); 5.2(k) (52
                                                                 P.S. 1406.5b(k)); 5.4(a) (52 P.S.
                                                                 1406.5d(a))(partial approval); 5.4(a)(1), (2)
                                                                 and (4) (52 P.S. 1406.5d(a)(1), (2) and (4));
                                                                 5.4(b) (52 P.S. 1406.5d(b)); 5.5(a) (52 P.S.
                                                                 1406.5e(a))(partial approval); 5.5 (d), (e),
                                                                 and (g) (52 P.S. 1406.5e(d), (e) and (g));
                                                                 5.6(a) and (b) (52 P.S. 1406.5f(a) and (b)); 6
                                                                 (52 P.S. 1406.6))(partial approval); 9.1(a),
                                                                 (b), (c), and (d) (52 P.S. 1406.9a(a), (b),
                                                                 (c), and (d); Repeal of Section 15 (52 P.S.
                                                                 1406.15); 17.1 (52 P.S. 1406.17a); 18.1 (52
                                                                 P.S. 1406.18a)
                                                                25 Pa. Code Section: 89.5, the definitions of
                                                                 the following terms: ``dwelling,''
                                                                 ``irreparable damage,'' ``material damage,''
                                                                 ``noncommercial building,'' ``public buildings
                                                                 and facilities,'' ``public water supply
                                                                 system,'' ``rebuttable presumption area,''
                                                                 ``underground mining,'' ``underground mining
                                                                 operations,'' and ``water supply;'' 89.33;
                                                                 89.34; 89.35; 89.36; 89.141(a); 89.141(d)(2),
                                                                 (4), (5), (7), (8), (10) and (11); 89.141(d),
                                                                 (d)(3), (6), and (9)(partial approval);
                                                                 deletion of 89.142; 89.142a(a) (partial
                                                                 approval) 89.142a(a)(1), (2), (3) and (4);
                                                                 89.142a(b); 89.142a(c)(1) and (2)(i) `` (v);
                                                                 89.142a(c)(3) (partial approval); 89.142a(d)
                                                                 (partial approval); 89.142a(e); 89.142a(f)(1)
                                                                 (partial approval); 89.142a(f)(1)(i), (ii),
                                                                 (iv), and (v); 89.142a(f)(2)(i) (partial
                                                                 approval); 89.142a(g)(1) (partial approval);
                                                                 89.142a(g)(2), and (3); 89.142a(h) (1) and (2)
                                                                 (partial approval); 89.142a(i)(1) (partial
                                                                 approval); 89.142a)(i)(2), (j), (k), and (l);
                                                                 deletion of 89.143; 89.143a(a) (partial
                                                                 approval); 89.143a(b); 89.143a(d)(1) and (2)
                                                                 (partial approval);deletion of 89.144;
                                                                 89.144a(a)(2), and (3); deletion of 89.145;
                                                                 89.145a(a)(1)(i)-(vi); 89.145a(a)(2) and (3);
                                                                 89.145a(b)(partial approval); 89.145a(c);
                                                                 89.145a(d); 89.145a(e)(1) and (2) (partial
                                                                 approval); 89.145a(f)(1)(i)-(iv);
                                                                 89.145a(f)(2); 89.145a(f)(3)(i) and
                                                                 (ii)(partial approval); 89.145a(f)(3)(iii);
                                                                 89.145a(f)(4); 89.146a(a) and (b); 89.146a(c)
                                                                 (partial approval); 89.152(a)(1) and (3);
                                                                 89.152(b); 89.153 (a), (b), and (c); 89.154(a)
                                                                 through (d); 89.155(a), 89.155(b)(1) and (2)
                                                                 (partial approval); 89.155(b)(3) and (4);
                                                                 89.155(c) (partial approval).
February 25, 2002....................  November 6, 2002.......  25 Pa. Code 86.37, 87.160, 88.138, 88.231,
                                                                 88.335, 90.134, 87.160.
November 22, 1999....................  July 7, 2003...........  25 Pa. Code 86.1 definition of ``valid existing
                                                                 rights;'' 86.101 definitions of ``fragile
                                                                 lands,'' ``historic lands,'' ``public
                                                                 building,'' ``public park,'' ``renewable
                                                                 resource lands,'' ``significant recreational
                                                                 value, timber, economic or other values
                                                                 incompatible with surface mining operations,''
                                                                 and ``surface mining operations;'' 86.102(1),
                                                                 (3) through (5), and (7) through (12);
                                                                 86.103(c), (d), and (e); 86.121, 86.123(c) and
                                                                 (c)(5); 86.124(a), (c), (d) and (f); 86.125;
                                                                 86.126; 86.127; 86.128; 86.129; and 86.130(b).

[[Page 635]]

 
February 25, 2002....................  August 15, 2003........  25 Pa. Code 210.11; 210.13--210.19; 211.101-
                                                                 211.103; 211.111-211.115; 211.121-211.125;
                                                                 211.131-211.133; 211.141; 211.151-211.162;
                                                                 211.171-211.173; 211.181-211.182
December 20, 2001....................  October 2, 2003........  25 Pa. Code 88.281, 88.310, 88.332, 89.59, 90.1,
                                                                 90.5, 90.12, 90.13, 90.34, 90.45, 90.49, 90.50,
                                                                 90.101, 90.116a, 90.122, 90.167, 90.201-207,
                                                                 90.301-309, and 90.401.
August 27, 2003......................  December 9, 2004.......  25 Pa. Code 86.1 modification of definition of
                                                                 underground mining activities, 86.151(b)(2),
                                                                 86.152(a), 89.5, Addition of definitions of
                                                                 EPAct structures and EPAct water supplies;
                                                                 removal of definition of permanently affixed
                                                                 appurtenant structures; modification of
                                                                 definitions of underground mining activities
                                                                 and underground mining operations, 89.141(d),
                                                                 89.142a(a), (c) through (i), 89.143a(a), (c)
                                                                 and (d), 89.144a(a) and (b), 89.145a(a), (b),
                                                                 (e) and (f), 89.146a(c)(2), and 89.152(a) and
                                                                 (b).
                                                                In BMSLCA, Sections 5.2(b)(2), 5.2(d),
                                                                 5.2(e)(2), 5.2(i), 5.3(a), 5.3(b), 5.3(c),
                                                                 5.5(c), 5.5(f), 5.6(c), and 5.6(d).
December 18, 1998....................  May 13, 2005...........  In PASMCRA, Section 3 Definition of ``Total
                                                                 Project Costs;'' Sections 3.1; 4(a), (d),
                                                                 (d.2), (g), and (h); 4.2(f) (partial approval);
                                                                 4.2(i); 4.6(i) and (j); 4.7; 4.10; 4.11; 4.12
                                                                 (partial approval); 4.13; 18(a), (a.1), (a.2),
                                                                 and (a.3); 18(f), (g)(4) and (5); 18.7; 18.9;
                                                                 18.10.
                                                                25 Pa. Code 86.142 Definitions of ``Annuity,''
                                                                 ``Trustee,'' and ``Trust Fund;'' 25 Pa. Code
                                                                 86.151(b), (c), and (j); 86.152(a) and (b);
                                                                 86.156(b); 86.157(3), (4), (5), (6), (7), and
                                                                 (8); 86.158(c)(6), (e), (f), and (g);
                                                                 86.161(3); 86.168; 86.171(a), (b)(6) and (7),
                                                                 (f)(4), (g), and (h); 86.174(a) and (d);
                                                                 86.175(a) and (b)(3); 86.182(a)(3) and (4),
                                                                 (d), (e), (f), (g); 86.195(b), 86.251-253;
                                                                 86.261-86.270; 86.281(a)-(d); 86.281(e)
                                                                 (partial approval); 86.282-284; 86.291-295;
                                                                 86.351-359.
                                                                25 Pa. Code 87.1 Definitions of ``Water
                                                                 Supply,'' ``Water Supply Survey''; deletion of
                                                                 87.11-21; 87.119 (partial approval); 87.147(b).
                                                                25 Pa. Code 88.1 Definitions of ``Water
                                                                 Supply,'' ``Water Supply Survey''; 88.107
                                                                 (partial approval); 88.121(b); 88.209(b).
May 23, 2006.........................  April 17, 2007.........  25 Pa. Code: 86.187(a)(1), (b), (c);
                                                                 86.188(b)(5) [deleted]; 86.188(c)(3) [deleted];
                                                                 86.189(c)(2) through (c)(4) [deleted reference
                                                                 to (c)(5)], 86.189 (c)(5) [deleted]; 86.190 (a)
                                                                 [the words ``but are not limited to'' are
                                                                 deleted]; 86.190(a)(3) [deleted].
December 18, 2006....................  October 4, 2007........  25 Pa. Code 86.6 [add].
June 8, 2006.........................  December 1, 2008.......  25 Pa. Code 210.11, 87.1, 88.1, and 89.5 added
                                                                 definition for mine opening blasting; 87.124(b)
                                                                 correction of reference error; 87.126(b)(2)(ii)
                                                                 phrase deletion; 87.127(b), 87.127(e),
                                                                 87.127(e)(1) ,87.127(f)(1);
                                                                 87.129(4);88.135(a), 88.135(b), 88.135(f)(1),
                                                                 88.135(h) , 88.135(i); 88.493(7)(i); 89.62
                                                                 (adding new language); 87.127(l) and 88.135(l)
                                                                 (deleted in their entirety).
August 1, 2008.......................  August 10, 2010........  52 P.S. 1396.4(d.2); 25 Pa. Code 86.1, 86.17(e),
                                                                 86.187(a); The Conversion Assistance Program;
                                                                 Trust Funds as an Alternative Bonding System
                                                                 (ABS); Demonstration of Sufficient Funding for
                                                                 Outstanding Land Reclamation at Primacy ABS
                                                                 Forfeiture Sites; and, Demonstration of
                                                                 Sufficient Funding for Construction of All
                                                                 Necessary Discharge Treatment Facilities at the
                                                                 ABS Forfeiture Sites.
----------------------------------------------------------------------------------------------------------------


[62 FR 9953, Mar. 5, 1997]

    Editorial Note: For Federal Register citations affecting Sec. 
938.15, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 938.16  Required regulatory program amendments.

    Pursuant to 30 CFR 732.17, Pennsylvania is required to submit the 
following proposed program amendments by the dates specified.
    (a)-(e) [Reserved]
    (f) By August 24, 1987, Pennsylvania shall amend its regulations at 
88.129(f)(1) and (2) and the corresponding provisions under Chapter 88, 
Subchapters C, D, and F (88.217, 88.330 and 88.491) or otherwise amend 
its program to be consistent with section 510(d) of SMCRA by requiring 
that the restoration of prime farmland soil productivity shall be 
determined on the basis of measurement of crop yields.
    (g) [Reserved]
    (h) No later than October 12, 2010, Pennsylvania must submit either 
a proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to ensure that its program 
provides suitable, enforceable funding mechanisms, that are sufficient 
to guarantee

[[Page 636]]

coverage of the full cost of land reclamation at all sites originally 
permitted and bonded under the ABS.
    (i)-(l) [Reserved]
    (m) By November 1, 1991, Pennsylvania shall amend its rules at Sec. 
86.158(b)(1) or otherwise amend its program to be no less effective than 
30 CFR 800.21(a)(2) by requiring that the value of all government 
securities pledged as collateral bond shall be determined using the 
current market value.
    (n) By November 1, 1991, Pennsylvania shall amend Sec. 86.158(b)(2) 
or otherwise amend its program to be no less effective than 30 CFR 
800.21(e)(1) by requiring that the provisions related to valuation of 
collateral bonds be amended to be subject to a margin, which is the 
ratio of the bond value to the market value, and which accounts for 
legal and liquidation fees, as well as value depreciation, 
marketability, and fluctuations which might affect the net cash 
available to the regulatory authority in case of forfeiture.
    (o) By November 1, 1991, Pennsylvania shall amend Sec. 86.158(b)(3) 
or otherwise amend its program to be no less effective than 30 CFR 
800.21(e)(2) to ensure that the bond value of all collateral bonds be 
evaluated during the permit renewal process to ensure that the 
collateral bond is sufficient to satisfy the bond amount requirements.
    (p)-(v) [Reserved]
    (w) By November 1, 1991, Pennsylvania shall amend Sec. Sec. 
87.125(a), or otherwise amend its program to be no less stringent than 
section 515(b)(15)(E) of SMCRA to provide the opportunity to request a 
preblasting survey to every resident or owner of a man-made structure or 
dwelling within one-half mile of any part of the permit area.
    (x)-(qq) [Reserved]
    (rr) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to section 86.36(c) to require permit denial for unabated violations of 
any Federal or State program under SMCRA, without the three-year 
limitation.
    (ss) [Reserved]
    (tt) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to section 86.37(a)(10) to require that all violations of the Federal 
SMCRA and all programs approved under SMCRA be considered in determining 
whether there is a demonstrated pattern of willful violations.
    (uu) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to section 86.37(a) to require that the criteria upon which the 
regulatory authority bases its decision to approve or deny a permit 
application are based on all information available to the regulatory 
authority.
    (vv) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to section 86.37(a) to include language that would prohibit permit 
approval if the applicant or anyone linked to the applicant through the 
definition of ``owned or controlled'' or ``owns or controls'' has 
forfeited a bond and the violation upon which the forfeiture was based 
remains unabated.
    (ww) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to sections 86.37(a)(9) and (a)(16) to require denial of a permit if it 
finds that those linked to the applicant through the definition of 
``owned or controlled'' or ``owns or controls'' are delinquent in 
payment of abandoned mine reclamation fees or delinquent in the payment 
of State and Federal final civil penalty assessments.
    (xx) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to section 86.37(c), to require that the regulatory authority's 
reconsideration of its decision to approve the permit include a review 
of information, updated for the period from permit approval to permit 
issuance, pertaining to the payment of abandoned mine reclamation fees 
and civil penalty fees and the status of unabated violations upon which 
a bond forfeiture was based.
    (yy) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to section 86.43, to require the regulatory authority to review the 
circumstances under which a permit was issued whenever it has reason to 
believe that the permit may have been improvidently issued.
    (zz) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to section 86.62(b)(2)(ii) to correct the cross-reference to 86.63 with 
a reference to section 86.212(c).
    (aaa) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to

[[Page 637]]

sections 86.62(c) and 87.14(3) to include the requirement that the 
application include the address for each permit held by a related entity 
or company, and identification of the regulatory authority for each such 
permit.
    (bbb) By May 1, 1993, Pennsylvania shall submit a proposed amendment 
to section 86.63(a)(3) to require that all applications for surface 
mining permits include the specific information required by section 
86.63(a)(3)(i)-(viii) for all cessation orders received, by the 
applicant and anyone linked to the applicant through ownership and 
control, prior to the date of the application.
    (ccc) By October 5, 1993, Pennsylvania shall submit a 
proposedamendment to Sec. 86.133(f) to require that exploration on 
areas designated as unsuitable for mining shall be subject to permitting 
requirements no less effective than the Federal regulations at 30 CFR 
772.12.
    (ddd)-(ggg) [Reserved]
    (hhh) By October 5, 1993, Pennsylvania shall submit a proposed 
amendment to Sec. Sec. 87.155(b)(5), 89.86(e)(2)(iii)(B) and 
90.159(b)(3) to require that at least 80 percent of the trees and shrubs 
to be used in determining the success of stocking and adequacy of 
planting, at the time of bond release, have been in place for 60 percent 
of the applicable minimum period of responsibility.
    (iii) By October 5, 1993, Pennsylvania shall submit a proposed 
amendment to Sec. Sec. 87.112(c) and 89.111(c) to require a seismic 
safety factor of at least 1.2 for all impoundments that meet the 
criteria of 30 CFR 77.216(a) or are located where failure could cause 
loss of life or serious property damage.
    (jjj) By October 5, 1993, Pennsylvania shall submit a proposed 
amendment to Sec. 90.112(c)(2) to require that all impounding 
structures that meet the criteria of 30 CFR 77.216(a) and are either 
constructed of coal mine waste or intended to impound coal mine waste 
have sufficient spillway capacity and/or storage capacity to safely pass 
or control the runoff from the 6-hour PMP or greater precipitation 
event.
    (kkk) and (lll) [Reserved]
    (mmm) By October 5, 1993, Pennsylvania shall submit a proposed 
amendment to Sec. 88.1 to require that the definition of haul road 
include all roads (including public roads) that are used as an integral 
part of the coal mining activity and to clarify that the area of the 
road includes the entire area within the right-of-way, including 
roadbeds, shoulders, parking and side areas, approaches, structures, and 
ditches.
    (nnn) By September 19, 1994, Pennsylvania shall submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption, to revise section 86.159(l)(2) 
to require two officer signatures for each corporate indemnitor, an 
affidavit from the corporation(s) certifying that entering into the 
indemnity agreement is valid under all applicable Federal and State 
laws, and documents that evidence the authority of the signatories to 
bind the corporation and an authorization by the parent corporation to 
enter into the indemnity agreement.
    (ooo) [Reserved]
    (ppp) By January 6, 1998, Pennsylvania shall submit a proposed 
amendment to section 86.5(m), or otherwise amend its program, to provide 
for notification of the operator and any intervenors of a decision not 
to revoke an exemption.
    (qqq) [Reserved]
    (rrr) By January 6, 1998, Pennsylvania shall submit a proposed 
amendment to subsections 87.108(c), 89.24(c), and 90.108(c), or 
otherwise amend its program, to require, without exception, that 
sedimentation ponds cannot be removed sooner than two years after the 
last augmented seeding.
    (sss) By January 6, 1998, Pennsylvania shall submit proposed 
amendments to subsections 88.105(c), 88.201(c) and 88.305(c), or 
otherwise amend its program, to require additional hydrologic testing 
whenever the PHC determination indicates that adverse impacts may occur 
to the hydrologic balance, or that acid-forming or toxic-forming 
material is present that may result in the contamination of surface or 
ground water supplies.
    (ttt) By January 6, 1998, Pennsylvania shall submit a proposed 
amendment to sections 88.321 and 90.133, or otherwise amend its program, 
to require that no noncoal waste be deposited in a coal refuse pile or 
impounding structure.

[[Page 638]]

    (uuu) By January 6, 1998, Pennsylvania shall submit a proposed 
amendment to provide counterparts to the Federal regulations at 30 CFR 
702.15 (d), (e), (f) and 702.17 (c)(2) and (c)(3) to require that 
authorized representatives have the right to enter operations conducting 
incidental coal extraction and that administrative reviews of the 
State's determinations be conducted.

[50 FR 32849, Aug. 15, 1985 and 50 FR 45823, Nov. 4, 1985]

    Editorial Note: For Federal Register citations affecting Sec. 
938.16, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 938.20  Approval of Pennsylvania abandoned mine land reclamation plan.

    The Pennsylvania Abandoned Mine Land Reclamation Plan as submitted 
on November 3, 1980, is approved. Copies of the approved Plan are 
available at the following locations:
    (a) Pennsylvania Department of Environmental Resources, Bureau of 
Abandoned Mine Reclamation, Market Street State Office Building, 400 
Market Street, P.O. Box 2063, Harrisburg, Pennsylvania 17105-2063.
    (b) Office of Surface Mining Reclamation and Enforcement, Harrisburg 
Field Office, Harrisburg Transportation Center, Third Floor, suite 3C, 
Fourth and Market Streets, Harrisburg, Pennsylvania 17101.

[59 FR 17930, Apr. 15, 1994]



Sec. 938.25  Approval of Pennsylvania abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
April 17, 1992.......................  October 30, 1992.......  Part D of Plan--Initiative, part E of Plan--
                                                                 Modifications.
November 21, 1997....................  March 26, 1999.........  Part F--Government Financed Construction
                                                                 Contracts.
----------------------------------------------------------------------------------------------------------------


[62 FR 9953, Mar. 5, 1997, as amended at 64 FR 14619, Mar. 26, 1999]



PART 939_RHODE ISLAND--Table of Contents



Sec.
939.700 Rhode Island Federal program.
939.701 General.
939.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
939.707 Exemption for coal extraction incident to Government-financed 
          highway or other construction.
939.761 Areas designated unsuitable for surface coal mining by Act of 
          Congress.
939.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
939.764 Process for designating areas unsuitable for surface coal mining 
          operations.
939.772 Requirements for coal exploration.
939.773 Requirements for permits and permit processing.
939.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
939.775 Administrative and judicial review of decisions.
939.777 General content requirements for permit applications.
939.778 Permit applications--minimum requirements for legal, financial, 
          compliance, and related information.
939.779 Surface mining permit applications--minimum requirements for 
          information on environmental resources.
939.780 Surface mining permit applications--minimum requirements for 
          reclamation and operations plan.
939.783 Underground mining permit applications--minimum requirements for 
          information on environmental resources.
939.784 Underground mining permit applications--minimum requirements for 
          reclamation and operation plan.
939.785 Requirements for permits for special categories of mining.
939.795 Small operator assistance.
939.800 General requirements for bonding of surface coal mining and 
          reclamation operations.
939.815 Performance standards--coal exploration.

[[Page 639]]

939.816 Performance standards--surface mining activities.
939.817 Performance standards--underground mining activities.
939.819 Special performance standards--auger mining.
939.823 Special performance standards--operations on prime farmland.
939.824 Special performance standards--mountaintop removal.
939.827 Special performance standards--coal processing plants and 
          support facilities not located at or near the minesite or not 
          within the permit area for a mine.
939.828 Special performance standards--in situ processing.
939.842 Federal inspections.
939.843 Federal enforcement.
939.845 Civil penalties.
939.846 Individual civil penalties.
939.955 Certification of blasters.

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

    Source: 48 FR 40995, Sept. 12, 1983, unless otherwise noted.



Sec. 939.700  Rhode Island Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining and reclamation operations in Rhode Island which have been 
adopted under the Surface Mining Control and Reclamation Act of 1977.
    (b) The rules in this part cross-reference pertinent parts of the 
permanent program regulations in this chapter. The full text of a rule 
is in the permanent program rule cited under the relevant section of the 
Rhode Island Federal program.
    (c) The rules in this part apply to all surface coal mining and 
reclamation operations in Rhode Island conducted on non-Federal and non-
Indian lands. The rules in subchapter D of this chapter apply to 
operations on Federal lands in Rhode Island.
    (d) The information collection requirements contained in this part 
do not require approval by the Office of Management and Budget under 44 
U.S.C. 3507 because there are fewer than ten respondents annually.
    (e) The following provisions of Rhode Island laws provide, where 
applicable, for more stringent environmental control and regulation of 
surface coal mining and reclamation operations than do the provisions of 
the Act and the regulations in this chapter. Therefore, pursuant to 
Section 505(b) of the Act, they shall not be construed to be 
inconsistent with the Act:
    (1) R.I. General Laws Sections 23-19.1-1 to 23-19.1-22, regulating 
treatment, disposal, and transportation of hazardous wastes within the 
State of Rhode Island.
    (2) R.I. General Laws Sections 46-12-1 to 46-12-37, controlling the 
pollution of any of the State's waterways.
    (f) There are no Rhode Island laws that generally interfere with the 
achievement of the purposes and requirements of the Act and which must 
be superseded and preempted pursuant to Section 504(g). Some Rhode 
Island laws may in an individual situation interfere with the 
achievement of the purposes and requirements of the Act and may be 
preempted and superseded with respect to the performance standards of 
Sec. Sec. 939.815 through 939.828 as they affect a particular coal 
exploration or surface mining operation by publication of a notice to 
that effect in the Federal Register.



Sec. 939.701  General.

    Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and part 701 
of this chapter shall apply to surface coal mining and reclamation 
operations in Rhode Island.



Sec. 939.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of other minerals 
for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]



Sec. 939.707  Exemption for coal extraction incident to Government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.

[[Page 640]]



Sec. 939.761  Areas designated unsuitable for surface coal mining by Act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply to surface coal mining and reclamation operations.



Sec. 939.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface coal mining 
and reclamation operations.



Sec. 939.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to 
petitioning, initial processing, hearing requirements, decisions, data 
base and inventory systems, public information, and regulatory 
responsibilities shall become applicable in Rhode Island on May 28, 
1983.



Sec. 939.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.
    (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 
section, any person who intends to conduct coal exploration shall, prior 
to conducting the exploration, file with the regulatory authority a 
written notice of intention to explore including:
    (1) The name, address, and telephone number of the person seeking to 
explore;
    (2) The name, address, and telephone number of the representative 
who will be present at and responsible for conducting the exploration 
activities;
    (3) A precise description and map, at a scale of 1:24,000 or larger, 
of the exploration area;
    (4) A statement of the period of intended exploration;
    (5) If the surface is owned by a person other than the person who 
intends to explore, a description of the basis upon which the person who 
will explore claims the right to enter such area for the purpose of 
conducting exploration and reclamation; and
    (6) A description of the practices proposed to be followed to 
protect the environment from adverse impacts as a result of the 
exploration activities.
    (d) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
that more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.

[52 FR 13813, Apr. 24, 1987]



Sec. 939.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptablity for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
application of the findings;
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and negotiate the 
date by which the information must be submitted; or

[[Page 641]]

    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 939.773(b)(2)(ii) by the specified date, the Office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the application is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required by Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with actual site conditions. The applicant will be notified 
in advance of the time of the visit. At the time of the visit, the 
applicant shall have the locations of the proposed permit boundaries, 
topsoil storage areas, sediment control structures, roads, and other 
significant features contained in the application marked by flags.
    (c) In addition to the information required by subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) Where applicable, no person shall conduct surface coal 
exploration operations which result in the removal of more than 250 tons 
of coal nor shall any person conduct surface coal mining operations 
without a permit issued by the Secretary pursuant to 30 CFR part 773 and 
permits issued pursuant to State law, including: the Wetlands Protection 
Act (R.I. General Laws Section 2-1-22); Chapter 20 of the Waters and 
Navigation Act (petitions for ditches and drains) (R.I. General Laws 
Section 46-20-1 et seq.); the Coastal Resources Management Council Act 
of 1971 (R.I. General Laws Section 46-23-6); the Rhode Island Hazardous 
Waste Management Act of 1978 (R.I. General Laws Section 23-19.1-11 et 
seq.); the Rhode Island Act for Inspection of Dams and Reservoirs (R.I. 
General Laws Section 46-19-1 et seq.) and Chapter 23-28.28 of Rhode 
Island's Health and Safety Code (R.I. General Laws Section 23-28.28-1 et 
seq., permits for blasting), and an order of approval authorizing 
discharge of sewage into waterways within the State and modification or 
operation of sewage disposal systems if applicable (R.I. General Laws 
Sections 46-12-1 to 46-12-37). The permit issued by the Secretary shall 
incorporate the requirements of the Rhode Island Historical Zoning Act 
of 1954, as amended (R.I. General Laws Section 45-24.1-1 et seq.) and 
the Rhode Island Antiquities Act of 1974 (R.I. General Laws Section 42-
45.1-1 et seq.).
    (e) The Secretary shall coordinate review and issuance of a coal 
exploration or surface coal mining permit with the review and issuance 
of other Federal and State permits listed in this section and 30 CFR 
part 773.

[52 FR 13813, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 939.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved permit will be subject to review 
and approval by OSMRE.
    (1) Significant revisions shall be processed as if they are new 
applications in accordance with the public notice and hearing provisions 
of Sec. Sec. 773.6, 773.19(b) (1) and (2), and 778.21 and of part 775.
    (2) OSMRE shall make every effort to approve or disapprove an 
application for permit revision within 60 days of receipt or such longer 
time as may be reasonable under the circumstances. If additional time is 
needed, OSMRE shall notify the applicant that the application is being 
reviewed, but that more time is necessary to complete such review, 
setting forth the reasons and the additional time that is needed.
    (c) In addition to the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit

[[Page 642]]

rights, including an official of any Federal, State, or local government 
agency, may submit written comments on the application to the Office 
within thirty days of either the publication of the newspaper 
advertisement required by Sec. 774.17(b)(2) of this chapter or receipt 
of an administratively complete application, whichever is later.

[52 FR 13814, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 939.775  Administrative and judicial review of decisions.

    Part 775 of his chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.

[52 FR 13814, Apr. 24, 1987]



Sec. 939.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
Applications, shall apply to any person who applies for a permit to 
conduct surface coal mining and reclamation operations.

[52 FR 13814, Apr. 24, 1987]



Sec. 939.778  Permit applications--minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance and Related Information, shall apply to 
any person who applies for a permit to conduct surface coal mining and 
reclamation operations.

[52 FR 13814, Apr. 24, 1987]



Sec. 939.779  Surface mining permit applications--minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface coal mining 
and reclamation operations.



Sec. 939.780  Surface mining permit applications--minimum requirements for 

reclamation and operations plan.

    (a) Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations.
    (b) The applicant for a permit shall demonstrate compliance with 
Rhode Island air quality control laws (R.I. General Laws Section 23-23-1 
et seq.) by obtaining an order of approval from the Director of the 
Department of Environmental Management for any facility with the 
potential to emit one ton per year or more of any air contaminant 
pursuant to R.I. General Laws Section 23-23-15.



Sec. 939.783  Underground mining permit applications--minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who submits an application to conduct underground 
coal mining operations.



Sec. 939.784  Underground mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct underground coal mining.



Sec. 939.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.



Sec. 939.795  Small operator assistance.

    Part 795 of this chapter, Small Operator Assistance, shall apply to 
any person making application for assistance

[[Page 643]]

under the small operator assistance program.



Sec. 939.800  General requirements for bonding of surface coal mining and 

reclamation operations.

    Part 800 of this chapter, General Requirements for Bonding of 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, shall apply to all surface coal mining and reclamation 
operations.



Sec. 939.815  Performance standards--coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person conducting coal exploration 
operations.



Sec. 939.816  Performance standards--surface mining activities.

    Part 816 of this chapter, Permanent Program Performance Standards--
Surface Mining Activities, shall apply to any person who conducts 
surface coal mining and reclamation operations.



Sec. 939.817  Performance standards--underground mining activities.

    Part 817 of this chapter, Permanent Program Performance Standards--
Underground Mining Activities, shall apply to any person who conducts 
underground coal mining operations.



Sec. 939.819  Special performance standards--auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 939.823  Special performance standards--operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmlands.



Sec. 939.824  Special performance standards--mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface coal mining operations constituting mountaintop removal mining.



Sec. 939.827  Special performance standards--coal processing plants and 

support facilities not located at or near the minesite or not within the 

permit area for a mine.

    Part 827 of this chapter, Special Permanent Program Performance 
Standards--Coal Processing Plants and Support Facilities Not Located at 
or Near the Minesite or Not Within the Permit Area for a Mine, shall 
apply to any person who conducts surface coal mining and reclamation 
operations which include the operation of coal processing plants and 
support facilities not located at or near the minesite or not within the 
permit area for a mine.



Sec. 939.828  Special performance standards--in situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts in 
situ processing activities.



Sec. 939.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all coal exploration and surface coal mining and reclamation operations.
    (b) The Secretary will furnish copies of inspection reports and 
reports of any enforcement action taken to the Rhode Island Department 
of Environmental Management upon request.



Sec. 939.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall apply when 
enforcement action is required for violations on coal exploration or 
surface coal mining and reclamation operations.
    (b) The Office will furnish a copy of any order to show cause to the 
Rhode Island Department of Environmental Management upon request.

[[Page 644]]



Sec. 939.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply when civil 
penalties are assessed for violations on surface coal mining and 
reclamation operations.



Sec. 939.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 939.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19462, May 29, 1986]



PART 941_SOUTH DAKOTA--Table of Contents



Sec.
941.700 South Dakota Federal program.
941.701 General.
941.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
941.707 Exemption for coal extraction incident to Government-financed 
          highway or other construction.
941.761 Areas designated unsuitable for surface coal mining by act of 
          Congress.
941.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
941.764 Process for designating areas unsuitable for surface coal mining 
          operations.
941.772 Requirements for coal exploration.
941.773 Requirements for permits and permit processing.
941.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
941.775 Administrative and judicial review of decisions.
941.777 General content requirements for permit applications.
941.778 Permit applications--minimum requirements for legal, financial, 
          compliance, and related information.
941.779 Surface mining permit applications--minimum requirements for 
          information on environmental resources.
941.780 Surface mining permit applications--minimum requirements for 
          reclamation and operation plan.
941.783 Underground mining permit applications--minimum requirements for 
          information on environmental resources.
941.784 Underground mining permit applications--minimum requirements for 
          reclamation and operation plan.
941.785 Requirements for permits for special categories of mining.
941.795 Small operator assistance.
941.800 General requirements for bonding of surface coal mining and 
          reclamation operations.
941.815 Performance standards--coal exploration.
941.816 Performance standards--surface mining activities.
941.817 Performance standards--underground mining activities.
941.819 Special performance standards--auger mining.
941.822 Special performance standards--operations in alluvial valley 
          floors.
941.823 Special performance standards--operations on prime farmland.
941.824 Special performance standards--mountaintop removal.
941.827 Special performance standards--coal processing plants and 
          support facilities not located at or near the minesite or not 
          within the permit area for a mine.
941.828 Special performance standards--in situ processing.
941.842 Federal inspections.
941.843 Federal enforcement.
941.845 Civil penalties.
941.846 Individual civil penalties.
941.955 Certification of blasters.

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

    Source: 48 FR 16823, Apr. 19, 1983, unless otherwise noted.



Sec. 941.700  South Dakota Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in South Dakota which have been adopted under the 
Surface Mining Control and Reclamation Act of 1977.
    (b) The rules in this part cross-reference pertinent parts of the 
permanent program regulations in this chapter. The full text of a rule 
is in the permanent program rule cited under the relevant section of the 
South Dakota Federal program.
    (c) The rules in this part apply to all surface coal mining 
operations in South Dakota conducted on non-Federal and non-Indian 
lands. The rules in Subchapter D of this chapter apply to operations on 
Federal lands in South Dakota.
    (d) The recordkeeping and reporting requirements of this part are 
the same as those of the permanent program regulations which have been 
approved by

[[Page 645]]

the Office of Management and Budget under 44 U.S.C. 3507.
    (e) The following provisions of South Dakota laws provide, where 
applicable, for more stringent environmental control and regulation of 
surface coal mining operations than do the provisions of the Act and the 
regulations in this chapter. Therefore, pursuant to section 505(b) of 
the Act, they shall not be construed to be inconsistent with the Act:
    (1) South Dakota Compiled Laws Annotated (S. D. Comp. Laws Ann.) 
Chap. 45-6B, section 33(1)-(5) on lands unsuitable for mining.
    (2) S. D. Comp. Laws Ann. Chap. 45-6C, sections 16, 19, 27, and 28.
    (3) Weed Control, S. D. Comp. Laws Ann. Chap. 38-22.
    (4) Protection of fishing waters, S. D. Comp. Laws Ann. Chap. 41-13.
    (5) Remedies for protection of the environment, S. D. Comp. Laws 
Ann. Chap. 34A-10.
    (6) Air pollution control, S. D. Comp. Laws Ann. Chap. 34A-1.
    (7) Water pollution control, S. D. Comp. Laws Ann. Chap. 34A-2.
    (8) Solid waste disposal, S. D. Comp. Laws Ann. Chap. 34A-6.
    (9) Groundwater, S. D. Comp. Laws Ann. Chap. 46-6.
    (f) The following are South Dakota laws that interfere with the 
achievement of the purposes and requirements of the Act and are, in 
accordance with section 504(g) of the Act, preempted and superseded with 
respect to surface coal mining, except to the extent that they regulate 
surface coal mining operations which affect two acres or less, or which 
otherwise are not regulated by the Surface Mining Control and 
Reclamation Act.
    (1) S. D. Comp. Laws Ann. Chap. 45-6B, except with respect to the 
criteria for designating lands unsuitable for mining, section 33(1)-(5).
    (2) S. D. Comp. Laws Ann. Chap. 45-6C, except with respect to the 
requirements to consult with the owner of surface lands to be explored 
and the right of the owner to establish reasonable restrictions on 
exploration travel (section 16), the requirement to post an exploration 
reclamation bond (section 19), the prohibition of explosives use in 
exploration within one-half mile of a flowing water well or a domestic 
water well without the owner's permission (section 27), and the 
requirement to cap, plug, and seal all exploration test holes (section 
28).
    (g) The Secretary may grant a limited variance from the performance 
standards of Sec. Sec. 941.815 through 941.828 of this part if the 
applicant for coal exploration approval or a surface mining permit 
submitted pursuant to Sec. Sec. 941.772 through 941.785 demonstrates in 
the application that:
    (1) Such variance is necessary because of the unique nature of South 
Dakota's terrain, climate, biological, chemical, or other relevant 
physical conditions; and
    (2) The proposed alternative will achieve equal or greater 
environmental protection than does the performance requirement from 
which the variance is requested.

[48 FR 16823, Apr. 19, 1983, as amended at 52 FR 13814, Apr. 24, 1987]



Sec. 941.701  General.

    Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and part 701 
of this chapter shall apply to surface coal mining operations in South 
Dakota.



Sec. 941.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of other minerals 
for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]



Sec. 941.707  Exemption for coal extraction incident to Government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 941.761  Areas designated unsuitable for surface coal mining by act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply

[[Page 646]]

to surface coal mining and reclamation operations.



Sec. 941.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface coal mine 
operations.



Sec. 941.764  Process for designating areas unsuitable for surface coal mining 

operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to 
petitioning, initial processing, hearing requirements, decisions, data 
base and inventory systems, public information, and regulatory 
responsibilities shall apply to surface coal mine operations beginning 
one year after the effective date of this program.



Sec. 941.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
that more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.

[52 FR 13814, Apr. 24, 1987]



Sec. 941.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
application of the findings;
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and negotiate the 
date by which the information must be submitted; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 941.773(b)(2)(ii) by the specified date, the office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the application is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required by Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with actual site conditions. The applicant will be notified 
in advance of the time of the visit. At the time of the visit, the 
applicant shall have the locations of the proposed permit boundaries, 
topsoil storage areas, sediment control structures, roads, and other 
significant features contained in the application marked by flags.
    (c) In addition to the information required by Subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) Where applicable, no person shall conduct surface coal 
exploration operations which result in the removal of more than 250 tons 
of coal, nor shall any person conduct surface coal mining operations 
without a permit issued by the Secretary pursuant to 30 CFR part 773, 
and permits, leases and certificates

[[Page 647]]

required by the State of South Dakota including compliance with: (1) Air 
pollution control, S.D. Comp. Laws Ann. Chap. 34A-1; (2) water pollution 
control, S.D. Comp. Laws Ann. Chap. 34A-2; and (3) solid waste disposal, 
S.D. Comp. Laws Ann. Chap. 34A-6.
    (e) No person shall be granted a permit to conduct exploration which 
results in the removal of more than 250 tons of coal or shall conduct 
surface coal mining unless that person has acquired all required 
permits, leases, and certificates listed in paragraph (d) of this 
section.

[52 FR 13815, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 941.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved permit will be subject to review 
and approval by OSMRE.
    (1) Significant revisions shall be processed as if they are new 
applications in accordance with the public notice and hearing provisions 
of Sec. Sec. 773.6, 773.19(b)(1) and (2), and 778.21 and of part 775.
    (2) OSMRE shall make every effort to approve or disapprove an 
application for permit revision within 60 days of receipt or such longer 
time as may be reasonable under the circumstances. If additional time is 
needed, OSMRE shall notify the applicant that the application is being 
reviewed, but that more time is necessary to complete such review, 
setting forth the reasons and the additional time that is needed.
    (c) In addition to the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 
thirty days of either the publication of the newspaper advertisement 
required by Sec. 774.17(b)(2) of this chapter or receipt of an 
administratively complete application, whichever is later.

[52 FR 13815, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 941.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.

[52 FR 13815, Apr. 24, 1987]



Sec. 941.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
Applications, shall apply to any person who applies for a permit to 
conduct surface coal mining and reclamation operations.

[52 FR 13815, Apr. 24, 1987]



Sec. 941.778  Permit applications--minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance and Related Information, shall apply to 
any person who applies for a permit to conduct surface coal mining and 
reclamation operations.

[52 FR 13815, Apr. 24, 1987]



Sec. 941.779  Surface mining permit applications--minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface coal mining 
and reclamation operations.



Sec. 941.780  Surface mining permit applications--minimum requirements for 

reclamation and operation plan.

    (a) Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations.

[[Page 648]]

    (b) Each applicant for a permit shall demonstrate compliance with 
the South Dakota laws on air pollution, S. D. Comp. Laws Ann. Chap. 34A-
1, water pollution control, S. D. Comp. Laws Ann. Chap. 34A-2, and solid 
waste disposal, S. D. Comp. Laws Ann. Chap. 34A-6.



Sec. 941.783  Underground mining permit applications--minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who submits an application to conduct underground 
mining operations.



Sec. 941.784  Underground mining permit applications--minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct underground mining.



Sec. 941.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations.



Sec. 941.795  Small operator assistance.

    Part 795 of this chapter, Small Operator Assistance, shall apply to 
any person making application for assistance under the small operator 
assistance program.



Sec. 941.800  General requirements for bonding of surface coal mining and 

reclamation operations.

    Part 800 of this chapter, General Requirements for Bonding of 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, shall apply to all surface coal mining and reclamation 
operations.



Sec. 941.815  Performance standards--coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person conducting coal exploration 
operations.



Sec. 941.816  Performance standards--surface mining activities.

    Part 816 of this chapter, Permanent Program Performance Standards--
Surface Mining Activities, shall apply to any person who conducts 
surface coal mining and reclamation operations.



Sec. 941.817  Performance standards--underground mining activities.

    Part 817 of this chapter, Permanent Program Performance Standards--
Underground Mining Activities, shall apply to any person who conducts 
underground mining operations.



Sec. 941.819  Special performance standards--auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 941.822  Special performance standards--operations in alluvial valley 

floors.

    Part 822 of this chapter, Special Permanent Program Performance 
Standards--Operations in Alluvial Valley Floors, shall apply to any 
person who conducts surface coal mining and reclamation operations on 
alluvial valley floors.



Sec. 941.823  Special performance standards--operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmlands.



Sec. 941.824  Special performance standards--mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply

[[Page 649]]

to any person who conducts surface coal mining operations constituting 
mountaintop removal mining.



Sec. 941.827  Special performance standards--coal processing plants and 

support facilities not located at or near the minesite or not within the 

permit area for a mine.

    Part 827 of this chapter, Special Permanent Program Performance 
Standards--Coal Processing Plants and Support Facilities Not Located at 
or Near the Minesite or Not Within the Permit Area for a Mine, shall 
apply to any person who conducts surface coal mining and reclamation 
operations which include the operation of coal processing plants and 
support facilities not located at or near the minesite or not within the 
permit area for a mine.



Sec. 941.828  Special performance standards--in situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts in 
situ processing activities.



Sec. 941.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all exploration and surface coal mining and reclamation operations.
    (b) The Office will furnish a copy of any inspection report or 
enforcement action taken to the South Dakota Department of Water and 
Natural Resources upon request.



Sec. 941.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall apply when 
enforcement action is required for violations on surface coal mining and 
reclamation operations.
    (b) The Office will furnish a copy of each enforcement action and 
order to show cause issued pursuant to this section to the South Dakota 
Department of Water and Natural Resources upon request.



Sec. 941.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply when civil 
penalties are assessed for violations on surface coal mining and 
reclamation operations.



Sec. 941.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 941.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19462, May 29, 1986]



PART 942_TENNESSEE--Table of Contents



Sec.
942.20 Approval of Tennessee reclamation plan for lands and waters 
          affected by past coal mining.
942.700 Tennessee Federal program.
942.701 General.
942.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
942.707 Exemption for coal extraction incident to government-financed 
          highway or other construction.
942.761 Areas designated unsuitable for surface coal mining by act of 
          Congress.
942.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
942.764 Process for designating areas unsuitable for surface coal mining 
          operations.
942.772 Requirements for coal exploration.
942.773 Requirements for permits and permit processing.
942.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
942.775 Administrative and judicial review of decisions.
942.777 General content requirements for permit applications.
942.778 Permit applications--Minimum requirements for legal, financial, 
          compliance, and related information.
942.779 Surface mining permit applications--Minimum requirements for 
          information on environmental resources.
942.780 Surface mining permit applications--Minimum requirements for 
          reclamation and operation plan.
942.783 Underground mining permit applications--Minimum requirements for 
          information on environmental resources.

[[Page 650]]

942.784 Underground mining permit applications--Minimum requirements for 
          reclamation and operation plan.
942.785 Requirements for permits for special categories of mining.
942.795 Small operator assistance program.
942.800 Bond and insurance requirements for surface coal mining and 
          reclamation operations.
942.815 Performance standards--Coal exploration.
942.816 Performance standards--Surface mining activities.
942.817 Performance standards--Underground mining activities.
942.819 Special performance standards--Auger mining.
942.823 Special performance standards--Operations on prime farmland.
942.824 Special performance standards--Mountaintop removal.
942.827 Special performance standards--Coal preparation plants not 
          located within the permit area of a mine.
942.828 Special performance standards--In situ processing.
942.842 Federal inspections.
942.843 Federal enforcement.
942.845 Civil penalties.
942.846 Individual civil penalties.
942.955 Certification of blasters.

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

    Source: 49 FR 38892, Oct. 1, 1984, unless otherwise noted.



Sec. 942.20  Approval of Tennessee reclamation plan for lands and waters 

affected by past coal mining.

    The Tennessee Reclamation Plan, as submitted on March 24, 1982, is 
approved. Copies of the approved program are available at:

Office of Surface Mining Reclamation and Enforcement, 530 Gay Street, 
Suite 500, Knoxville, Tennessee 37902
State of Tennessee Department of Conservation, Division of Surface 
Mining and Reclamation, 305 West Springvale, Knoxville, Tennessee 37917
Office of Surface Mining Reclamation and Enforcement, Administrative 
Record, Room 5315, 1100 'L' Street, NW, Washington, DC 20240.



Sec. 942.700  Tennessee Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in Tennessee which have been adopted under the Surface 
Mining Control and Reclamation Act of 1977.
    (b) Certain of the rules in this part cross-reference pertinent 
parts of the permanent program regulations in this chapter. The full 
text of a cross-referenced rule is in the permanent program rule cited 
under the relevant section of this part.
    (c) This part applies to all surface coal mining operations in 
Tennessee conducted on non-Federal and non-Indian lands. To the extent 
required by part 740 of this chapter, this part also applies to 
operations on Federal lands in Tennessee.
    (d) The information collection requirements contained in this part 
have been approved by the office of Management and Budget under 44 
U.S.C. 3507 and assigned the following clearance numbers: 1029-0007, 
1029-0009, 1029-0032, 1029-0033, 1029-0034, 1029-0035, 1029-0036, 1029-
0038, 1029-0039, 1029-0040, 1029-0041, 1029-0043, 1029-0047, 1029-0048, 
1029-0049, 1029-0080.



Sec. 942.701  General.

    (a)(1) Except as provided in paragraphs (a)(2) and (a)(3) of this 
section, Sec. Sec. 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and 
part 701 of this chapter shall apply to coal exploration and surface 
coal mining and reclamation operations.
    (2) The definition of support facilities in Sec. 701.5 of this 
chapter shall not apply to surface coal mining and reclamation 
operations.
    (3) The definitions of surface coal mining operations in Sec. 
700.5, and coal preparation or coal processing and coal preparation 
plant in Sec. 701.5 of this chapter shall include facilities which 
leach, chemically process, or physically process coal.
    (b) Surface coal mining and reclamation operations in Tennessee 
which do not have a permanent program permit issued by the State of 
Tennessee prior to the effective date of this program, but which filed a 
permit application on a timely basis and were allowed to operate under 
the Tennessee State program, may continue to operate until the Office 
issues or denies a permit if they: (1) Comply with Subchapter B of this 
chapter until issuance or denial of a permit under this program; (2) 
authorize transfer to OSM of any permit application pending with the 
State regulatory authority; and (3) provide to

[[Page 651]]

the Office on a timely basis any requested additional information 
necessary to make a complete permit application.
    (c) Persons engaged in underground mining activities which do not 
have and did not apply for a permanent program permit from the State of 
Tennessee prior to the effective date of this program, but which were 
allowed to operate under the Tennessee State program, may continue to 
operate beyond eight months after the effective date of this program if 
they: (1) Within two months of the effective date of this program apply 
to OSM for a permit; (2) comply with Subchapter B of this chapter until 
issuance or denial of a permit under this program; and (3) provide to 
the Office on a timely basis any requested additional information 
necessary to make a complete permit application.
    (d) Persons operating facilities which leach, chemically process, or 
physically process coal which do not have a permanent program permit 
from the State of Tennessee prior to the effective date of this program, 
may continue to operate beyond eight months after the effective date of 
this program if they: (1) Within two months of the effective date of 
this program apply to OSM for a permit; (2) comply with Subchapter B of 
this chapter until issuance or denial of a permit under this program; 
and (3) provide to the Office on a timely basis any requested additional 
information necessary to make a complete permit application.
    (e) Records required by Sec. 700.14 of this chapter to be made 
available locally to the public shall be retained at OSM's Knoxville 
Field Office.



Sec. 942.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of other minerals 
for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]



Sec. 942.707  Exemption for coal extraction incident to government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 942.761  Areas designated unsuitable for surface coal mining by act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply to surface coal mining and reclamation operations.



Sec. 942.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    (a) Part 762 of this chapter, Criteria for Designating Areas as 
Unsuitable for Surface Coal Mining Operations, shall apply to surface 
coal mining and reclamation operations.
    (b) In addition to the lands defined as fragile lands in Sec. 762.5 
of this chapter, the Office in evaluating any petition to designate 
lands as unsuitable or to terminate such designation will consider lands 
included on the Tennessee Natural Areas Registry under Tennessee Code 
Annotated (TCA) section 11-14-112, Natural Areas designated by the 
Tennessee General Assembly under TCA 11-14-108, areas adjoining 
Tennessee Scenic Rivers designated under TCA 11-13-101, and Scenic 
Trails designated under TCA 11-11-101.



Sec. 942.764  Process for designating areas unsuitable for surface coal mining 

operations.

    (a) Part 764 of this chapter, State Process for Designating Areas 
Unsuitable for Surface Coal Mining Operations, shall apply to surface 
coal mining and reclamation operations.
    (b) The Secretary shall notify the Tennessee Department of Health 
and Environment of any area designated unsuitable or for which such 
designation has been requested or terminated.
    (c) Unsuitability designations made under the Tennessee State 
program shall remain valid unless and until terminated.

[[Page 652]]



Sec. 942.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, the 
Office shall notify the applicant that the application is being 
reviewed, but that more time is necessary to complete such reviews, 
setting forth the reasons and the additional time that is needed.

[53 FR 52950, Dec. 29, 1988]



Sec. 942.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
applicant of the findings;
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and the date by 
which the information must be submitted; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 942.773(b)(2)(ii) by the specified date, the Office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the application is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required by Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with actual site conditions. The applicant will be notified 
in advance of the time of the visit. At the time of the visit, the 
applicant shall have the locations of the proposed permit boundaries, 
topsoil storage areas, sediment control structures, roads, and other 
significant features contained in the application marked by flags.
    (6) Adequacy of information to allow the Office to comply with the 
National Environmental Policy Act, 42 U.S.C. 4322, shall be considered 
in the determination of a complete application. The Office may require 
specific additional information from the applicant as any environmental 
review progresses when such specific information is needed. Failure to 
submit the additional information by the date(s) requested could result 
in disapproval of the application.
    (c) In addition to the information required by subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) Review of Tennessee State program permits. In lieu of the 
provisions of Sec. 773.5(d)(2) of this chapter, the following shall 
apply:
    (1) Beginning on the effective date of this program, the Office will 
review all permanent program permits issued by the State of Tennessee.
    (2) If the Office determines that any State permit was granted 
contrary to the provisions of the Act, the Office will: (i) Notify the 
permittee in writing and state the reasons for its determination; (ii) 
provide the permittee a reasonable time within which to resubmit the 
permit application in whole or in part, as appropriate; (iii) provide 
the permittee a reasonable time within which to conform ongoing surface 
coal mining and reclamation operations to the requirements of this part; 
and (iv) provide the permittee with the opportunity for a non-
adjudicatory hearing

[[Page 653]]

to contest the determination by the Office.
    (3) If the permittee fails to resubmit the permit application or 
conform the ongoing surface coal mining and reclamation operations to 
the requirements of this part within the time specified, the Office may 
suspend or revoke the permit.
    (4) The Office's suspension or revocation of a permit under 
paragraph (d)(3) of this section shall be subject to administrative and 
judicial review in accordance with the provisions of part 775 of this 
chapter.

[49 FR 38892, Oct. 1, 1984, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 942.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved mining or reclamation plan will be 
subject to review and approval by the Office.
    (c) A significant revision to the mining or reclamation plan will be 
subject to the permit application information requirements and 
procedures of Subchapter G, including notice, public participation, and 
notice of decision requirements of Sec. 773.6, 773.19(b)(1) and (3), 
and 778.21, prior to approval and implementation. The Office will 
consider any proposed revision to be significant if it:
    (1) Will result in adverse impacts beyond those previously 
considered, affecting cultural resources listed on, or eligible to be 
listed on, the National Register of Historic Places;
    (2) Involves changes to the blasting plan that will be likely to 
cause adverse impacts beyond those previously considered, to persons or 
property outside of the permit area;
    (3) Will result in adverse impacts beyond those previously 
considered, affecting a water supply to which the requirements of 30 CFR 
816.41(h) apply;
    (4) Will cause a new or updated probable hydrologic consequences 
determination or cumulative hydrologic impact analysis to be required 
under 30 CFR 780.21(f)(4) or 780.21(g)(2) as a result of an increase in 
impacts;
    (5) Requires a change in the identification, disturbance, or 
handling of toxic- or acid-forming materials different from those 
previously considered, where the changes have the potential for causing 
additional impacts not previously considered;
    (6) Will result in adverse impacts on fish, wildlife and related 
environmental values beyond those previously considered;
    (7) Includes the proposed addition of a coal processing facility, or 
any permanent support facility, where the addition of the facility will 
cause impacts not previously considered, except that the addition of a 
temporary coal processing facility used exclusively for crushing and 
screening need not be considered a significant revision; or
    (8) Involves a change in the postmining land use to a residential, 
industrial/commercial, recreation or developed water resources land use, 
as defined in 30 CFR 701.5; except that a change to a developed water 
resource not meeting the size criteria of Sec. 77.216(a) of this title 
need not be considered a significant revision.
    (d) In addition to the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 
thirty days of either the publication of the newspaper advertisement 
required by Sec. 774.17(b)(2) of this chapter or receipt of an 
administratively complete application, whichever is later.

[49 FR 38892, Oct. 1, 1984, as amended at 53 FR 49106, Dec. 5, 1988; 65 
FR 79672, Dec. 19, 2000]



Sec. 942.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.



Sec. 942.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
Applications, shall apply to any person who

[[Page 654]]

makes application for a permit to conduct surface coal mining and 
reclamation operations.



Sec. 942.778  Permit applications--Minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance, and Related Information, shall apply 
to any person who makes application for a permit to conduct surface coal 
mining and reclamation operations.



Sec. 942.779  Surface mining permit applications--Minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface coal mining 
and reclamation operations.



Sec. 942.780  Surface mining permit applications--Minimum requirements for 

reclamation and operation plan.

    Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations.



Sec. 942.783  Underground mining permit applications--Minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct underground coal 
mining operations.



Sec. 942.784  Underground mining permit applications--Minimum requirements for 

reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application for a permit to conduct underground 
coal mining operations.



Sec. 942.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.



Sec. 942.795  Small operator assistance program.

    Part 795 of this chapter, Small Operator Assistance Program, shall 
apply to any person making application for assistance under the small 
operator assistance program.



Sec. 942.800  Bond and insurance requirements for surface coal mining and 

reclamation operations.

    (a) Except as provided in paragraphs (b) and (c) of this section, 
part 800 of this chapter, Bond and Insurance Requirements for Surface 
Coal Mining and Reclamation Operations Under Regulatory Programs, shall 
apply to any person conducting surface mining and reclamation 
operations.
    (b)(1) The Office shall review the adequacy of the bonds for those 
operators who posted reclamation bonds with the State of Tennessee under 
its permanent regulatory program prior to the effective date of this 
program,who gave the State collateral to guarantee reclamation, or who 
was required to take either of these actions.
    (2) Where the Office determines that a bond amount is inadequate it 
shall notify the operator that additional bond is required. The operator 
shall post the required bond or collateral in the amount and within the 
time required by the Office. All bonds shall be made payable to ``The 
United States or the State of Tennessee.''
    (3) Not later than 30 days after the effective date of this program 
each permanent program permittee shall either:
    (i) Post an acceptable new bond in the required amount made payable 
to ``The United States or The State of Tennessee'' or

[[Page 655]]

    (ii) Provide an executed assignment of the required acceptable bond 
made payable to ``The United States or The State of Tennessee.''
    (c) Special consideration for sites with long-term postmining 
pollutional discharges. With the approval of the Office, the permittee 
may establish a trust fund, annuity or both to guarantee treatment of 
long-term postmining pollutional discharges in lieu of posting one of 
the bond forms listed in Sec. 800.12 of this chapter for that purpose. 
The trust fund or annuity will be subject to the following conditions:
    (1) The Office will determine the amount of the trust fund or 
annuity, which must be adequate to meet all anticipated treatment needs, 
including both capital and operational expenses.
    (2) The trust fund or annuity must be in a form approved by the 
Office and contain all terms and conditions required by the Office.
    (3) The trust fund or annuity must provide that the United States or 
the State of Tennessee is irrevocably established as the beneficiary of 
the trust fund or of the proceeds from the annuity.
    (4) The Office will specify the investment objectives of the trust 
fund or annuity.
    (5) Termination of the trust fund or annuity may occur only as 
specified by the Office upon a determination that no further treatment 
or other reclamation measures are necessary, that a replacement bond or 
another financial instrument has been posted, or that the administration 
of the trust fund or annuity in accordance with its purpose requires 
termination.
    (6) Release of money from the trust fund or annuity may be made only 
upon written authorization of the Office or according to a schedule 
established in the agreement accompanying the trust fund or annuity.
    (7) A financial institution or company serving as a trustee or 
issuing an annuity must be one of the following:
    (i) A bank or trust company chartered by the Tennessee Department of 
Financial Institutions;
    (ii) A national bank chartered by the Office of the Comptroller of 
the Currency;
    (iii) An operating subsidiary of a national bank chartered by the 
Office of the Comptroller of the Currency;
    (iv) An insurance company licensed or authorized to do business in 
Tennessee by the Tennessee Department of Commerce and Insurance or 
designated by the Commissioner of that Department as an eligible surplus 
lines insurer; or
    (v) Any other financial institution or company with trust powers and 
with offices located in Tennessee, provided that the institution's or 
company's activities are examined or regulated by a State or Federal 
agency.
    (8) Trust funds and annuities, as described in this paragraph, must 
be established in a manner that guarantees that sufficient moneys will 
be available to pay for treatment of postmining pollutional discharges 
(including maintenance, renovation, and replacement of treatment and 
support facilities as needed), the reclamation of the sites upon which 
treatment facilities are located and areas used in support of those 
facilities.
    (9) When a trust fund or annuity is in place and fully funded, the 
Office may approve release under Sec. 800.40(c)(3) of this chapter of 
conventional bonds posted for a permit or permit increment, provided 
that, apart from the pollutional discharge and associated treatment 
facilities, the area fully meets all applicable reclamation requirements 
and the trust fund or annuity is sufficient for treatment of pollutional 
discharges and reclamation of all areas involved in such treatment. The 
portion of the permit required for postmining water treatment must 
remain bonded. However, the trust fund or annuity may serve as that 
bond.

[49 FR 38892, Oct. 1, 1984, as amended at 72 FR 9636, Mar. 2, 2007]



Sec. 942.815  Performance standards--Coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person who conducts coal 
exploration.



Sec. 942.816  Performance standards--Surface mining activities.

    (a) Except as modified by paragraphs (b) through (h) of this 
section, part 816

[[Page 656]]

of this chapter, Permanent Program Performance Standards--Surface Mining 
Activities, shall apply to any person who conducts surface mining 
activities in the State of Tennessee.
    (b) The permittee shall comply with the site-specific terms of the 
permit except that references to provisions of the Tennessee State 
program shall be read to require compliance with the relevant provisions 
of this part. Where the permit does not specify site-specific standards 
with which compliance is required, the permittee shall comply with the 
standards of this part.
    (c) Diversions. In lieu of the requirements of Sec. 816.43(a)(4) of 
this chapter, diversion design shall incorporate the following 
requirements:
    (1) Channel lining shall be designed using standard engineering 
practices to pass safely the design velocities. Riprap shall comply with 
the requirement of Sec. 816.71(f)(3) of this chapter, except for sand 
and gravel.
    (2) Freeboard shall be no less than 0.3 feet. Protection shall be 
provided for transition of flows and for critical areas such as swales 
and curves. Where the area protected is a critical area as determined by 
the Office, the design freeboard may be increased.
    (3) Energy dissipators shall be installed when necessary at 
discharge points, where diversions intersect with natural streams and 
exit velocity of the diversion ditch flow is greater than that of the 
receiving stream.
    (4) Excess excavated material not utilized in diversion channel 
geometry or regrading of the channel shall be disposed of in accordance 
with Sec. Sec. 816.71 through 816.74 of this chapter.
    (d) Hydrologic Balance: Siltation Structures. In lieu of the 
requirements of Sec. 816.46(c)(1)(iii)(A) of this chapter, 
sedimentation ponds shall provide a storage volume of no less than 0.2 
acre feet per disturbed acre draining into the basin. The Office may 
approve lesser sediment storage volumes equal to the sediment calculated 
to enter the pond between planned cleanout intervals upon submission and 
approval of a plan for removing sedimentation from the pond which 
includes a description of the equipment to be used. The minimum sediment 
storage volume shall be equal to 0.1 acre feet per disturbed acre.
    (e) Backfilling and grading: General requirements. In addition to 
the requirements of Sec. 816.102 of this chapter, backfilling and 
grading shall proceed in accordance with the following timing 
requirements:
    (1) Contour mining. Rough backfilling and grading shall follow coal 
removal by not more than 60 days or 1,500 linear feet.
    (2) Area mining. Rough backfilling and grading shall be completed 
within 180 days following coal removal and shall not be more than four 
spoil ridges behind the pit being worked, the spoil from the active pit 
being considered the first ridge.
    (3) The Office may grant additional time for rough backfilling and 
grading if the permittee can demonstrate, through the detailed written 
analysis under Sec. 780.18(b)(3) of this chapter, that additional time 
is necessary.
    (f) In lieu of the requirements of Sec. 816.116 (b)(1) through 
(b)(3) of this chapter, the following revegetation success standards and 
sampling techniques shall be used by this Office.
    (1) For areas developed for use as pasture or hay production, the 
ground cover shall be at least ninety percent (90%) and crop production 
shall be equal to or greater than the average county yield as stated by 
the Tennessee Crop Reporting Service for the county in which the permit 
area is located.
    (2) For areas developed for use as cropland, crop production shall 
be equal to or greater than the average county yield as stated by the 
Tennessee Crop Reporting Service for the county in which the permit area 
is located. Adjustment for local yield variation within the county may 
be made for disease, pests, weather-induced variations, and differences 
in crop management practices.
    (3) For areas developed for wildlife habitat, undeveloped land, 
recreation, or forestry, the stocking of woody plants must be at least 
equal to the rates specified in the approved reclamation plan. To 
minimize competition with woody plants, herbaceous ground cover should 
be limited to that

[[Page 657]]

necessary to control erosion and support the postmining land use. Seed 
mixes and seeding rates will be specified in the permit.
    (i) Minimum stocking levels and planting arrangements shall be 
specified by the Office on the basis of local and regional conditions 
and after consultation with the State agencies responsible for the 
administration of forestry and wildlife programs.
    (ii) Trees and shrubs that will be used in determining the success 
of stocking and the adequacy of plant arrangement shall have utility for 
the approved postmining land use. At the time of bond release, such 
trees and shrubs shall be healthy, and at least eighty percent (80%) 
shall have been in place for at least three growing seasons. No trees 
and shrubs in place for less than two growing seasons shall be counted 
in determining stocking adequacy.
    (iii) Vegetative ground cover shall not be less than that required 
to achieve the approved postmining land use.
    (4) Bare areas shall not exceed one-sixteenth (1/16) acre in size 
and total not more than ten percent (10%) of the area seeded, except for 
areas developed for wildlife habitat, undeveloped land, recreation, or 
forestry.
    (5) Distribution of woody plants within the permit area shall be 
consistent with the post-mining land use.
    (6) Sampling techniques for measuring woody plant stocking and 
ground cover shall be in accordance with techniques approved by the 
Office. Actual crop yields shall be used to determine production.
    (g) Roads. In lieu of the requirements of section 816.150(c) of this 
chapter, roads shall be designed and constructed or reconstructed in 
compliance with the following standards in order to control subsequent 
erosion and disturbance of the hydrologic balance.
    (1) Primary Roads. (i) Except for existing roads and where lesser 
grades are necessary to control site-specific conditions, the overall 
grades shall not exceed lv:10h (10 percent); the maximum pitch grade 
shall not exceed lv:6.5h (15 percent); and there shall be not more than 
three hundred (300) feet of pitch grade exceeding ten (10) percent 
within any consecutive one thousand (1,000) feet of primary roads. In no 
case shall there by any pitch grade over fifteen (15) percent.
    (ii) Culvert spacing shall not exceed one thousand (1,000) feet on 
grades of zero (0) to three (3) percent, eight hundred (800) feet on 
grades of three (3) to six (6) percent, five hundred (500) feet on 
grades of six (6) to ten (10) percent, and three hundred (300) feet on 
grades of ten (10) percent or greater. Culverts shall be installed at 
closer intervals than the maximum in this part if required by the Office 
as appropriate for the erosive properties of the soil or to accommodate 
flow from small intersecting drainages. Culverts may be constructed at 
greater intervals than the maximum indicated in this part if approved by 
the Office upon a finding that greater spacing will not increase 
erosion.
    (iii) Culverts shall be covered by compacted fill to a minimum depth 
of one foot.
    (2) Ancillary Roads. (i) Field design methods may be utilized for 
ancillary roads.
    (ii) Where lesser grades are necessary to control site-specific 
conditions overall grade shall not exceed lv:10h (10 percent). Pitch 
grade shall not exceed lv:5h (20 percent). There shall not be more than 
one thousand (1,000) consecutive feet of maximum pitch grade.
    (iii) Ancillary roads may meander so as to avoid large growths of 
vegetation and other natural obstructions.
    (iv) Compaction on road embankments shall be only to the extent 
necessary to control erosion and maintain the road.
    (v) Temporary culverts and bridges shall be sized to safely pass the 
one (1) year, six (6) hour precipitation event.
    (h) Use of Explosives. In lieu of the requirements of Sec. 
816.64(a)(2) of this chapter, all blasting shall be conducted between 
sunrise and sunset. Blasting may not be conducted at times different 
from those announced in the blasting schedule except in emergency 
situations where rain, lightning, or other atmospheric conditions, or 
operator or public safety requires unscheduled

[[Page 658]]

blasts. The Office may specify more restrictive time periods for 
blasting.

[49 FR 38892, Oct. 1, 1984, as amended at 52 FR 47717, Dec. 16, 1987; 55 
FR 20600, May 18, 1990; 72 FR 9637, Mar. 2, 2007]



Sec. 942.817  Performance standards--Underground mining activities.

    (a) Part 817 of this chapter, Permanent Program Performance 
Standards--Underground Mining Activities, as modified by paragraphs (b)-
(f) of this section, shall apply to any person who conducts underground 
mining activities in the State of Tennessee.
    (b) The permittee shall comply with the site-specific terms of the 
permit except that references to provisions of the Tennessee State 
program shall be read to require compliance with the relevant provisions 
of this part. Where the permit does not specify site-specific standards 
with which compliance is required, the permittee shall comply with the 
standards of this part.
    (c) Diversions. In lieu of the requirements of Sec. 817.43(a)(4) of 
this chapter diversion design shall incorporate the following 
requirements:
    (1) Channel lining shall be designed using standards engineering 
practices to pass safely the design velocities. Riprap shall comply with 
the requirements of Sec. 817.71(f)(3) of this chapter, except for sand 
and gravel.
    (2) Freeboard shall be no less than 0.3 feet. Protection shall be 
provided for transition of flows and for critical areas such as swales 
and curves. Where the area protected is a critical area as determined by 
the Office, the design freeboard may be increased.
    (3) Energy dissipators shall be installed when necessary at 
discharge points, where diversions intersect with natural streams and 
exit velocity of the diversion ditch flow is greater than that of the 
receiving stream.
    (4) Excess excavated material not utilized in diversion channel 
geometry or regrading of the channel shall be disposed of in accordance 
with Sec. Sec. 817.71 through 817.74 of this chapter.
    (d) Hydrologic balance: Siltation structures. In lieu of the 
requirements of Sec. 817.46(c)(1)(ii)(A) of this chapter, sedimentation 
ponds shall provide a storage volume of no less than 0.2 acre feet per 
distributed acre draining into the basin. The Office may approve less 
sediment storage volumes equal to the sediment calculated to enter the 
pond between planned cleanout intervals upon submission and approval of 
a plan for removing sediment from the pond which includes a description 
of the equipment to be used. The minimum sediment storage volume shall 
be equal to 0.1 acre feet per disturbed acre.
    (e) In lieu of the requirements of Sec. 817.116 (b)(1) through 
(b)(3) of this chapter, the following revegetation success standards and 
sampling techniques shall be used by this Office.
    (1) For areas developed for use as pasture or hay production, the 
ground cover shall be at least ninety percent (90%) and crop production 
shall be equal to or greater than the average county yield as stated by 
the Tennessee Crop Reporting Service for the county in which the permit 
area is located.
    (2) For areas developed for use as cropland, crop production shall 
be equal to or greater than the average county yield as stated by the 
Tennessee Crop Reporting Service for the county in which the permit area 
is located. Adjustment for local yield variation within the county may 
be made for disease, pests, weather-induced variations, and differences 
in crop management practices.
    (3) For areas developed for wildlife habitat, undeveloped land, 
recreation, or forestry, the stocking of woody plants must be at least 
equal to the rates specified in the approved reclamation plan. To 
minimize competition with woody plants, herbaceous ground cover should 
be limited to that necessary to control erosion and support the 
postmining land use. Seed mixes and seeding rates will be specified in 
the permit.
    (i) Minimum stocking levels and planting arrangements shall be 
specified by the Office on the basis of local and regional conditions 
and after consultation with the State agencies responsible for the 
administration of forestry and wildlife programs.
    (ii) Trees and shrubs that will be used in determining the success 
of stocking and the adequacy of plant arrangement shall have utility for 
the approved postmining land use. At the time of

[[Page 659]]

bond release, such trees and shrubs shall be healthy, and at least 
eighty percent (80%) shall have been in place for at least three growing 
seasons. No trees and shrubs in place for less than two growing seasons 
shall be counted in determining stocking adequacy.
    (iii) Vegetative ground cover shall not be less than that required 
to achieve the approved postmining land use.
    (4) Bare areas shall not exceed one-sixteenth (1/16) acre in size 
and total not more than ten percent (10%) of the area seeded, except for 
areas developed for wildlife habitat, undeveloped land, recreation, or 
forestry.
    (5) Distribution of woody plants within the permit area shall be 
consistent with the post-mining land use.
    (6) Sampling techniques for measuring woody plant stocking and 
ground cover shall be in accordance with techniques approved by the 
Office. Actual crop yields shall be used to determine production.
    (f) Roads. In lieu of the requirements of Sec. 817.150(c) of this 
chapter, roads shall be designed and constructed or reconstructed in 
compliance with the following standards in order to control subsequent 
erosion and disturbance of the hydrologic balance.
    (1) Primary roads. (i) Except for existing roads and where lesser 
grades are necessary to control site-specific conditions, the overall 
grade shall not exceed lv:10h (10 percent), the maximum pitch grade 
shall not exceed lv:6.5h (15 percent), and there shall be not more than 
three hundred (300) feet of pitch grade exceeding ten (10) percent 
within any consecutive one thousand (1,000) feet of primary roads. In no 
case shall there be any pitch grade over fifteen (15) percent.
    (ii) Culvert spacing shall not exceed one thousand (1,000) feet on 
grades of zero (0) to three (3) percent, eight hundred (800) feet on 
grades of three (3) to six (6) percent, and five hundred (500) feet on 
grades of six (6) to ten (10) percent, and three hundred (300) feet on 
grades of ten (10) percent or greater. Culverts shall be installed at 
closer intervals than the maximum in this part if required by the Office 
as appropriate for the erosive properties of the soil or to accommodate 
flow from small intersecting drainages. Culverts may be constructed at 
greater intervals than the maximum indicated in this part if approved by 
the Office upon a finding that greater spacing will not increase 
erosion.
    (iii) Culverts shall be covered by compacted fill to a minimum depth 
of one foot.
    (2) Ancillary roads. (i) Field design methods may be utilized for 
ancillary roads.
    (ii) Where lesser grades are necesary to control site-specific 
condition, overall grade shall not exceed lv:10h (10 percent). Pitch 
grade shall not exceed 1v:5h (20 percent). There shall not be more than 
one thousand (1,000) consecutive feet of maximum pitch grade.
    (iii) Ancillary roads may meander so as to avoid large growths of 
vegetation and other natural obstructions.
    (iv) Compaction on road embankments shall be only to the exten 
necessary to control erosion and maintain the road.
    (v) Temporary culverts and bridges shall be sized to safely pass the 
one (1) year, six (6) hour precipitation event.

[49 FR 38892, Oct. 1, 1984, as amended at 52 FR 47717, Dec. 16, 1987; 72 
FR 9637, Mar. 2, 2007]



Sec. 942.819  Special performance standards--Auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 942.823  Special performance standards--Operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining operations on prime farmland.



Sec. 942.824  Special performance standards--Mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface

[[Page 660]]

coal mining and reclamation operations constituting mountaintop removal.



Sec. 942.827  Special performance standards--Coal preparation plants not 

located within the permit area of a mine.

    Part 827 of this chapter, Permanent Program Performance Standards--
Coal Preparation Plants Not Located Within the Permit Area of a Mine, 
shall apply to any person who conducts surface coal mining and 
reclamation operations which include the operation of a coal preparation 
plant not located within the permit area of a mine.



Sec. 942.828  Special performance standards--In situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts 
surface coal mining and reclamation operations which include the in situ 
processing of coal.



Sec. 942.842  Federal inspections.

    Part 842 of this chapter, Federal Inspections, shall apply to all 
exploration and surface coal mining and reclamation operations.



Sec. 942.843  Federal enforcement.

    Part 843 of this chapter, Federal Enforcement, shall apply regarding 
enforcement action on coal exploration and surface coal mining and 
reclamation operations.



Sec. 942.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply to the 
assessment of civil penalties for violations on coal exploration and 
surface coal mining and reclamation operations.



Sec. 942.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 942.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19462, May 29, 1986]



PART 943_TEXAS--Table of Contents



Sec.
943.1 Scope.
943.10 State regulatory program approval.
943.15 Approval of Texas regulatory program amendments.
943.16 Required program amendments.
943.20 Approval of Texas abandoned mine land reclamation plan.
943.25 Approval of Texas abandoned mine land reclamation plan 
          amendments.

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



Sec. 943.1  Scope.

    This part contains all rules applicable only within Texas which have 
been adopted under the Surface Mining Control and Reclamation Act of 
1977.

[45 FR 13008, Feb. 27, 1980]



Sec. 943.10  State regulatory program approval.

    The Secretary approved the Texas regulatory program, as submitted on 
July 20, 1979, and amended on November 13, 1979, and December 20, 1979, 
effective February 16, 1980. Copies of the approved program are 
available at:
    (a) Surface Mining and Reclamation Division, Railroad Commission of 
Texas, Capitol Station, P.O. Box 12967, Austin, TX 78711.
    (b) Office of Surface Mining Reclamation and Enforcement, Tulsa 
Field Office, 5100 East Skelly Drive, Suite 470, Tulsa, OK 74135-6548.

[64 FR 20168, Apr. 26, 1999]



Sec. 943.15  Approval of Texas regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

[[Page 661]]



----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
March 27, 1980.......................  June 18, 1980, November  TCMR 051.07.04.023, .070.
                                        26, 1980.
September 18, 1981...................  June 3, 1982...........  TCMR 05.07.01.313(a).
August 31, 1984......................  July 9, 1985...........  TCMR 051.07.04.008, .138, .184, .201, .340,
                                                                 .510, .620 through .625.
August 24, 1988......................  December 11, 1989......  TCMR 806.309(j)(1)(A) through (H), (2)(A)
                                                                 through (D), (4)(A), (B), (C), (5)(A), (B),
                                                                 (6)(A) through (E), (7), (8).
June 24, 1991........................  February 19, 1992......  TCMR 806.309(j)(1)(H), (I), 806.309(j)(2), (3),
                                                                 (7), (8), (9).
December 23, 1991....................  April 17, 1992.........  TCMR 816.394.
September 12, 1989...................  May 21, 1992...........  TCMR 701.008(53), 778.116(a) through (l), (n);
                                                                 786.215(e)(2), .221(d), .225(h).
September 22, 1989...................  August 19, 1992........  TCMR 700.002(b)(2), .003(22), .008(18), (56),
                                                                 (81), (85); 762.074(1), (2); 770.100(c), .101,
                                                                 .102(c); 771.107(d), .108; 776.111(a)(3)(A),
                                                                 (7), (b), (1); 779.125(b), .126(a), .133;
                                                                 780.144(a), .145(b)(4), .151; 783.171(b), .172,
                                                                 .179; 784.187(b)(4), .191, .194(a), (e), (f),
                                                                 .195(a); 785.200(a), (b), (c), (f) through (i);
                                                                 786.216(p); 788.230(a)(4), (5), (6);
                                                                 788.232(c)(1), (d), (e); 795.237(b)(5), (c),
                                                                 (d), .238(d)(4), .243(a); 800.301(b); 808.317;
                                                                 815.327(a), (f); 816.339(a), .344(a), .353(d),
                                                                 .359 through .362, .363(j), (i), (o), (p),
                                                                 .368(c), .369(a), .371(c)(3), .375(d), .377(b),
                                                                 .380(b), (c), .384(b)(2), .390(a); 817.509(a),
                                                                 .514(a), .531(j), (i), (o), (p), .547(b), (c),
                                                                 .551(b)(2), .562(c), .565(e); 819.600(c)(1);
                                                                 840.672(b); 843.680(a), .682(f); 845.695(b)(2);
                                                                 850.700, .701, .702(a) through (d), .703
                                                                 through .710; recodification of the TCMR
                                                                 700.001 through 845.698.
February 8, 1993.....................  March 21, 1994.........  TCMR 778.116(l), (m); 786.215(e)(1), (2), (g);
                                                                 788.225(e), (1)(A), (2), (3), (f), (1), (2),
                                                                 (g); 843.680(c).
May 24, 1994.........................  March 27, 1995.........  TCMR 778.116(m); 786.215(e)(1), (f), .216(i)
                                                                 through (o), .225(f)(3), (4), (g), (1), (i)
                                                                 through (iv), (2), (h).
August 11, 1995......................  December 13, 1995......  TCMR 806.309(j)(2)(C)(iv)(I)(A) through (C),
                                                                 (II)(A) through (C).
December 20, 1995....................  April 8, 1996..........  TCMR 701.008(71); 780.154(a) through (c);
                                                                 784.198(a) through (c); 816.400 through 403;
                                                                 815.327(c); 817.569 through 572; 827.651(b).
August 30, 1995, September 18, 1995..  June 18, 1996..........  TSMCRA Article 5920-11, 6(b), 21(a), (c); TCMR
                                                                 701.008(104); 778.116(m), .225(g)(1).
August 24, 1995......................  January 30, 1997.......  Recodification of TSMCRA Article 5920-11, 1
                                                                 through 38; 4 Ch. 134.001 through .188.
May 13, 1993.........................  March 26, 1997.........  TCMR 700.002(b)(4), (5), (f); .003(1), (3);
                                                                 701.008(4), (5), (9), (10, (18), (19), 21),
                                                                 (24), (25), (26), (34), (41), (55), (67), (68),
                                                                 (69), (70), (76), (82), (84), (95), (102),
                                                                 (107); 705.010(a)(3), (c); .011(2), (3), (5),
                                                                 (9); .013(a); .014; .015(a); .016(a); 707.022;
                                                                 709.025; .026; .027; .028; .029; .030; .031;
                                                                 .032; .033, .034; 760.069; .070(5), (6), (7),
                                                                 (9), (11); 761.071 (a) through (e); .072 (a)
                                                                 through (h); .073; 762.074(3), (4), (5);
                                                                 .075(a), (b); .076(a); .077; 764.078; .079(a),
                                                                 (b), (c); .080(a)(1), (2), (4) through (7),
                                                                 (b), (c), (d); .081(a), (b); .082(a)(3), (b),
                                                                 (c), (d); .083(a), (b); .084(a), (b); .085(b);
                                                                 770.101; 776.111(a)(e)(E); 779.126(d); .127(a),
                                                                 (b), (c); .128(a), (3), (4), (b); .129, (a),
                                                                 (b), (1), (3); 780.141(g), (h); .142(b)(11),
                                                                 (c), (d), .146 (a) through (e); .148(a)(3)(i),
                                                                 (c)(1), (2), (3); 783.172(d); .173 (a) through
                                                                 (e); .174(a), (3), (4), (b); .175, (a), (b),
                                                                 (1), (3); 784.188 (a) through (f); .190
                                                                 (a)(3)(i), (c)(1), (2), (3); .197(c), (d);
                                                                 785.201(b), (c), (d)(2); .202(b)(1)(i), (2),
                                                                 (3); 786.210 (a) through (e); .216(c), (e);
                                                                 .220(d); 800.301(b)(2); .311(d); 807.312(a),
                                                                 (b), (c); .313(a)(2); 815.327(a); .328(a), (b);
                                                                 816.330(f); .340; .341; .342; .344; .347; .348;
                                                                 .349; .350; .355; .357(a), (c), (d); .358 (a)
                                                                 through (d); .360(a)(2), (A), (B), (f)(1)(A),
                                                                 (g)(2), (h)(1), (2), (3), (i); .362(d); .376
                                                                 (a) through (d), .377, .378(a), (c);
                                                                 .380(e)(10); .385(b)(3); .390; .395; .396;
                                                                 817.500(f); .509(a); .510; .511; .512; .514;
                                                                 .517; .519; .522(f); .524; .526(b), (c), (d);
                                                                 .527 (a) through (d); .528 (a) through (i);
                                                                 .529; .530, (c), (d), (e), (g), (j), (s), (t);
                                                                 .535(c); .538(c)(3); .543 (a) through (d);
                                                                 .544; .545(a), (c); .547(e)(10); .552(b)(3);
                                                                 .555; .560; .561; 823.620(a), (b), (c);
                                                                 .621(a)(1), (2), (3), (b); .622(a), (b), (c);
                                                                 .623; .624 (a) through (g); .625(a), (b);
                                                                 843.681(c), (f) through (j); .682(a)(1);
                                                                 .695(b)(1); 846.001; .002; .003; .004; .005;
                                                                 850.703(b)(1)(A); .704(b); .706(a).
October 21, 1996.....................  April 29, 1997.........  TCMR 701.008(77); 779.130; 816.352.
December 1, 1997.....................  March 3, 1998..........  TSCMRA 134.004(3); 134.005(a)(2); 134.008;
                                                                 134.014(b); 134.022(c); 134.056(2); 134.068;
                                                                 134.069(a)(2) and (b); 134.084(a) through (d);
                                                                 134.092(a)(2); 134.163(1). Vernon's Texas Civil
                                                                 Statutes Article 5920-11, Sections 6(b), 21(c),
                                                                 33(e) and 21a.
January 23, 1998.....................  April 22, 1998.........  Recodification; 16 TAC 12.1 through 12.710.
December 1, 1997.....................  June 8, 1998...........  16 TAC 12.3; 12.201(d)(5); 12.237(2), (2)(B) and
                                                                 (C); 12.243(a), (a)(4) and (5); 12.309(1);
                                                                 12.312(a) and (b); 12.313(a), (b), (d), and
                                                                 (f); 12.387; 12.388.
January 28, 1999.....................  May 3, 1999............  Sections 12.143(a)(2), (b)(1) and (b)(2);
                                                                 .145(b)(3); .187(b)(3); .199(2); .379; .389;
                                                                 .546; .554; and .651(9) and (13).
May 13, 1999.........................  August 12, 1999........  Procedures and Standards for Determining
                                                                 Revegetation Success on Surface-Mined Lands in
                                                                 Texas; Normal Husbandry Practices for Surface-
                                                                 Mined Lands in Texas.
August 24, 2000......................  November 24, 2000......  TAC Sec.  12.80(a)(1), (3)-(7); (b)(2)-(3);
                                                                 Sec.  12.385(a); (e)-(e)(2)(D); Sec.
                                                                 12.552(a); (e)-(e)(2)(D); and Sec.
                                                                 12.651(13).

[[Page 662]]

 
July 25, 2001........................  November 6, 2002.......  Sections 12.3(169) definition of ``surface coal
                                                                 mining operations which exist on the date of
                                                                 enactment [removed] and 12.3(187) definition of
                                                                 ``valid existing rights;'' 12.71-.74; 12.77;
                                                                 12.111(1)(H); 12.112(b)(4); 12.113(a);
                                                                 12.118(a) and (c); 12.151(a)(2); 12.158(a) and
                                                                 (c); 12.191(a)(2); 12.207(a)(5); and
                                                                 12.216(4)(A).
February 12, 2003....................  July 7, 2003...........  16 TAC Sec.  1.130.
July 10, 2003........................  November 5, 2003.......  TAC 12.108(b).
June 4, 2004.........................  September 14, 2004.....  16 TAC 12.108(b).
October 6, 2005......................  February 17, 2006......  TSCMRA Section 134.055; and 16 TAC 12.108(a) and
                                                                 (b).
July 26, 2005........................  June 14, 2006..........  Procedures and Standards for Determining
                                                                 Revegetation Success on Surface-Mined Lands in
                                                                 Texas--Table of Contents; Section V.D.1., D.2.;
                                                                 appendix B; Attachment 2; Normal Husbandry
                                                                 Practices for Surface-Mined Lands in Texas--
                                                                 Table of Contents; Section IV.E.
February 14, 2007....................  November 19, 2007......  TSCMRA 134.174(b); TAC 12.147(a) through (a)(3);
                                                                 12.309(g)(2); 12.337(a) and (b) through (b)(3);
                                                                 12.395(a)(1), (b)(1), (b)(3), (b)(3)(A) and
                                                                 (B), and (c)(3) and (4); 12.681(a), (b) through
                                                                 (b)(3), (c), (e), (f), (g), and (h); 12.682(a)
                                                                 and (b); 12.688; 12.689(b) through (b)(3); and
                                                                 12.693.
October 2, 2007......................  March 17, 2008.........  16 TAC 12.108(b)(1) through (b)(3).
January 5, 2010......................  December 27, 2010......  16 TAC 12.108(b)(1) through (b)(3).
----------------------------------------------------------------------------------------------------------------


[62 FR 9954, Mar. 5, 1997, as amended at 62 FR 14325, Mar. 26, 1997; 62 
FR 19395, Apr. 21, 1997; 62 FR 23138, Apr. 29, 1997; 62 FR 32687, June 
17, 1997; 63 FR 10320, Mar. 3, 1998; 63 FR 19823, Apr. 22, 1998; 63 FR 
31116, June 8, 1998; 64 FR 23541, May 3, 1999; 64 FR 43923, Aug. 12, 
1999; 65 FR 70489, Nov. 24, 2000; 67 FR 67534, Nov. 6, 2002; 68 FR 
40157, July 7, 2003; 68 FR 62519, Nov. 5, 2003; 69 FR 55358, Sept. 14, 
2004; 71 FR 8460, Feb. 17, 2006; 71 FR 34255, June 14, 2006; 72 FR 
64946, Nov. 19, 2007; 73 FR 14181, Mar. 17, 2008; 75 FR 81125, Dec. 27, 
2010]



Sec. 943.16  Required program amendments.

    Pursuant to 30 CFR 732.17(f)(1), Texas is required to submit to OSM 
by the specified date the following written, proposed program amendment, 
or a description of an amendment to be proposed that meets the 
requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with Texas' established administrative or 
legislative procedures.
    (a)-(j) [Reserved]

[51 FR 28555, Aug. 8, 1986, as amended at 57 FR 21607, May 21, 1992; 57 
FR 37458, Aug. 19, 1992; 59 FR 13209, Mar. 21, 1994; 60 FR 15680, Mar. 
27, 1995; 61 FR 30808, June 18, 1996; 62 FR 14326, Mar. 26, 1997]



Sec. 943.20  Approval of Texas abandoned mine land reclamation plan.

    The Secretary approved the Texas abandoned mine land reclamation 
plan, as submitted on April 24, 1980, and amended on May 30, 1980, June 
2, 1980, and June 4, 1980, effective June 23, 1980. Copies of the 
approved plan are available at:
    (a) Surface Mining and Reclamation Division, Railroad Commission of 
Texas, Capitol Station, P.O. Box 12967, Austin, TX 78711.
    (b) Office of Surface Mining Reclamation and Enforcement, Tulsa 
Field Office, 5100 East Skelly Drive, Suite 470, Tulsa, OK 74135-6548.

[64 FR 20168, Apr. 26, 1999]



Sec. 943.25  Approval of Texas abandoned mine land reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
May 11 and 26, 1989..................  August 19, 1992........  Certification of the completion of reclamation
                                                                 on all lands adversely impacted by past coal
                                                                 mining.
August 24, 1997......................  January 30, 1997.......  Recodification of TSMCRA Article 5920-11, Sec.
                                                                 3(7); 4 Ch. 134.142.
December 1, 1997.....................  March 3, 1998..........  TSCMRA 134.142.
January 23, 1998.....................  April 22, 1998.........  Recodification; 16 TAC 12.800 through 12.817.

[[Page 663]]

 
December 1, 1997.....................  November 25, 1998......  12.800 through .814; .815(d); .816; .818 through
                                                                 .823.
October 11, 2006.....................  February 6, 2007.......  Emergency response reclamation program; AML Plan
                                                                 sections 884.13(c)(6), (d)(2) and (d)(3).
February 14, 2007....................  November 19, 2007......  TSCMRA 134.150(c) and TAC 12.816(c)
----------------------------------------------------------------------------------------------------------------


[62 FR 9954, Mar. 5, 1997, as amended at 63 FR 10320, Mar. 3, 1998; 63 
FR 19823, Apr. 22, 1998; 63 FR 65070, Nov. 25, 1998; 72 FR 5333, Feb. 6, 
2007; 72 FR 64946, Nov. 19, 2007]



PART 944_UTAH--Table of Contents



Sec.
944.1 Scope.
944.10 State regulatory program approval.
944.15 Approval of Utah regulatory program amendments.
944.16 [Reserved]
944.20 Approval of Utah abandoned mine plan.
944.25 Approval of Utah abandoned mine land reclamation plan amendments.
944.30 State-Federal Cooperative Agreement.

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



Sec. 944.1  Scope.

    This part contains all rules applicable only within Utah that have 
been adopted under the Surface Mining and Reclamation Act of 1977.

[46 FR 5913, Jan. 21, 1981]



Sec. 944.10  State regulatory program approval.

    The Utah State program as submitted on March 3, 1980, and as amended 
and clarified on June 16 and July 24, 1980, and resubmitted on December 
23, 1980, was conditionally approved effective January 21, 1981. Copies 
of the approved program, together with copies of the letter of the 
Division of Oil, Gas and Mining agreeing to the conditions in section 
944.11, are available at:
    (a) Division of Oil, Gas and Mining, Department of Natural 
Resources, 3 Triad Center, suite 350, 355 West North Temple, Salt Lake 
City, UT 84180-1203.
    (b) Office of Surface Mining Reclamation and Enforcement, Western 
Regional Coordinating Center, Technical Library, 1999 Broadway, Suite 
3320, Denver, Colorado 80202-5733.

[59 FR 17933, Apr. 15, 1994, as amended at 60 FR 54593, Oct. 25, 1995]



Sec. 944.15  Approval of Utah regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
June 29, 1981........................  June 22, 1982..........  UCA 40-10-10, -11, -16, -17, -18, -21, -22, -24;
                                                                 UMC 784.20(b)(3)(v); 817.124(b).
May 21, 1981.........................  September 27, 1982.....  SMC/UMC 845; Vegetation Information Guidelines.
August 26, 1982......................  December 13, 1982......  SMC 816.53(c); UMC 817.42(a)(3)(i), (ii),
                                                                 .53(c), .101(b)(8), (c).
December 3, 1982.....................  March 7, 1983..........  SMC/UMC 785.19(c)(3)(ii); SMC 816.72(b), (c);
                                                                 UMC 817.72(b), (c).
February 6, 1984.....................  August 29, 1984........  SMC/UMC 816/817.42; 840.11; 843.12.
August 13, 1984......................  December 3, 1985.......  SMC/UMC 700.1, .5--definition for ``affected
                                                                 area;'' 800, .5, .11 through .17, .20 through
                                                                 .23, .30, .40, .50, .60; 805 through 808;
                                                                 843.11, .15, .16; 845.12, .13, .17 through .20.
September 25, 1985...................  December 18, 1985......  SMC/UMC 843.13.
October 9, 1985......................  January 16, 1986.......  SMC/UMC 700.5--definition for ``incidental
                                                                 boundary change;'' 771.21(b)(3); 778.12.
January 21, 1985.....................  June 10, 1986..........  Definitions for ``adjacent area,'' ``disturbed
                                                                 area,'' ``permit area,'' ``mine plan area;''
                                                                 SMC 843.11, .15, .16, .20; 845.12, .13, .17,
                                                                 .18, .19.
March 3, 1986........................  July 28, 1986..........  SMC/UMC 816/817.61; 850; Memorandum of Agreement
                                                                 between the Board and Division of Oil, Gas, and
                                                                 Mining and the Utah Industrial Commission; UCA
                                                                 40-2-14 through -16; Utah Industrial
                                                                 Commission's General Safety Orders, Coal
                                                                 Mining, Sec. Sec.  51 through 53.
September 3, 1986....................  January 28, 1987.......  SMC/UMC 700.5--definitions for ``coal
                                                                 processing,'' ``coal processing plant''.

[[Page 664]]

 
February 17, 1987....................  March 28, 1988.........  SMC/UMC 845.15(b)(1)(ii), (2).
September 24, 1987...................  August 18, 1988........  SMC/UMC 785.19(e)(2).
August 11, 1989......................  April 12, 1990.........  Utah Admin. R. 614-100 through -105, -200
                                                                 through -203, -300; -301, -100 through -800; -
                                                                 302, -100 through -300; -303, -100 through -
                                                                 300; -400, -100 through -300; -401, -100
                                                                 through -900; -402, -100 through -500.
November 13, 1989....................  August 13, 1990........  UCA 40-10-10, -14, -20, -21, -25, -30, -31.
October 10, 1990.....................  January 29, 1991.......  UCA 40-10-6.5(1), (2), (3); 6.6(1), (2).
July 3, 1990.........................  August 23, 1991........  Utah Admin. R. 614-100-200, definitions of
                                                                 ``fragile lands,'' ``owned or controlled,''
                                                                 ``owns or controls,'' ``unwarranted failure to
                                                                 comply,'' ``valid existing rights;'' -415; 614-
                                                                 103-220 through -222; 614-105-443; 614-201-400
                                                                 through -432, .100, .300, -433, -434; 614-300-
                                                                 112.500, -132.100, .120, .200, .300, -148,
                                                                 .100, .200, -160, -161, -162.100 through .300,
                                                                 163, .100 through .400, -164, .100 through
                                                                 .300, -170; 614-301-112.200 through .420, .900,
                                                                 -113.300 through .310, .400, -352, -356.110 and
                                                                 Vegetation Information.
March 1, 1991........................  November 22, 1991......  Utah Admin. R. 614-100-200, definition for
                                                                 ``public road''.
December 30, 1991....................  May 11, 1992...........  Utah Admin. R. 645-100-200 definitions for
                                                                 ``cumulative impact area,'' ``cumulative
                                                                 measurement period,'' ``cumulative
                                                                 production,'' ``cumulative revenue,'' ``mining
                                                                 area,'' ``other minerals;'' -414; 645-106-100,
                                                                 200 through -262, -300 through -326, -400
                                                                 through -430, -500 through -522, -600 through -
                                                                 616, -700 through -724, -800 through -843, -900
                                                                 through -926; 645-300-211.
July 26, 1991........................  August 19, 1992........  UCA 40-10-5(1), (b), (2), -6.6(1), (2), (3).
November 20, 1991....................  September 11, 1992.....  Utah Admin. R. 645-100-200, -400 through -452;
                                                                 645-103-220; 645-301-111.400, -356.231, -425, -
                                                                 512.140, -528.320, -553.800, -731.750, -
                                                                 742.224; 645-300-110, Guideline for Examining
                                                                 and Evaluating Violations, Penalties, and Fees;
                                                                 Vegetation Information Guidelines.
November 5, 1992.....................  March 30, 1993.........  Utah Admin. R. 614-100-452.
April 30, 1992.......................  September 17, 1993.....  Utah Admin. R. 645-100-200, definition for
                                                                 ``highwall;'' 645-301-553, .100, .130, .510,
                                                                 .520, .521, .523, .620, .630 through .633, .652
                                                                 through .655.
September 17, 1992...................  April 7, 1994..........  Utah Admin. R. 645-100-200, definitions for
                                                                 ``affected area,'' ``public road,'' ``road''.
March 7, 1994........................  May 24, 1994...........  Utah Admin. R. 645-303-224.400 through .600.
August 2, 1993.......................  July 11, 1994..........  Utah Admin. R. 641-112; R645-100-500; 645-103-
                                                                 441; 645-203-200; 645-301-524.661, -731.760;
                                                                 645-302-314.110, -323.310.
January 27, 1994.....................  September 27, 1994.....  Utah Admin. R. 645-200-121, -122, -123, -220, -
                                                                 230; 645-201-100 through -130, -200 through -
                                                                 220, -223, -310, -323.100, -342.200; 645-202-
                                                                 100, -232, -235.
March 7, 1994........................  September 27, 1994.....  UCA 40-10-14(3), 20(1), (2), (3), (5), (6), (8).
September 9, 1994....................  March 27, 1995.........  Utah Admin. R. 645-203-200.
February 10, 1995....................  May 2, 1995............  Utah Admin. R. 645-401-120, -410, -430, -721, -
                                                                 723.100, -742, -810, -830, -910; 645-402-120, -
                                                                 420, -422.
November 12, 1993....................  May 30, 1995...........  Utah Admin. R. 645-100-200, definition for
                                                                 ``continuously mined areas;'' 645-301-553, .100
                                                                 through .130, .150, .200 through .230, .252,
                                                                 .300, .500 through .540, .600 through .612,
                                                                 .650, .650.100 through .500.
April 14, 1994.......................  July 19, 1995..........  UCA 40-10-2(1) through (6), -3(1) through (22),
                                                                 4, -6.5(1), (2), (3), .7, -7(1), -8(1), (3), -
                                                                 10(2), -11(1), (2)(a) through (d), (e)(ii),
                                                                 (f)(i), (iii), (3), (4), (a), (b), (5)(a)
                                                                 through (c), -12(3), -13(2)(b), -14(2), (3),
                                                                 (6), -15(1), -16(1), (3), (6)(a) through (d), -
                                                                 17(2)(g), (j)(i)(B), (ii)(A), (B), (2)(m), (o),
                                                                 (o)(i), (iv), (v), (p)(i)(F), (ii), (iii),
                                                                 (t)(i), (ii), (2)(v), (viii), (3)(b), (ii),
                                                                 (c), (4)(a), (d), (5), -18(1), (2)(i)(i)(B),
                                                                 (j), (4)(a) through (c), (5), -19(1), (2)(a), -
                                                                 20(2)(e)(ii), -21(1)(a)(i), (ii), (2)(a)(ii),
                                                                 (5), -22(1)(c), (d), (2)(a)(i), (b), (3)(a),
                                                                 (b), (d), (e), (f), -24(1)(c)(i)(A), (B), (C),
                                                                 (D), (ii), (e)(i), (ii), (iii), (2)(a), (b), -
                                                                 30; Utah Admin. R. 641-100-100.
February 6, 1995.....................  September 14, 1995.....  Utah Admin. R. 645-301-357.300 through .365,
                                                                 Vegetation Information Guidelines.
November 30, 1995, December 4, 1995,   September 4, 1996......  Utah Admin. R. 645-100-500; 645-301-553.110,
 March 11, 1996.                                                 .120.
May 27, 1997.........................  August 4, 1997.........  Definition of ``adjudicative proceeding'' at UCA
                                                                 40-10-3(1), (a), (b); 40-10-11 (3), (5)(a); 40-
                                                                 10-13(2)(b); 40-10-17 (2) (j) (ii) (B), (p)
                                                                 (ii), (iii), (3) (a), (c), (4), (a), (d); 40-10-
                                                                 18 (1), (2), (3)(a), (i) through (iii), (b),
                                                                 (4), (5), (6) (a), (b), (i) through (iii), (7),
                                                                 (8), (a), (b), (9), (10), (11), (a), (i)
                                                                 through (iii), (b), (c), (12)(a), (i) through
                                                                 (iii), (b), (13), (14), (15)(a), (b) (i)
                                                                 through (iv), (c), (d), (e); 40-10-18.1, .2, 40-
                                                                 10-20(2)(e)(ii).
June 8, 1998.........................  November 16, 1998......  UCA 40-10-11(1)(a)(i), (a)(ii), (1)(b), (1)(c),
                                                                 (c)(i), and (c)(ii); (2), (2)(a), (2)(b),
                                                                 (2)(c), (2)(d), (2)(d)(i), (d)(ii), (2)(e),
                                                                 (2)(e)(i), (e)(i)(A), (e)(i)(B), (e)(ii),
                                                                 (2)(f), (2)(f)(i), (f)(i)(A), (f)(i(B), and
                                                                 (f)(iii); (3)(a)(i), (a)(ii), (3)(b), and
                                                                 (3)(c); (4)(a)(i), (a)(ii), and (4)(b); and
                                                                 (5)(a).

[[Page 665]]

 
December 23, 1999....................  4/24/01................  Definitions of ``abandoned site,'' ``other
                                                                 treatment facilities,'' ``previously mined
                                                                 area,'' ``qualified laboratory,'' and
                                                                 ``significant recreational, timber, economic,
                                                                 or other values incompatible with coal mining
                                                                 and reclamation operations'' at Utah Admin. R.
                                                                 645-100-200; Utah Admin. R. 645-301-514.320 and
                                                                 -514.330; -301-531; -301-533.100 and -533.110;
                                                                 301-533.200 and 210; -301-533-610 through 614;
                                                                 301-533.620; -301-533.700 through 714; -301-
                                                                 553.700; -301-553.800; -301-733.100; -301-
                                                                 733.210; -301-742.200; -301-742.224; -301-
                                                                 742.225, -742.225.1 and -742.225.2; -301-
                                                                 743.100; -301-743.120; -301-743.131.3 through
                                                                 131.6; -301-880.130; -302-316.500; R. 645-
                                                                 400.132; and R. 645-401-810.
March 20, 1998.......................  December 4, 2001.......  Definitions of ``material damage,'' ``non-
                                                                 commercial building,'' ``occupied residential
                                                                 dwelling and structures related thereto,'',
                                                                 ``replacement of water supply,'' and ``State-
                                                                 appropriated water supply'' at Utah Admin. R.
                                                                 645-100-200; 645-301-525 through 525.170; 645-
                                                                 301-525.200 through 525.240; 645-301-525.300
                                                                 through 525.313; 645-301-525.400 through
                                                                 525.490; 645-301-525.500 through 525.550; 545-
                                                                 301-525.600; 645-301-525.700; 645-301-724.600;
                                                                 645-301-728.340; 645-301- 728.350; and 645-301-
                                                                 731.530.
March 28, 2002.......................  November 6, 2002.......  Definition of ``Water Supply,'' ``State-
                                                                 appropriated Water,'' and ``State-appropriated
                                                                 Water Supply'' at Utah Admin. R. 645-100-200;
                                                                 Utah Admin. R. 645-105-310 through -314; R. 645-
                                                                 301-525.130 and -525.700; Utah Admin. R. 645-
                                                                 301-728.350; R. 645-301-860.110 through -
                                                                 860.112; R. 645-400-162; and R. 645-400-319, -
                                                                 322, and -381.
October 22, 2002.....................  August 27, 2008........  Utah Code Annotated 40-10-10(1), (2)(a)(i)
                                                                 through (vi), (2)(b)(i), (i)(A) and (i)(B), and
                                                                 (ii), (2)(c)(i), (c)(i)(A) through (C), and
                                                                 (2)(c)(iii), (3)(a), (b), and (c), and (4)(a)
                                                                 and (b). Decision deferred on UCA 40-10-
                                                                 10(2)(d) through (2)(d)(ii) and 40-10-10(5).
November 28, 2005 and February 16,     June 8, 2006...........  Utah Adm. R. 645-301-160, 645-301-512.100, 645-
 2006.                                                           401-330, and 645-401-400.
August 31, 2007......................  August 12, 2008........  Utah Code Annotated 40-10-10(2)(d), (5), 40-10-
                                                                 12(1)(e).
                                                                Utah Admin R 645-303-222.
May 28, 2008.........................  September 1, 2009......  Utah Admin. R.645-100-200 definition of
                                                                 intermittent stream; 645-301-131.300; 645-301-
                                                                 535.210; 645-301-535.223; 645-301-551; 645-301-
                                                                 631; 645-301-631.200; 645-301-731.610, 645-301-
                                                                 742.320; 645-301-742.321; 645-301-742.323, 645-
                                                                 301-742.324, 645-301-742.331, 645-301-742.412;
                                                                 645-301-765.
May 19, 2009.........................  December 7, 2009.......  UCA Sec.  40-10-11, 40-10-17/Deletion of repeal
                                                                 dates for remining provisions.
----------------------------------------------------------------------------------------------------------------


[62 FR 9955, Mar. 5, 1997, as amended at 62 FR 41849, Aug. 4, 1997; 63 
FR 63611, Nov. 16, 1998; 66 FR 20606, Apr. 24, 2001; 66 FR 62935, Dec. 
4, 2001; 67 FR 67540, Nov. 6, 2002; 71 FR 33254, June 8, 2006; 73 FR 
46807, Aug. 12, 2008; 73 FR 50545, Aug. 27, 2008; 74 FR 45120, Sept. 1, 
2009; 74 FR 63990, Dec. 7, 2009]



Sec. 944.16  [Reserved]



Sec. 944.20  Approval of Utah abandoned mine plan.

    The Utah Abandoned Mine Plan, as submitted on February 9, 1983, and 
as subsequently revised, is approved effective June 3, 1983. Copies of 
the approved program are available at:
    (a) Division of Oil, Gas and Mining, Department of Natural 
Resources, 3 Triad Center, Suite 350, 355 West North Temple, Salt Lake 
City, UT 84180-1203, Telephone: (801)538-5340.
    (b) Office of Surface Mining Reclamation and Enforcement, Western 
Regional Coordinating Center, Technical Library, 1999 Broadway, Suite 
3320, Denver, Colorado 80202-5733.

[60 FR 33725, June 29, 1995, as amended at 60 FR 54593, Oct. 25, 1995]



Sec. 944.25  Approval of Utah abandoned mine land reclamation plan amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

[[Page 666]]



----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
July 26, 1991........................  August 19, 1992........  UCA 40-10-25(1), (2)(c), (e), (f), (3)(a), (b),
                                                                 (c), .1(1)(a), (b), (2)(a), (b), (c), (3)(a)
                                                                 through (d), .2(1), (2), -27(10)(b), -28.1(1)
                                                                 through (7).
March 7, 1994........................  September 27, 1994.....  UCA 40-10-28(1), (a)(i), (b), (2)(b), .1(6).
April 14, 1994.......................  July 19, 1995..........  UCA 40-10-25(2)(d), (e), (3), (a), (b), (4),
                                                                 (5), (6), -27(5)(a), (12)(b), -28(1)(a)(ii),
                                                                 (2)(a).
May 27, 1997.........................  August 4, 1997.........  UCA 40-10-25(6)(b).
August 2, 1995.......................  February 22, 1999......  Utah Admin. R. 643-870-500; 643-874-100 and -
                                                                 110; 643-874-124 through -128; 643-874-130
                                                                 through -132; 643-874-140 through -144; 643-874-
                                                                 150; 643-874-160; 643-875-120 through -200; 643-
                                                                 877-141; 643-879-141; 643-879-152.200, -153,
                                                                 and -154; 643-882-132; 643-884-150; and 643-886-
                                                                 232.240.
----------------------------------------------------------------------------------------------------------------


[62 FR 9956, Mar. 5, 1997, as amended at 62 FR 41850, Aug. 4, 1997; 64 
FR 8517, Feb. 22, 1999]



Sec. 944.30  State-Federal Cooperative Agreement.

    The Governor of the State of Utah (Governor) and the Secretary of 
the Department of the Interior (Secretary) enter into a Cooperative 
Agreement (Agreement) to read as follows:

       Article I: Introduction, Purposes and Responsible Agencies

    A. Authority: This Agreement is authorized by section 523(c) of the 
Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. 1273(c), 
which allows a State with a permanent regulatory program approved by the 
Secretary of the Interior under 30 U.S.C. 1253, to elect to enter into 
an agreement for State regulation of surface coal mining and reclamation 
operations on Federal lands. This Agreement provides for State 
regulation of coal exploration operations not subject to 43 CFR part 
3480 through 3487, and surface coal mining and reclamation operations 
and activities in Utah on Federal lands (30 CFR Chapter VII Subchapter 
D), consistent with SMCRA and the Utah Code Annotated (State Act) 
governing such activities and the Utah State Program (Program).
    B. Purposes: The purposes of this Agreement are to (a) foster 
Federal-State cooperation in the regulation of surface coal mining and 
reclamation operations and activities and coal exploration operations 
not subject to 43 CFR part 3480, Subparts 3480 through 3487; (b) 
minimize intergovernmental overlap and duplication; and (c) provide 
uniform and effective application of the Program on all lands in Utah in 
accordance with SMCRA, the Program, and this Agreement.
    C. Responsible Administrative Agencies: The Utah Division of Oil, 
Gas, and Mining (DOGM) will be responsible for administering this 
Agreement on behalf of the Governor. The Office of Surface Mining 
Reclamation and Enforcement (OSMRE) will administer this Agreement on 
behalf of the Secretary.

                       Article II: Effective Date

    After being signed by the Secretary and the Governor, this Agreement 
will take effect 30 days after publication in the Federal Regiser as a 
final rule. This agreement will remain in effect until terminated as 
provided in Article XI.

                        Article III: Definitions

    The terms and phrases used in this Agreement which are defined in 
SMCRA 30 CFR parts 700, 701 and 740, the Program, including the State 
Act, and the rules and regulations promulgated pursuant to that Act, 
will be given the meanings set forth in said definitions.
    Where there is a conflict between the above referenced State and 
Federal definitions, the definitions used in the Program will apply.

                        Article IV: Applicability

    In accordance with the Federal lands program, the laws, regulations, 
terms and conditions of the Program are applicable to Federal lands in 
Utah except as otherwise stated in this Agreement, SMCRA 30 CFR 740.4, 
740.11(a) and 745.13, and other applicable Federal laws, Executive 
Orders, or regulations.

                     Article V: General Requirements

    The Governor and the Secretary affirm that they will comply with all 
the provisions of this Agreement.
    A. Authority of State Agency: DOGM has and will continue to have the 
authority under State law to carry out this Agreement
    B. Funds: 1. Upon application by DOGM and subject to appropriations, 
OSMRE will provide the State with the funds to defray the costs 
associated with carrying out its responsibilities under this Agreement 
as provided in section 705(c) of the Federal Act, the grant agreement, 
and 30 CFR 735.16. Such funds will cover the full cost incurred by DOGM 
in carrying out these responsibilities, provided that such cost does not 
exceed the estimated cost the Federal government

[[Page 667]]

would have expended on such responsibilities in the absence of this 
Agreement; and provided that such State-incurred cost per permitted acre 
of Federal lands does not exceed the per permitted area costs for 
similar administration and enforcement activities of the Program on non-
Federal and non-Indian lands during the same time period.
    2. The ratio or cost split of Federal to non-Federal dollars 
allocated under the cooperative agreement will be determined by OSMRE 
and DOGM based on the projected costs for regulation of mines within 
Federal lands, in consideration of the relative amounts of Federal and 
non-Federal land involved. The designation of mines, based on Federal 
and non-federal land, will be prepared by DOGM and submitted to OSMRE's 
Albuquerque Field Office. OSMRE's Albuquerque Field Office and OSMRE's 
Western Field Operations office will work with DOGM to estimate the 
amount the Federal government would have expended for regulation of 
Federal lands in Utah in the absence of this Agreement.
    3. OSMRE and the State will discuss the OSMRE Federal lands cost 
estimate, the DOGM-prepared list of acres by mine, and the State's 
overall cost estimate. After resolution of any issues, DOGM will submit 
its grant application to OSMRE's Albuquerque Field Office. The Federal 
lands/non-Federal lands ratio will be applied to the final eligible 
total State expenditures to arrive at the total Federal reimbursement 
due the State. Assuming timely submission, this ratio or cost split will 
be agreed upon by July of the year preceding the applicable fiscal year 
in order to enable the State to budget funds for the Program.
    The State may use the existing year's budget totals, adjusted for 
inflation and workload considerations in estimating the regulatory costs 
for the following grant year. OSMRE will notify DOGM as soon as possible 
if such projections are unrealistic.
    4. If DOGM applies for a grant but sufficient funds have not been 
appropriated to OSMRE, OSMRE and DOGM will promptly meet to decide on 
appropriate measures that will insure that mining operations on Federal 
lands in Utah are regulated in accordance with the Program.
    5. Funds provided to the DOGM under this Agreement will be adjusted 
in accordance with Office of Management and Budget Circular A-102, 
Attachment E.
    C. Reports and Records: DOGM will make annual reports to OSMRE 
containing information with respect to compliance with the terms of this 
Agreement pursuant to 30 CFR 745.12(d). DOGM and OSMRE will exchange, 
upon request, except where prohibited by Federal or State law, 
information developed under this Agreement.
    OSMRE will provide DOGM with a copy of any final evaluation report 
prepared concerning State administration and enforcement of this 
Agreement. DOGM comments on the report will be appended before 
transmission to the Congress or other interested parties.
    D. Personnel: DOGM will maintain the necessary personnel to fully 
implement this Agreement in accordance with the provisions of SMCRA the 
Federal lands program, and the Program.
    E. Equipment and Laboratories: DOGM will assure itself access to 
equipment, laboratories, and facilities with which all inspections, 
investigations, studies, tests, and analyses can be performed which are 
necessary to carry out the requirements of the Agreement.
    F. Permit Application Fees and Civil Penalties: The amount of the 
fee accompanying an application for a permit for operations on Federal 
lands in Utah will be determined in accordance with 40-10-6(5), Utah 
Code Annotated 1953 as amended and UMC/SMC 771.25 of the State 
regulations, and the applicable provisions of the Program and Federal 
law. All permit fees and civil penalty fines collected from operations 
on Federal lands will be retained by the State and will be deposited 
with the State Treasurer. Permit fees will be considered program income. 
Civil penalty fines will not be considered program income and will be 
deposited in an account for use in reclaiming abandoned mine sites. The 
financial status report submitted pursuant to 30 CFR 735.26 will include 
a report of the amount of fees collected during the State's prior fiscal 
year.

            Article VI: Review of Permit Application Package

    A. Submission of Permit Application Package: DOGM and the Secretary 
require an applicant proposing to conduct surface coal mining and 
reclamation operations and activities on Federal lands to submit a 
permit application package (PAP) in an appropriate number of copies to 
DOGM. DOGM will furnish OSMRE and other Federal agencies with an 
appropriate number of copies of the PAP. The PAP will be in the form 
required by DOGM and will include any supplemental information required 
by OSMRE and the Federal land management agency. Where section 522(e)(3) 
of SMCRA applies, DOGM will work with the agency with jurisdiction over 
the publicly owned park, including units of the National Park System, or 
historic property included in the National Register of Historic Places 
(NRHP) to determine what supplemental information will be required.
    At a minimum, the PAP will satisfy the requirements of 30 CFR part 
740 and include the information necessary for DOGM to make a 
determination of compliance with

[[Page 668]]

the Program and for OSMRE and the appropriate Federal agencies to make 
determinations of compliance with applicable requirements of SMCRA, the 
Federal lands program, and other Federal laws, Executive Orders, and 
regulations for which they are responsible.
    B. Review Procedures Where There is No Leased Federal Coal Involved: 
1. DOGM will assume the responsibilities for review of permit 
applications where there is no leased Federal coal to the extent 
authorized in 30 CFR 740.4(c) (1), (2), (4), (6) and (7). In addition to 
consultation with the Federal land management agency pursuant to 30 CFR 
740.4 (c)(2), DOGM will be responsible for obtaining, except for non-
significant revisions or amendments, the comments and determinations of 
other Federal agencies with jurisdiction or responsibility over Federal 
lands affected by the operations proposed in the PAP. DOGM will request 
such Federal agencies to furnish their findings or any requests for 
additional information to DOGM within 45 calendar days of the date of 
receipt of the PAP. OSMRE will assist DOGM in obtaining this 
information, upon request.
    Responsibilities and decisions which can be delegated to DOGM under 
other applicable Federal laws may be specified in working agreements 
between OSMRE and the State, with the concurrence of any Federal agency 
involved, and without amendment to this agreement.
    2. DOGM will assume primary responsibility for the analysis, review 
and approval or disapproval of the permit application component of the 
PAP required by 30 CFR 740.13 for surface coal mining and reclamation 
operations and activities in Utah on Federal lands not requiring a 
mining plan pursuant to the Mineral Leasing Act (MLA). DOGM will review 
the PAP for compliance with the Program and State Act and regulations. 
DOGM will be the primary point of contact for applicants regarding 
decisions on the PAP and will be responsible for informing the applicant 
of determinations.
    3. The Secretary will make his non-delegable determinations under 
SMCRA, some of which have been delegated to OSMRE.
    4. OSMRE and DOGM will coordinate with each other during the review 
process as needed. OSMRE will provide technical assistance to DOGM when 
requested, if available resources allow. DOGM will keep OSMRE informed 
of findings made during the review process which bear on the 
responsibilities of OSMRE or other Federal agencies. OSMRE may provide 
assistance to DOGM in resolving conflicts with Federal land management 
agencies. OSMRE will be responsible for ensuring that any information 
OSMRE receives from an applicant is promptly sent to DOGM. OSMRE will 
have access to DOGM files concerning operations on Federal lands. OSMRE 
will send to DOGM copies of all resulting correspondence between OSMRE 
and the applicant that may have a bearing on decisions regarding the 
PAP. The Secretary reserves the right to act independently of DOGM to 
carry out his responsibilities under laws other than SMCRA.
    5. DOGM will make a decision on approval or disapproval of the 
permit on Federal lands.
    (a) Any permit issued by DOGM will incorporate any terms or 
conditions imposed by the Federal land management agency, including 
conditions relating to post-mining land use, and will be conditioned on 
compliance with the requirements of the Federal land management agency. 
In the case that VER is determined to exist on Federal lands under 
section 522(e)(3) of SMCRA where the proposed operation will adversely 
affect a unit of the National Park System (NPS), DOGM will work with the 
NPS to develop mutually agreed upon terms and conditions for 
incorporation into the permit to mitigate environmental impact as set 
forth under Article X of this agreement.
    (b) The permit will include terms and conditions required by other 
applicable Federal laws and regulations.
    (c) After making its decision on the PAP, DOGM will send a notice to 
the applicant, OSMRE, the Federal land management agency, and any agency 
with jurisdiction over a publicly owned park or historic property 
included in the NRHP which would be affected by a design under section 
522(e)(3) of SMCRA. A copy of the permit and written findings will be 
submitted to OSMRE if requested.
    C. Review Procedures Where Leased Federal Coal is Involved: 1. DOGM 
will assume the responsibilities listed in 30 CFR 740.4(c) (1), (2), 
(3), (4), (6) and (7), to the extent authorized.
    In accordance with 30 CFR 740.4(c)(1), DOGM will assume primary 
responsibility for the analysis, review and approval or disapproval of 
the permit application component of the PAP for surface coal mining and 
reclamation operations and activities in Utah where a mining plan is 
required. OSMRE will, at the request of the State, assist to the extent 
possible in this analysis and review.
    The Secretary will concurrently carry out his responsibilities that 
cannot be delegated to DOGM under the Federal lands program, MLA, the 
National Environmental Policy Act (NEPA), this Agreement, and other 
applicable Federal laws. The Secretary will carry out these 
responsibilities in a timely manner and will avoid, to the extent 
possible, duplication of the responsibilities of the State as set forth 
in this Agreement and the Program. The Secretary will consider the 
information in the PAP and, where appropriate, make decisions required 
by SMCRA, MLA, NEPA, and other Federal laws.

[[Page 669]]

    Responsibilities and decisions which can be delegated to the State 
under other applicable Federal laws may be specified in working 
agreements between OSMRE, and DOGM, with concurrence of any Federal 
agency involved, and without amendment to this Agreement.
    2. DOGM will be the primary point of contact for applicants 
regarding the review of the PAP for compliance with the Program and 
State law and regulations. On matters concerned exclusively with 
regulations under 43 CFR part 3480, Subparts 3480 through 3847, the 
Bureau of Land Management (BLM) will be the primary contact with the 
applicant. DOGM will send to OSMRE copies of any correspondence with the 
applicant and any information received from the applicant regarding the 
PAP. OSMRE will send to DOGM copies of all OSMRE correspondence with the 
applicant which may have a bearing on the PAP. As a matter of practice, 
OSMRE will not independently initiate contacts with applicants regarding 
completeness or deficiencies of the PAP with respect to matters covered 
by the Program.
    BLM will inform DOGM of its actions and provide DOGM with a copy of 
documentation on all decisions. DOGM will be responsible for informing 
the applicant of all joint State-Federal determinations. Where necessary 
to make the determination to recommend that the Secretary approve the 
mining plan, OSMRE will consult with and obtain the concurrences of the 
BLM, the Federal land management agency and other Federal agencies as 
required.
    The Secretary reserves the right to act independently of DOGM to 
carry out his responsibilities under laws other than SMCRA or provisions 
of SMCRA not covered by the Program, and in instances of disagreement 
over SMCRA and the Federal lands program.
    DOGM will to the extent authorized, consult with the Federal land 
management agency and BLM pursuant to 30 CFR 740.4(c) (2) and (3), 
respectively. DOGM will also be responsible for obtaining the comments 
and determinations of other Federal agencies with jurisdiction or 
responsibility over Federal lands affected by the operations proposed in 
the PAP. DOGM will request all Federal agencies to furnish their 
findings or any requests for additional information to DOGM within 45 
days of the date of receipt of the PAP. OSMRE will assist DOGM in 
obtaining this information, upon request of DOGM.
    3. DOGM will be responsible for approval and release of performance 
bonds under 30 CFR 740.4(c)(4), and for review and approval of 
exploration operations not subject to 43 CFR part 3480, under 30 CFR 
740.4(c)(6).
    DOGM will prepare documentation to comply with the requirements of 
NEPA under 30 CFR 740.4(c)(7); however, OSMRE will retain the 
responsibility for the exceptions in 30 CFR 740.4(c)(7)(i)-(vii).
    OSMRE will assist DOGM in carrying out DOGM's responsibilities by:
    (a) Coordinating resolution of conflicts and difficulties between 
DOGM and other Federal agencies in a timely manner.
    (b) Assisting in scheduling joint meetings, upon request, between 
State and Federal agencies.
    (c) Where OSMRE is assisting DOGM in reviewing the PAP, furnishing 
to DOGM the work product within 50 calendar days of receipt of the 
State's request for such assistance, unless a different time is agreed 
upon by OSMRE and DOGM.
    (d) Exercising its responsibilities in a timely manner, governed to 
the extent possible by the deadlines established in the Program.
    (e) Assuming all responsibility for ensuring compliance with any 
Federal lessee protection board requirement.
    4. Review of the PAP: (a) OSMRE and DOGM will coordinate with each 
other during the review process as needed. DOGM will keep OSMRE informed 
of findings made during the review process which bear on the 
responsibilities of OSMRE or other Federal agencies. OSMRE will ensure 
that any information OSMRE receives which has a bearing on decisions 
regarding the PAP is promptly sent to DOGM.
    (b) DOGM will review the PAP for compliance with the Program and 
State law and regulations.
    (c) OSMRE will review the operation and reclamation plan portion of 
the permit application, and any other appropriate portions of the PAP, 
for compliance with the non-delegable responsibilities of SMCRA and for 
compliance with the requirements of other Federal laws and regulations.
    (d) OSMRE and DOGM will develop a work plan and schedule for PAP 
review and each will identify a person as the project leader. The 
project leaders will serve as the primary points of contact between 
OSMRE and DOGM throughout the review process. Not later than 50 days 
after receipt of the PAP, unless a different time is agreed upon, OSMRE 
will furnish DOGM with its review comments on the PAP and specify any 
requirements for additional data. To the extent practicable, DOGM will 
provide OSMRE all available information that may aid OSMRE in preparing 
any findings.
    (e) DOGM will prepare a State decision package, including written 
findings and supporting documentation, indicating whether the PAP is in 
compliance with the Program. The review and finalization of the State 
decision package will be conducted in accordance with procedures for 
processing PAPs agreed upon by DOGM and OSMRE.
    (f) DOGM may make a decision on approval or disapproval of the 
permit on Federal lands

[[Page 670]]

in accordance with the Program prior to the necessary Secretarial 
decision on the mining plan, provided that DOGM advises the operator in 
the permit that Secretarial approval of the mining plan must be obtained 
before the operator may conduct coal development or mining operations on 
the Federal lease. DOGM will reserve the right to amend or rescind any 
requirements of the permit to conform with any terms or conditions 
imposed by the Secretary in the approval of the mining plan.
    (g) The permit will include, as applicable, terms and conditions 
required by the lease issued pursuant to the MLA and by any other 
applicable Federal laws and regulations, including conditions imposed by 
the Federal land management agency relating to post-mining land use, and 
those of other affected agencies, and will be conditioned on compliance 
with the requirements of the Federal land management agency with 
jurisdiction.
    (h) In the case that VER is determined to exist on Federal lands 
under section 522(e)(3) of SMCRA where the proposed operation will 
adversely affect a unit of the NPS, DOGM will work with the NPS to 
develop mutually agreed upon terms and conditions for incorporation into 
the permit to mitigate environmental impacts as set forth under Article 
X of this agreement.
    (i) After making its decision on the PAP, DOGM will send a notice to 
the applicant, OSMRE, the Federal land management agency, and any agency 
with jurisdiction over the publicly owned park or historic property 
included in the NRHP affected by a decision under section 522(e)(3) of 
SMCRA. A copy of the written findings and the permit will also be 
submitted to OSMRE.
    5. OSMRE will provide technical assistance to DOGM when requested, 
if available resources allow. OSMRE will have access to DOGM files 
concerning operations on Federal lands.
    D. Review Procedures for Permit Revisions, Amendments, or Renewals: 
1. Any permit revision, amendment, or renewal for an operation on 
Federal lands will be reviewed and approved or disapproved by DOGM after 
consultation with OSMRE on whether such revision, amendment, or renewal 
constitutes a mining plan modification. OSMRE will inform DOGM within 30 
days of receiving a copy of a proposed revision, amendment, or renewal, 
whether the permit revision, amendment, or renewal constitutes a mining 
plan modification. Where approval of a mining plan modification is 
required, OSMRE and DOGM will follow the procedures outlined in 
paragraphs C.1. through C.5. of this Article.
    2. OSMRE may establish criteria to determine which permit revisions, 
amendments, and renewals clearly do not constitute mining plan 
modifications.
    3. Permit revisions, amendments, or renewals on Federal lands which 
are determined by OSMRE not to constitute mining plan modifications 
under paragraph D.1. of this Article or that meet the criteria for not 
being mining plan modifications as established under paragraph D.2. of 
this Article will be reviewed and approved following the procedures 
outlined in paragraphs B.1. through B.5. of this Article.

                        Article VII: Inspections

    A. DOGM will conduct inspections on Federal lands in accordance with 
30 CFR 740.4(c)(5) and prepare and file inspection reports in accordance 
with the Program.
    B. DOGM will, subsequent to conducting any inspection pursuant to 30 
CFR 740.4(c)(5), and on a timely basis, file with OSMRE a legible copy 
of the completed State inspection report.
    C. DOGM will be the point of contact and primary inspection 
authority in dealing with the operator concerning operations and 
compliance with the requirements covered by the Agreement, except as 
described hereinafter. Nothing in this Agreement will prevent 
inspections by authorized Federal or State agencies for purposes other 
than those covered by this Agreement. The Department may conduct any 
inspections necessary to comply with 30 CFR parts 842 and 843 and its 
obligations under laws other than SMCRA.
    D. OSMRE will ordinarily give DOGM reasonable notice of its intent 
to conduct an inspection under 30 CFR 842.11 in order to provide State 
inspectors with an opportunity to join in the inspection. When OSMRE is 
responding to a citizen complaint of an imminent danger to the public 
health and safety, or of significant, imminent environmental harm to 
land, air or water resources, pursuant to 30 CFR 842.11(b)(1)(ii)(C), it 
will contact DOGM no less than 24 hours prior to the Federal inspection, 
if practicable, to facilitate a joint Federal/State inspection. All 
citizen complaints which do not involve an imminent danger of 
significant, imminent environmental harm will be referred to DOGM for 
action. The Secretary reserves the right to conduct inspections without 
prior notice to DOGM to carry out his responsibilities under SMCRA.

                        Article VIII: Enforcement

    A. DOGM will have primary enforcement authority under SMCRA 
concerning compliance with the requirements of this Agreement and the 
Program in accordance with 30 CFR 740.4(c)(5). Enforcement authority 
given to the Secretary under other Federal laws and Executive orders 
including, but not limited to, those listed in appendix A (attached) is 
reserved to the Secretary.

[[Page 671]]

    B. During any joint inspection by OSMRE and DOGM, DOGM will have 
primary responsibility for enforcement procedures, including issuance of 
orders of cessation, notices of violation, and assessment of penalties. 
DOGM will inform OSMRE prior to issuance of any decision to suspend or 
revoke a permit on Federal lands.
    C. During any inspection made solely by OSMRE or any joint 
inspection where DOGM and OSMRE fail to agree regarding the propriety of 
any particular enforcement action, OSMRE may take any enforcement action 
necessary to comply with 30 CFR parts 843 and 845. Such enforcement 
action will be based on the standards in the Program, SMCRA, or both, 
and will be taken using the procedures and penalty system contained in 
30 CFR parts 843 and 845.
    D. DOGM and OSMRE will promptly notify each other of all violations 
of applicable laws, regulations, orders, or approved mining permits 
subject to this Agreement, and of all actions taken with respect to such 
violations.
    E. Personnel of DOGM and OSMRE will be mutually available to serve 
as witness in enforcement actions taken by either party.
    F. This Agreement does not affect or limit the Secretary's authority 
to enforce violations of Federal laws other than SMCRA.

                            Article IX: Bonds

    A. DOGM and the Secretary will require each operator who conducts 
operations on Federal lands to submit a single performance bond payable 
to Utah and the United States to cover the operator's responsibilities 
under SMCRA and the Program. Such performance bond will be conditioned 
upon compliance with all requirements of the SMCRA, the Program, State 
rules and regulations, and any other requirements imposed by the 
Department. Such bond will provide that if this Agreement is terminated, 
the portion of the bond covering the Federal lands will be payable only 
to the United States. DOGM will advise OSMRE or annual adjustments to 
the performance bond, pursuant to the Program.
    B. Prior to releasing the operator from any obligation under such 
bond, DOGM will obtain the concurrence of OSMRE. OSMRE concurrence will 
include coordination with other Federal agencies having authority over 
the lands involved.
    C. Performance bonds will be subject to forfeiture with the 
concurrence of OSMRE, in accordance with the procedures and requirements 
of the Program.
    D. Submission of a performance bond does not satisfy the 
requirements for a Federal lease bond required by 43 CFR subpart3474 or 
lessee protection bond required in addition to a performance bond, in 
certain circumstances, by section 715 of SMCRA.

Article X: Designating Land Areas Unsuitable for All or Certain Types of 
Surface Coal Mining and Reclamation Operations and Activities and Valid 
            Existing Rights and Compatibility Determinations

                       A. Unsuitability Petitions.

    1. Authority to designate Federal lands as unsuitable for mining 
pursuant to a petition is reserved to the Secretary.
    2. When either DOGM or OSMRE receives a petition that could impact 
adjacent Federal or non-Federal lands pursuant to section 522(c) of 
SMCRA, the agency receiving the petition will notify the other of 
receipt and the anticipated schedule for reaching a decision, and 
request and fully consider data, information and recommendations of the 
other. OSMRE will coordinate with the Federal land management agency 
with jurisdiction over the petition area, and will solicit comments from 
the agency.

        B. Valid Existing Rights and Compatibility Determinations

    The following actions will be taken when requests for determinations 
of VER pursuant to section 522(e) of SMCRA, or for determinations of 
compatibility pursuant to section 522(e)(2) of SMCRA are received prior 
to or at the time of submission of a PAP that involves surface coal 
mining and reclamation operations and activities:
    1. For Federal lands within the boundaries of any areas specified 
under section 522(e)(1) of SMCRA, OSMRE will determine whether VER 
exists for such areas.
    For non-Federal lands within section 522(e)(1) areas DOGM, with the 
consultation and concurrence of OSMRE, will determine whether operations 
on such lands will or will not affect Federal lands. For such non-
Federal lands affecting Federal lands, OSMRE will make the VER 
determination.
    Under section 522(e)(1), for non-Federal lands within the boundaries 
of the National Park System, DOGM, with the consultation and concurrence 
of OSMRE, will determine whether operations on such lands will or will 
not affect the Federal interest. For such non-Federal lands within the 
boundaries of the National Park System which affect the Federal 
interest, OSMRE will make the VER determination.
    2. For Federal lands within the boundaries of any national forest 
where proposed operations are prohibited or limited by section 522(e)(2) 
of SMCRA and 30 CFR 761.11(b), OSMRE will make the VER determination.
    OSMRE will process requests for determinations of compatibility 
under section 522(e)(2) of SMCRA.
    3. For Federal lands, DOGM, with the consultation and concurrence of 
OSMRE, will determine whether any proposed operation

[[Page 672]]

will adversely affect units of the National Park System with respect to 
the prohibitions or limitations of section 522(e)(3) of SMCRA. For such 
operations adversely affecting units of the National Park System, DOGM, 
with the consultation and concurrence of OSMRE, will make the VER 
determination.
    For Federal lands, DOGM will determine whether any proposed 
operation will adversely affect all publicly owned parks other than 
those covered in the preceding paragraph and, in consultation with the 
State Historic Preservation Officer, places listed in the National 
Register of Historic Places, with respect to the prohibitions or 
limitations of section 522(e)(3) of SMCRA.
    For Federal lands other than those on which the proposed operation 
will adversely affect units of the National Park System, DOGM will make 
the VER determination for operations which are prohibited or limited by 
section 522(e)(3) of SMCRA. In the case that VER is determined to exist 
on Federal lands under section 522(e)(3) of SMCRA where a proposed 
operation will adversely affect a unit of the NPS, DOGM will work with 
the NPS to develop mutually agreed upon terms and conditions for 
incorporation into the permit in order to mitigate environmental 
impacts.
    In the case that VER is determined not to exist under section 
522(e)(3) of SMCRA or 30 CFR 761.11(c), no surface coal mining 
operations and activities will be permitted unless jointly approved by 
DOGM and the Federal, State or local agency with jurisdiction over the 
publicly owned park or historic place.
    4. DOGM will process determinations of VER on Federal lands for all 
areas limited or prohibited by section 522(e) (4) and (5) of SMCRA as 
unsuitable for mining. For operations on Federal lands, DOGM will 
coordinate with any affected agency or agency with jurisdiction over the 
proposed surface coal mining and reclamation operation.

            Article XI: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

           Article XII: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or in part it may be 
reinstated under the provisions of 30 CFR 745.16.

            Article XIII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIV: Changes in State or Federal Standards

    A. The Department or the State may from time to time promulgate new 
or revised performance or reclamation requirements or enforcement and 
administration procedures. Each party will, if it determines it to be 
necessary to keep this Agreement in force, change or revise its 
regulations or request necessary legislative action. Such changes will 
be made under the procedures of 30 CFR part 732 for changes to the 
Program and under the procedures of section 501 of SMCRA for changes to 
the Federal lands program.
    B. DOGM and the Department will provide each other with copies of 
any changes to their respective laws, rules, regulations or standards 
pertaining to the enforcement and administration of this Agreement.

            Article XV: Changes in Personnel and Organization

    Each party to this Agreement will notify the other, when necessary, 
of any changes in personnel, organization and funding, or other changes 
that may affect the implementation of this Agreement to ensure 
coordination of responsibilities and facilitate cooperation.

                   Article XVI: Reservation of Rights

    This Agreement will not be construed as waiving or preventing the 
assertion of any rights in this Agreement that the State or the 
Secretary may have under laws other than SMCRA or their regulations, 
including but not limited to those listed in appendix A.

Dated:__________________________________________________________________

Signed:_________________________________________________________________
                                                        Governor of Utah

Dated:__________________________________________________________________

Signed:_________________________________________________________________
                                               Secretary of the Interior

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations, including 43 CFR part 3480.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations, including 40 CFR part 1500.
    4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations, including 50 CFR part 402.
    5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR part 800.
    6. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.

[[Page 673]]

    7. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    8. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    9. The Reservoir Salvage Act of 1960, amended by the Preservation of 
Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et seq.
    10. Executive Order 11593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    11. Executive Order 11988 (May 24, 1977), for flood plain 
protection.
    12. Executive Order 11990 (May 24, 1977), for wetlands protection.
    13. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
    14. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
    15. The Constitution of the United States.
    16. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 
1201 et seq.
    17. 30 CFR Chapter VII.
    18. The Constitution of the State of Utah.
    19. Utah Code Annotated 40-10-1 et seq.
    20. Utah Code Annotated 40-8-1 et seq.
    21. Utah Coal Mining and Reclamation Permanent Program, Chapters I 
and II, Final Rules of the Board of Oil, Gas and Mining, UMC/SMC 700 et 
seq.

[52 FR 7850, Mar. 13, 1987]



PART 946_VIRGINIA--Table of Contents



Sec.
946.1 Scope.
946.10 State regulatory program approval.
946.11 Conditions of State regulatory program approval.
946.12 State program provisions and amendments not approved.
946.13 State program provisions set aside.
946.15 Approval of Virginia regulatory program amendments.
946.20 Abandoned mine land reclamation plan approval.
946.25 Approval of Virginia abandoned mine land reclamation plan 
          amendments.
946.30 State-Federal Cooperative Agreement.

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



Sec. 946.1  Scope.

    This part contains all rules applicable only within Virginia that 
have been adopted under the Surface Mining Control and Reclamation Act 
of 1977.

[46 FR 61114, Dec. 15, 1981]



Sec. 946.10  State regulatory program approval.

    The Virginia regulatory program, as submitted on March 3, 1980, as 
amended and clarified on June 16, 1980, as resubmitted on August 13, 
1981, and as clarified in a meeting with OSMRE on September 21 and 22, 
1981, and in a letter to the director of the Office of Surface Mining on 
October 15, 1981, is conditionally approved, effective December 15, 
1981. Effective January 1, 1985, the Department of Mines, Minerals and 
Energy replaces the Department of Conservation and Economic Development 
as the regulatory authority in Virginia for all surface coal mining and 
reclamation operations and all exploration operations on non-Federal and 
non-Indian lands. Copies of the approved program as amended are 
available for review at the following locations:
    (a) Virginia Division of Mined Land Reclamation, P.O. Drawer 900, 
Big Stone Gap, Virginia 24219.
    (b) Office of Surface Mining Reclamation and Enforcement, Big Stone 
Gap Field Office, P.O. Drawer 1216, Powell Valley Square Shopping 
Center, room 220, Route 23, Big Stone Gap, Virginia 24219.

[51 FR 42554, Nov. 25, 1986, as amended at 59 FR 17930, Apr. 15, 1994]



Sec. 946.11  Conditions of State regulatory program approval.

    The approval of the Virginia State program is subject to the State 
revising its program to correct the deficiencies listed in this section. 
The program revisions may be made, as appropriate, to the statute, the 
regulations, the program narrative, or the Attorney General's opinion. 
This section indicates, for the general guidance of the State, the 
component of the program to which the Secretary recommends the change be 
made.

[46 FR 61114, Dec. 15, 1981, as amended at 47 FR 31550, July 21, 1982; 
47 FR 55678, Dec. 13, 1982; 48 FR 25186, June 6, 1983; 48 FR 46031, Nov. 
11, 1983; 49 FR 19478, May 8, 1984]

[[Page 674]]



Sec. 946.12  State program provisions and amendments not approved.

    (a) The following provisions are disapproved effective April 22, 
1983: Paragraphs 3.01(a)(1), 3.01(a)(4) and 3.01 (a)(5) of the Virginia 
Coal Surface Mining and Reclamation Regulations for Operations 
Disturbing Two Surface Acres or Less.
    (b) The following provisions of the coal surface mining reclamation 
regulations promulgated pursuant to Chapter 19, Title 45.1 of the Code 
of Virginia (1950), as submitted on November 8, 1985, as hereby 
disapproved:
    (1) The definition of ``affected area'' in section 480-03-19.700.5 
to the extent that it could be interpreted as excluding all public roads 
with more than incidental public use;
    (2) Section 480-03-19.761.11(h), which prohibits mining on certain 
Federal lands, in its entirety; and
    (c)(1) We are not approving the words, ``or the UCP revision current 
at the time of issuance of the letter of credit,'' in the definition of 
``Collateral bond,'' paragraph (d), at 4 VAC 25-130-700.5; and
    (2) We are not approving the words, ``or revision current at the 
time of issuance of the letter of credit'' at 4 VAC 25-130-800.21(c)(1).

[50 FR 32851, Aug. 15, 1985, as amended at 51 FR 42554, Nov. 25, 1986; 
52 FR 26973, July 17, 1987; 66 FR 43483, Aug. 20, 2001]



Sec. 946.13  State program provisions set aside.

    (a) Paragraphs 3.01(a)(1), 3.01(a)(4) and 3.01(a)(5) of the Virginia 
Coal Surface Mining and Reclamation Regulations for Operations 
Disturbing Two Surface Acres or Less are inconsistent with and less 
effective than the Federal provisions for the two-acre exemption and are 
set aside in their entirety under the provisions of section 505(b) of 
the Surface Mining Control and Reclamation Act of 1977.
    (b) [Reserved]

[50 FR 32851, Aug. 15, 1985]



Sec. 946.15  Approval of Virginia regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
January 28, 1982.....................  July 21, 1982..........  Virginia's revised policy statement granting
                                                                 authority to field inspectors to issue
                                                                 cessation orders for imminent danger or harm.
July 9, 1982.........................  August 19, 1982........  VA Code Sec.  33.1-246.1; V816.150, V817.150.
July 8, 1982.........................  September 21, 1982.....  VA Code Sec. Sec.  45.1-270.1 through .7;
                                                                 V808.15, V809, reference changes to remainder
                                                                 of Subchapter VJ.
August 13, 1982......................  December 13, 1982......  VA Code Sec.  45.1-235(C); conditions (a)
                                                                 through (j), (l) through (p), (s).
September 30, 1982...................  January 18, 1983.......  Sec.  V809.
December 20, 1982....................  February 28, 1983......  Sec.  V809.11.
March 22, 1983.......................  April 21, 1983, June 6   VA Code Sec. Sec.  45.1-234, 240 , 249, 251.
                                        and 20, 1983.
July 9, 1982.........................  April 22, 1983.........  Chapter 23 of Title 45.
May 20, 1983.........................  December 27, 1983......  VA Code Sec. Sec.  45.1-270.2 through .4; Part
                                                                 V809.
July 27, 1983........................  March 16, 1984.........  Coal haul road policy.
February 10, 1984....................  May 8, 1984............  Sec.  V786.19(o).
April 11, 1984.......................  August 2, 1984.........  Subchapter VM Part V850--Blaster certification
                                                                 program; Sec. Sec.  V816/817.61(c); Chapter
                                                                 230 of the 1984 Acts of Assembly; and all other
                                                                 items.
June 13, 1984........................  August 31, 1984........  Chapter 590 of the 1984 Acts of Assembly to
                                                                 revise various Sections of Title 45.
February 20, 1985....................  May 8, 1985............  VA Code Sec. Sec.  45.1-244, 369.1.
May 1985.............................  August 15, 1985........  VA Code Sec. Sec.  45.1-364, 364.1.
September 4, 1985....................  November 18, 1985......  V700.5--definitions of ``coal preparation or
                                                                 coal processing,'' ``coal preparation plant''.
November 8, 1985.....................  November 25, 1986......  VR 480-03-19: 700 through 850; techniques for
                                                                 measuring revegetation success; applications
                                                                 for a permit revision.
March 20, 1987.......................  July 17, 1987..........  VR 480-03-19: 784.20(f)(2); 817.121(c)(2).
January 16, 1987.....................  August 17, 1987........  VR 480-03-19.801.13(a)(2), .17(a).

[[Page 675]]

 
June 15, 1987, July 2, 1987..........  December 31, 1987......  VA Code Sec. Sec.  45.1-270.3:1, .4, .5:1,
                                                                 .6B; VR 480-03-19.801.12(a).
September 1, 1987....................  March 7, 1988..........  VR 480-13-19.789.1(e); measurement techniques
                                                                 for determining ground cover on small areas;
                                                                 sampling techniques for measuring productivity
                                                                 of grazing land, pasture land, and crop land;
                                                                 VR 480-03-19: .843.15, .845.17(b), .18(b)(1).
September 10, 1987...................  June 16, 1988..........  VR 480-03-19: 700.5 defining ``abatement plan,''
                                                                 ``actual improvement,'' ``baseline pollution
                                                                 load,'' ``best professional judgment,'' ``best
                                                                 technology,'' ``pollution abatement area;''
                                                                 785.19; 825.
June 30, 1989........................  December 1, 1989.......  VR 480-03-19: 700.11; 764.15, 773.15; 779.19,
                                                                 .20; 780.14, .16; 783.19, .20; 784.20, .21;
                                                                 785.14; 801.17; 816.97; 817.97; 840.11; 846,
                                                                 .2, .12; 846.14, .17, .18.
July 5, 1989.........................  February 2, 1990.......  VA Code Sec. Sec.  45.1-270.2, .3.
April 6, 1988........................  February 5, 1990.......  VR 480-03-19: 700.5; 772.12(b)(8)(iv); 773.12,
                                                                 .15(c)(11), (12); 779.12(b), .24(j); .780.31;
                                                                 783.12(b), .24(j); 784.17; 785.13(b)(2),
                                                                 .14(c)(1), .16(a)(1); 800.52; 816/
                                                                 817.116(b)(3)(v)(C); 842.15(d); 843.12(j),
                                                                 .13(f); revegetation success standard.
August 31, 1990......................  December 7, 1990.......  VA Code Sec.  45.1-270.4:1.
September 12, 1990...................  December 26, 1990......  VR 480-03-19: 784.20; 817.121.
June 29, 1990........................  January 4, 1991........  VR 480-03-19: 700.5; 773.15, .17, .20, .21;
                                                                 778.13, .14; 843.11, .13.
April 5, 1991, May 1, 1991...........  August 5, 1991.........  VR 480-03-19: 801.11(a), .12(a), (b), (g),
                                                                 .14(a) through (d), .15(a); VA Code Sec. Sec.
                                                                  45.1-261.1, 270.3, .3:1, .4, .4:1.
October 1, 1990......................  July 7, 1992...........  VR 480-03-19: 700.5 definitions--``Road,''
                                                                 ``Support Facilities,'' .11(a), (4), (d);
                                                                 701.11(a) through (c); 702.5 defining Exemption
                                                                 for Coal Extraction Incidental to the
                                                                 Extraction of Other Minerals, .11 through .18;
                                                                 772.11(a), (b)(3), .12(a), (b)(3), (d), .14(a),
                                                                 (b); 773.11(a); 780.25(c), .37(a) through (e),
                                                                 .38; 784.16(c), .24(a) through (e), .30;
                                                                 785.17(e)(5), .21(a); 800.60(b); 815.2, .15(b);
                                                                 816.46(c)(2), .49(a)(1), (3)(i), (5), (8), (9),
                                                                 (b)(7), (c)(2), .84(b)(2), (f), .116(b)(3)(i),
                                                                 (ii), (iv)(C), (c)(2), .150(a) through .150(e),
                                                                 (f)(1), .151(a)(1), (2), (c), (d)(1), (2), (4),
                                                                 (5), (6); 817.46(c)(2), .49(a)(1), (3)(i), (5),
                                                                 (8), (9), (b)(7), (c)(2), .84(b)(2), (f),
                                                                 .116(b)(3)(i), (ii), (iv)(C), (v)(C), (c)(2),
                                                                 .150(a) through (e), (f)(1), .151(a), (c),
                                                                 (d)(1), (2), (4), (5), (6); 823.11(b),
                                                                 .12(c)(2), .14(d); 827.1; 843.11(a)(2).
May 6, 1993..........................  September 24, 1993.....  VA Code Sec. Sec.  45.1-243, -258.
October 22, 1993.....................  September 27, 1994.....  VR 480-03-19.816/817: .49(a)(3)(ii),
                                                                 .116(b)(3)(v)(A), (c)(3), .151(b), .152.
October 31, 1994.....................  August 8, 1995.........  VR 480-03-19.816/817.102(e)(1), (2).
October 13, 1995.....................  May 29, 1996...........  VR 480-03-19.816.102(e), .817.102(e).
April 17, 1996.......................  August 19, 1996........  VA Code Sec.  45.1-243B; VR 480-03-
                                                                 19.784.14(g); 817.41(i)(3), (i)(3)(i), (ii).
May 28, 1996.........................  September 4, 1996......  VA 480-03-19.700.5 concerning definitions of
                                                                 ``Lands eligible for remining,''
                                                                 ``Unanticipated event or condition;''
                                                                 773.15(b)(4), (c)(14); 785.25; 816/
                                                                 817.116(c)(2)(i), (ii).
May 21, 1996.........................  September 17, 1997, and  VA Code Sec. Sec.  480-03-19.700.5; 784.14,
                                        November 12, 1997.       20; 817.41, 121.
December 1, 1997.....................  June 24, 1998..........  VA Code Sections 701.5; 779.22 [deletion],
                                                                 .25(k) [deletion]; 780.23, .25(a),
                                                                 (a)(2)(a)(3), (b), (c)(3), (f), 35(b);
                                                                 783.25(k) [deletion]; 784.15, .16(a), (a)(2),
                                                                 (a)(3), (b), (c)(3), (f), .23(c); 800.40(a)(3);
                                                                 816.46(a)(2), (b)(3), (b)(5), (c)(2),
                                                                 .49(a)(1), (a)(4)(i) & (ii), (5), (6), (9),
                                                                 (11), (c)(2), .74(a) through (g), .81(a),
                                                                 (c)(3) [deletion], .89(d) [deletion], .104,
                                                                 .105; 817.46(a)(2), (b)(3), (b)(5), (c)(2)
                                                                 .49(a)(1), (a)(4)(i) & (ii), (5), (6), (9),
                                                                 (11), (c)(2), .74(a) through (g), .81(a),
                                                                 (c)(3) [deletion], .89(d) [deletion];
                                                                 840.11(f)(2) & (g)(4), (h); 843.14(a)(2);
                                                                 845.17(b) through (b)(2)(ii), .18(a), (b)
                                                                 through (b)(3)(ii), (d)(1) & (2), .19(a) and
                                                                 846.17(b)(3) [deletion] and (c).
July 31, 1997........................  May 3, 1999............  Code of Virginia at Sec.  45.1-241(C)
                                                                 concerning letter of credit.
November 17, 1998....................  December 13, 1999......  Policy clarification for implementing 4 VAC 25-
                                                                 130-774.13(d).
August 2, 1999.......................  December 27, 1999......  Statute: 45.1-235 C of the Code of Virginia.
                                                                 Regulations: 4 VAC 25-130-700.5; 795.1;
                                                                 795.6(a)(2); 795.7(e)(2) [deleted], and (e)(5)
                                                                 [deleted]; 795.8(a) and (b); 795.9(a), (b)(1)
                                                                 through (b)(6); 795.10(a)(5), (b), (c)
                                                                 [deleted] and (d) [deleted]; 795.11(b);
                                                                 795.12(a), (a)(2), (a)(3), (b) [deleted], and
                                                                 (c) [deleted].
November 24, 1998....................  February 7, 2000.......  Policy clarification for implementing 4 VAC 25-
                                                                 130-816/817.76.
June 27, 2000........................  November 2, 2000.......  4 VAC 25-130-784.20(a)(3) amended and suspended
                                                                 in part; 817.121(c)(4)(i) through (iv)
                                                                 suspended and deleted.
September 22, 2000...................  August 20, 2001........  4 VAC 25-130-700.5 (partial approval);
                                                                 800.21(a), (c)(1) (partial approval), (2) and
                                                                 (3), and (d).
May 16, 2003.........................  September 10, 2003.....  4 VAC 25-130-777.17.
July 20, 2004........................  April 14, 2005.........  4 VAC 25-130-801.17 and 801.18.
May 9, 2005, and as amended on         January 10, 2006.......  4 VAC 25-130-700.12(e); 773.21(c); 775.11(b)(1)
 November 14, 2005, and December 1,                              and (d); 775.13(c); 784.20(a)(3); 800.51(c)(1);
 2005.                                                           800.51(e); 816.11(a)(4) and (a)(5);
                                                                 816.64(a)(4); 816.105(a) and (b); 817.11(a)(4);
                                                                 817.64(d); 817.121(c)(4); 842.15(d); 843.12(j);
                                                                 843.13(b); 843.13(e); 843.15(c); 843.16(e);
                                                                 845.13(c)(1), (d), (e)(1), and (f); 845.15(a);
                                                                 845.18(b)(1); 845.19(c); 845.19(d); and
                                                                 846.14(b).
February 13, 2007....................  July 5, 2007...........  4 VAC 25-130-785.25(c)(deleted); 4 VAC 25-130-
                                                                 816.116 and 817.116(c)(2)(ii).
February 13, 2007....................  April 23, 2008.........  4 VAC 25-130-816.22(d)(1) and 817.22(d)(1).
                                       .......................  4 VAC 25-130-816.43(a) and 817.43(a).

[[Page 676]]

 
                                       .......................  4 VAC 25-130-816.116(b) and 817.116(b).
March 12, 2007.......................  October 18, 2007.......  4 VAC 25-130-842.15(d), Review of decision not
                                                                 to inspect or enforce.
----------------------------------------------------------------------------------------------------------------


[62 FR 9956, Mar. 5, 1997, as amended at 62 FR 60660, Nov. 12, 1997; 63 
FR 34286, June 24, 1998; 64 FR 23544, May 3, 1999; 64 FR 69402, Dec. 13, 
1999; 64 FR 72280, Dec. 27, 1999; 65 FR 5784, Feb. 7, 2000; 65 FR 65782, 
Nov. 2, 2000; 66 FR 43483, Aug. 20, 2001; 68 FR 53294, Sept. 10, 2003; 
70 FR 19702, Apr. 14, 2005; 71 FR 1494, Jan. 10, 2006; 72 FR 36598, July 
5, 2007; 72 FR 59012, Oct. 18, 2007; 73 FR 21823, Apr. 23, 2008]



Sec. 946.20  Abandoned mine land reclamation plan approval.

    Virginia Abandoned Mine Land Reclamation Plan as submitted on 
September 22, 1980, is approved effective December 15, 1981. Copies of 
the approved plan are available for review at the following locations:
    (a) Virginia Division of Mined Land Reclamation, P.O. Drawer 900, 
Big Stone Gap, Virginia 24219.
    (b) Office of Surface Mining Reclamation and Enforcement, Big Stone 
Gap Field Office, P.O. Drawer 1216, Powell Valley Square Shopping 
Center, room 220, Route 23, Big Stone Gap, Virginia 24219.

[51 FR 42555, Nov. 25, 1986, as amended at 59 FR 17930, Apr. 15, 1994]



Sec. 946.25  Approval of Virginia abandoned mine land reclamation plan 

amendments.

    (a) The following is a list of the dates amendments were submitted 
to OSM, the dates when the Director's decision approving all, or 
portions of these amendments, were published in the Federal Register and 
the State citations or a brief description of each amendment. The 
amendments in this table are listed in order of the date of final 
publication in the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
November 8, 1985.....................  November 25, 1986......  VR 480-03-19.874 through 882.
February 3, 1987.....................  November 13, 1987......  VR 480-03-19.884.13(c) (2), (5), (6), (7),
                                                                 (d)(1), (2); Establish emergency program.
Feb. 29, 1996........................  July 3, 1997...........  Revisions to the Virginia State Reclamation Plan
                                                                 corresponding to 30 CFR 884.13(a), (b), (c)(1),
                                                                 (c)(2), (c)(3), (c)(4), (c)(5), (c)(6), (c)(7),
                                                                 (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2),
                                                                 (e)(3), (f)(1), (f)(2), and (f)(3).
September 19, 1997...................  February 5, 1998.......  Revisions to the Virginia State Reclamation Plan
                                                                 corresponding to 30 CFR 884.13(c)(2)--Ranking
                                                                 and Selection: Set Aside Funds; and the AML
                                                                 Water Project Evaluation form.
September 10, 1999...................  January 7, 2000........  Revisions to the Virginia State Reclamation Plan
                                                                 corresponding to 30 CFR 884.13(c)(2)--Ranking
                                                                 and Selection: Reclamation Projects Receiving
                                                                 Less Than 50% Government Funding.
----------------------------------------------------------------------------------------------------------------

    (b) You may receive a copy from:
    (1) Virginia Division of Mined Land Reclamation, P.O. Drawer 900, 
Big Stone Gap, Virginia 24219, or
    (2) Office of Surface Mining Reclamation and Enforcement, Big Stone 
Gap Field Office, Powell Valley Square Shopping Center, 1941 Neeley 
Road, Suite 201, Compartment 116, Big Stone Gap, Virginia 24219.

[62 FR 9957, Mar. 5, 1997, as amended at 62 FR 35968, July 3, 1997; 63 
FR 5891, Feb. 5, 1998; 65 FR 1065, Jan. 7, 2000]



Sec. 946.30  State-Federal Cooperative Agreement.

    This is a Cooperative Agreement (Agreement) between the Commonwealth 
of Virginia (State) acting by and through the Governor, and the United 
States Department of the Interior (Department), acting by and through 
the Secretary of the Interior (Secretary).


[[Page 677]]



 Article I: Introduction, Purpose, and Responsible Administrative Agency

    A. Authority: This Agreement is authorized by section 523(c) of the 
Surface Mining Control and Reclamation Act (SMCRA or the Act), 30 U.S.C. 
1273(c), which provides that any State with a permanent regulatory 
program approved under 30 U.S.C. 1253 may enter into an agreement with 
the Secretary to assume the responsibilities of regulating surface coal 
mining and reclamation operations on Federal lands within that State. 
This Agreement provides for such regulation within the Commonwealth of 
Virginia (State) consistent with SMCRA, the Virginia State Program, and 
the Federal Lands Program (30 CFR Chapter VII, Subchapter D).
    B. Purpose: The purpose of this Agreement is to (1) foster State-
Federal cooperation in the regulation of coal mining including coal 
exploration on Federal lands containing non-Federal coal; (2) minimize 
intergovernmental overlap and duplication; and (3) provide uniform and 
effective application of the Virginia State Program (State Program) on 
all Federal lands except those containing leased Federal coal. This 
agreement does not apply on Indian lands.
    C. Responsible Administrative Agencies: The Division of Mined Land 
Reclamation (DMLR) of the Department of Mines, Minerals and Energy is 
responsible for administering the Agreement on behalf of the Governor. 
The Office of Surface Mining Reclamation and Enforcement (OSMRE) is 
responsible for administering this Agreement on behalf of the Secretary. 
The Federal lands in Virginia covered by this Agreement are 
predominantly administered by the U.S. Department of Agriculture, Forest 
Service, and include in part the Jefferson National Forest and the 
George Washington National Forest. It is understood by all parties that 
the Forest Service or the applicable Federal agency will continue to 
regulate mining operations on lands under its jurisdiction pursuant to 
the laws, regulations, agreements, and restrictions governing those 
lands. These requirements are in addition to the requirements discussed 
in this Agreement.

                       Article II: Effective Date

    The Agreement shall take effect May 7, 1987. This Agreement shall 
remain in effect until terminated as provided in Article XI.

                        Article III: Definitions

    The terms and phrases used in this Agreement which are defined in 
the Act, 30 CFR Chapter VII, and the approved State Program shall be 
given the meanings set forth in said definitions. Where there is a 
conflict among the above referenced State and Federal definitions, the 
definitions used in the approved State Program will apply unless 
prohibited by Federal law.
    The term ``Federal lands covered by the agreement'' means all 
Federal lands in Virginia except those lands containing leased Federal 
coal or those consisting of Federal surface over unleased Federal coal.

                        Article IV: Applicability

    The laws, rules, terms, and conditions of the State Program are 
applicable to all Federal lands in Virginia. The State is authorized to 
conduct regulatory activities on all Federal lands with cooperative 
agreement.

            Article V: Requirements for Cooperative Agreement

    The Governor and the Secretary affirm that they will comply with all 
of the provisions of this Agreement and will continue to meet all the 
conditions and requirements specified in the Agreement.
    A. Authority of State Agency: DMLR has and shall continue to have 
authority under State law to carry out this Agreement.
    B. Funds: Upon application by the DMLR and subject to the 
availability of appropriations, the Department shall provide the State 
with the funds to defray the costs associated with carrying out 
responsibilities under this Agreement as provided by section 705(c) of 
the SMORA and 30 CFR part 735. If sufficient funds have not been 
appropriated to OSMRE, OSMRE and DMLR shall meet promptly to decide on 
measures that will insure that mining operations are regulated in 
accordance with the State Program. If agreement cannot be reached, then 
either party may terminate the Agreement in accordance with Article XI.
    Funds provided to the State shall be adjusted in accordance with the 
Office of Management and Budget Circular A-102, Attachment E.
    C. Reports and Records: DMLR shall make annual reports to OSMRE 
pursuant to 30 CFR 745.12(d) on the results of the State's 
implementation and administration of this cooperative agreement. DMLR 
and OSMRE shall exchange, upon request, information developed under this 
Agreement except where prohibited by Federal law. OSMRE shall provide 
DMLR with a copy of any final evaluation report concerning State 
administration and enforcement of this Agreement.
    D. Personnel: DMLR shall provide the necessary personnel to fully 
implement this Agreement in accordance with the provisions of the 
Federal and State Acts and the State Program.
    E. Equipment and Laboratories: DMLR shall have access to equipment, 
laboratories, and facilities necessary to carry out inspections, 
investigations, studies, tests, and analyses necessary to implement this 
Agreement.
    F. Permit Application Fees: The amount of the fee accompanying an 
application for a permit shall be determined in accordance

[[Page 678]]

with the Virginia Coal Surface Mining Control and Reclamation Act of 
1979 and 19 CV 45.1-235.(E). All permit fees, including fees for 
permits, permit revisions, renewals, transfers, sales or assignments, 
application fees, and civil penalties collected from operations on 
Federal lands covered by this agreement shall be retained by the State 
and deposited with the State Treasurer. The financial status report 
submitted pursuant to 30 CFR 735.26 shall include a report of the amount 
of the permit application and other fees collected and attributable to 
Federal lands during the prior Federal fiscal year. This amount shall be 
disposed of in accordance with Federal regulations and OMB Circular No. 
A-102 Attachment E.

           Article VI: Review of Permit Application Package(s)

    A. Permit Application Package: DMLR shall require an operator 
proposing to conduct surface coal mining and reclamation operations on 
Federal lands covered by this Agreement to submit the appropriate permit 
application package (PAP) for a permit, permit revision, or permit 
renewal in an appropriate number of copies to DMLR. DMLR will furnish 
OSMRE a copy if OSMRE so requests. The permit application package shall 
be in the form required by DMLR and include any supplemental information 
required by the Federal land management agency. The PAP shall include 
the information required by, or necessary for, DMLR to make a 
determination of compliance with the State program and, under 30 CFR 
740.4(c)(2), with any conditions or special requirements imposed by the 
Federal land management agency.
    As requested, OSMRE will assist DMLR in identifying Federal agencies 
which may be affected by the proposed mining operation.
    B. Review Procedures: 1. DMLR shall assume primary responsibility 
for the analysis, review, and approval or disapproval of PAPs for a 
permit, permit revision, or permit renewal for operations on Federal 
lands covered by this agreement. DMLR shall also assume primary 
responsibility for the review and analysis of applications for transfer, 
assignment or sale of permit rights required by 30 CFR 740.13 for 
surface coal mining operations on Federal lands covered by this 
agreement. DMLR shall be the primary point of contact for operators 
regarding PAPs and applications for the transfer, sale, or assignment of 
permit rights and will be responsibile for informing the applicant of 
all joint State-Federal or Federal determinations.
    2. Upon receipt of PAP that involves surface coal mining and 
reclamation operations on lands covered by this Agreement, DMLR shall 
(a) transmit a copy of the complete PAP to the Federal land management 
agency with a request for review pursuant to 30 CFR 740.13(c)(4); (b) 
provide OSMRE with information necessary to allow OSMRE to determine 
whether or not a proposed surface coal mining and reclamation operation 
is prohibited or limited by the requirements of Section 522(e) of SMORA 
(30 U.S.C. 1272(e)) and 30 CFR part 761 and part 762; (c) determine 
whether leased Federal coal or Federal surface over unleased Federal 
coal is involved and immediately inform OSMRE in these situations; and 
(d) obtain, in a timely manner, the views and determinations of any 
other Federal agencies with jurisdiction or responsibility over Federal 
lands affected by a PAP in Virginia. These consultation comments shall 
be forwarded to OSMRE to be considered in any compatibility or valid 
existing rights determination;
    3. OSMRE will provide technical assistance when requested, if 
available resources allow, and will process requests for determinations 
of compatibility and valid existing rights under 30 CFR part 761 and 
part 762. OSMRE will be responsible for ensuring that any information 
OSMRE receives from an applicant is promptly sent to DMLR. OSMRE shall 
have access to DMLR files concerning mines on Federal lands. The 
Secretary reserves the right to act independently of DMLR to carry out 
his responsibilities under laws other than SMORA. A copy of all 
correspondence with the applicant that may have a bearing on decisions 
regarding the PAP shall be sent to the State.
    4. DMLR shall prepare the required technical analysis and written 
findings on the PAP. If requested by the Federal land management agency, 
a draft of these documents shall be sent to it for review and comment.
    5. Any permit including permit revisions, renewals, transfers, 
sales, or assignments approved or issued by DMLR shall incorporate any 
terms or conditions imposed by OSMRE or the Federal land management 
agency, including conditions relating to post mining land use. After 
DMLR reaches a decision on a PAP, it shall send a notice to the 
applicant, the Federal land management agency, and OSMRE with a 
statement of all findings and conclusions on which the decision is 
based.

                        Article VII: Inspections

    A. DMLR Authority: DMLR shall be the point of contact and primary 
inspection authority in dealing with the operator concerning operations 
on lands covered by this Agreement, except as described in this 
Agreement and the Secretary's regulations. DMLR must conduct inspections 
on Federal lands covered by this agreement and shall, within 30 days of 
conducting an inspection on Federal lands, prepare and file with OSMRE a 
legible copy of the State's completed inspection report. Nothing in this 
Agreement shall prevent inspections by authorized Federal or State 
agencies.

[[Page 679]]

    B. DOI Authority: The Secretary reserves the right to conduct 
inspections without prior notice of DMLR to carry out his 
responsibilities under SMORA. For the purposes of evaluating the manner 
in which this Agreement is being carried out and to insure that 
performance and reclamation standards are being met, OSMRE may 
periodically conduct inspections of surface coal mining and reclamation 
operations on Federal lands. OSMRE will attempt to give DMLR notice of 
its intent to conduct inspections and encourage joint inspections. 
However, pursuant to 30 CFR part 842 or 30 CFR part 877, OSMRE may 
conduct an inspection without the State when responding to information 
that there exists any condition, practice, or violation which 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. If an inspection is 
make without DMLR inspectors, OSMRE shall provide DMLR with a copy of 
the inspection report within 15 days after inspection.

                        Article VIII: Enforcement

    A. DMLR Enforcement: DMLR shall have primary enforcement authority 
on Federal lands covered by this Agreement in accordance with the State 
Program and this Agreement, and DMLR shall take appropriate enforcement 
action whenever necessary, including issuance of orders of cessation and 
notices of violation.
    DMLR shall promptly notify the Federal land management agency of all 
violations of applicable laws, regulations, orders, and approved permits 
subject to this Agreement and of all actions taken with respect to such 
violations.
    B. Secretary's Authority: (1) This Agreement does not affect or 
limit the Secretary's authority to enforce provisions of laws other than 
the SMORA. (2) During an inspection made solely by OSMRE or any joint 
inspection where DMLR and OSMRE fail to agree regarding the propriety of 
any particular enforcement action, OSMRE may take any enforcement action 
necessary to comply with 30 CFR parts 843 and 845 or with SMORA. Such 
enforcement action shall be based on the substantive standards included 
in the approved State Program and shall be taken using the procedures 
and penalty system contained in 30 CFR parts 843 and 845. (3) Nothing in 
this agreement shall preclude the Secretary from performing his 
responsibilities in Save Our Cumberland Mountains v. Hodel, No. 81-2238 
(D.D.C.).
    C. Witness Availability: Personnel of the State and Interior shall 
be mutually available to serve as witnesses in enforcement actions taken 
by either party.

                            Article IX: Bonds

    A. DMLR shall require all operators on Federal lands covered by this 
Agreement to submit a performance bond, payable to both the United 
States and Virginia. The performance bond shall be of sufficient amount 
to comply with the bonding requirements of both SMORA and the State 
Program. Such bond shall provide that if this Cooperative Agreement is 
terminated, (1) the bond will revert to being payable only to the United 
States to the extent that Federal lands are involved, and (2) the bond 
will be delivered by DMLR to OSMRE if only Federal lands are covered by 
the bond. The DMLR shall also advise OSMRE of adjustment to the 
performance bond, pursuant to the Program.
    B. Release of the performance bond shall be conditioned upon 
compliance with all applicable requirements. Prior to releasing the 
operator from any obligation under such bond, the DMLR shall obtain the 
concurrence of the Federal land management agency. Such bond shall be 
subject to forfeiture, with the concurrence of OSMRE, in accordance with 
the procedures and requirements of the State Program

                      Article X: Filing of Appeals

    Orders and decisions issued by DMLR in accordance with the State 
Program that are appealable shall be appealed to the Commonwealth of 
Virginia in accordance with the State Program. Orders and decisions 
issued by the Department that are appealable shall be appealed to the 
Department of the Interior's Office of Hearings and Appeals.

            Article XI: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

           Article XII: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or part, it may be 
reinstated under the provisions of 30 CFR 745.16.

            Article XIII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIV: Changes in State or Federal Standards

    A. Notification of Changes: The Secretary or the State may from time 
to time promulgate new Federal or State regulations, including new or 
revised permitting or performance standards, or administrative and 
enforcement procedures. OSMRE and DMLR shall immediately inform each 
other of any final

[[Page 680]]

changes in their respective laws or regulations as provided in 30 CFR 
part 732. Each party shall, if it is determined to be necessary to keep 
this Agreement in force, change or revise its regulations and request 
necessary legislative action. Such changes shall be made under the 
procedures of 30 CFR part 732 for changes to the State Program and 
section 501 of the SMORA for changes to the Federal lands program.
    B. Copies of Changes: The State and OSMRE shall provide each other 
with copies of any changes to their respective laws, rules, regulations, 
and standards pertaining to the administration and enforcement of this 
Agreement.

            Article XV: Changes in Personnel and Organization

    DMLR and the Secretary shall, consistent with 30 CFR part 745, 
advise each other of changes in the organization, structure, functions, 
duties, and funds of the offices, departments, divisions, and persons 
within their organizations which could affect administration and 
enforcement of this Agreement. Each shall promptly advise the other in 
writing of changes in key personnel, including the head of department or 
division, or changes in the functions or duties of persons occupying the 
principal offices within the structure of the program. DMLR and OSMRE 
shall advise each other in writing of changes in the location of 
offices, addresses, telephone numbers, and changes in the names, 
location, and telephone numbers of their respective mine inspectors and 
the area within the State for which such inspectors are responsible. 
This provision does not apply to Department of the Interior personnel 
performing activities under Save Our Cumberland Mountains v. Hodel 
referenced in Article VIII of this Agreement.

                   Article XVI: Reservation of Rights

    In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that have 
not been expressly addressed in this Agreement that the State or the 
Secretary may have under other laws or regulations, including but not 
limited to those listed in appendix A.

    Approved:

    Dated: March 18, 1987.

    Signed:
                                                      Jerold L. Baliles,
                                                   Governor of Virginia.
    Dated: January 29, 1987.

    Signed:
                                                      Donald Paul Hodel,
                                              Secretary of the Interior.

(Reporting and recordkeeping requirements approved by the Office of 
Management and Budget under control numbers 1029-0013, 1029-0026, and 
1029-0051)

                               Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations including 43 CFR parts 3480-3487.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations, including 40 CFR part 1500.
    4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations, including 50 CFR part 402.
    5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR part 800.
    6. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    7. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    8. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    9. The Reservoir Salvage Act of 1960, amended by the Preservation of 
Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et seq.
    10. Executive Order 1593 (May 13, 1971), Cultural Resources 
Inventories on Federal Lands.
    11. Executive Order 11988 (May 24, 1977), for flood plain 
protection. Executive Order 11990 (May 24, 1977), for wetlands 
protection.
    12. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
    13. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 
470aa et seq.
    14. The Constitution of the United States.
    15. The Constitution of the State and State Law.

[52 FR 11049, Apr. 7, 1987]



PART 947_WASHINGTON--Table of Contents



Sec.
947.700 Washington Federal program.
947.701 General.
947.702 Exemption for coal extraction incidental to the extraction of 
          other minerals.
947.707 Exemption for coal extraction incident to government-financed 
          highway or other construction.

[[Page 681]]

947.761 Areas designated unsuitable for surface coal mining by act of 
          Congress.
947.762 Criteria for designating areas as unsuitable for surface coal 
          mining operations.
947.764 Process for designating areas unsuitable for surface coal mining 
          operations.
947.772 Requirements for coal exploration.
947.773 Requirements for permits and permit processing.
947.774 Revision; renewal; and transfer, assignment, or sale of permit 
          rights.
947.775 Administrative and judicial review of decisions.
947.777 General content requirements for permit applications.
947.778 Permit applications--minimum requirements for legal, financial, 
          compliance, and related information.
947.779 Surface mining permit applications--minimum requirements for 
          information on environmental resources.
947.780 Surface mining permit applications--minimum requirements for 
          reclamation and operation plan.
947.783 Underground mining permit applications--minimum requirements for 
          information on environmental resources.
947.784 Underground mining permit applications--minimum requirements for 
          reclamation and operation plan.
947.785 Requirements for permits for special categories of mining.
947.795 Small operator assistance.
947.800 Requirements for bonding of surface coal mining and reclamation 
          operations.
947.815 Performance standards--coal exploration.
947.816 Performance standards--surface mining activities.
947.817 Performance standards--underground mining activities.
947.819 Special performance standards--auger mining.
947.822 Special performance standards--operations on alluvial valley 
          floors.
947.823 Special performance standards--operations on prime farmland.
947.824 Special performance standards--mountaintop removal.
947.827 Special performance standards--coal processing plants and 
          support facilities not located at or near the minesite or not 
          within the permit area for a mine.
947.828 Special performance standards--in situ processing.
947.842 Federal inspections.
947.843 Federal enforcement.
947.845 Civil penalties.
947.846 Individual civil penalties.
947.955 Certification of blasters.

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

    Source: 48 FR 7883, Feb. 24, 1983, unless otherwise noted.



Sec. 947.700  Washington Federal program.

    (a) This part contains all rules that are applicable to surface coal 
mining operations in Washington which have been adopted under the 
Surface Mining Control and Reclamation Act of 1977.
    (b) Most of the rules in this part cross-reference pertinent parts 
of the permanent program regulations in this chapter. The full text of a 
rule is in the permanent program rule cited under the relevant section 
of the Washington Federal program.
    (c) The rules in this part apply to all surface coal mining 
operations in Washington conducted on non-Federal and non-Indian lands. 
The rules in Subchapter D of this chapter apply to operations on Federal 
lands in Washington.
    (d) The information collection requirements contained in this part 
do not require approval by the Office of Management and Budget under 44 
U.S.C. 3507 because there are fewer than ten respondents annually.
    (e) The following provisions of Washington laws generally provide 
for more stringent environmental control and regulation of some aspects 
of surface coal mining operations than do the provisions of the Surface 
Mining Control and Reclamation Act and the regulations in this chapter. 
Therefore, pursuant to section 505(b) of the Act, they shall not 
generally be construed to be inconsistent with the Act, unless in a 
particular instance the rules in this Chapter are found by OSM to 
establish more stringent environmental controls:
    (1) Washington Clean Air Act, RCW 70.94.
    (2) Washington Food Fish and Shell Fish Laws pertaining to the 
Department of Fisheries on operation in streams, RCW 75.
    (3) Washington Hydraulic Projects Approval Law, RCW 75.20.100.
    (4) Washington Forest Practices Act, RCW 76.09.
    (5) Washington Water Code, RCW 90.03.
    (6) Washington Water Pollution Control Act, RCW 90.48.
    (7) Washington Minimum Water Flows and Levels Act, RCW 90.22.
    (8) Washington Shoreline Management Act, RCW 90.58.

[[Page 682]]

    (9) Washington Pesticide Control Act, RCW 15.58.
    (f) The following are the Washington law and regulations that 
generally interfere with the achievement of the purposes and 
requirements of the Act and are, in accordance with section 504(g) of 
the Act, preempted and superseded. Other Washington laws may in an 
individual situation interfere with the purposes and achievements of the 
Act and may be preempted and superseded with respect to the performance 
standards of Sec. Sec. 947.815 through 947.828 as they affect a 
particular coal exploration or surface mining operation by publication 
of a notice to that effect in the Federal Register.
    (1) The Washington Surface Mining Act of 1971, Revised Code of 
Washington (RCW) 78.44, as related to surface coal mining, except to the 
extent that it regulates surface coal mining operations which affect two 
acres or less or which otherwise are not regulated by the Surface Mining 
Control and Reclamation Act.
    (2) Surface Mined Land Reclamation regulations, Washington 
Administrative Code (WAC) 332-18, as they apply to surface coal mining, 
except to the extent that such regulations apply to surface coal mining 
operations which affect two acres or less or which otherwise are not 
regulated by the Surface Mining Control and Reclamation Act.
    (g) The Secretary may grant a limited variance from the performance 
standards of Sec. Sec. 947.815 through 947.828 of this part if the 
applicant for coal exploration approval or a surface coal mining 
reclamation permit submitted pursuant to Sec. Sec. 947.772 through 
947.785 of this part demonstrates in the application:
    (1) That such a variance is necessary because of the nature of the 
terrain, climate, biological, chemical, or other relevant physical 
conditions in the area of the mine; and
    (2) If applicable, that the proposed variance is no less effective 
than the environmental protection requirements of the regulations in 
this program and is consistent with the Act.

[48 FR 7883, Feb. 24, 1983, as amended at 52 FR 13815, Apr. 24, 1987]



Sec. 947.701  General.

    (a) Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15, and part 
701 of this chapter shall apply to surface coal mining operations in 
Washington.
    (b) The following modified definitions shall be applicable under 
Sec. 701.5 of this chapter:
    (1) Arid and semiarid area means, in the context of alluvial valley 
floors, an area of the interior western United States, west of the 100th 
meridian west longitude, experiencing water deficits, where water use by 
native vegetation equals or exceeds that supplied by precipitation. All 
coalfields located in North Dakota west of the 100th meridian west 
longitude, all coalfields in Montana, Wyoming, Utah, Colorado, New 
Mexico, Idaho, Nevada, and Arizona, the Eagle Pass field in Texas, and 
the Stone Canyon and the Ione fields in California are in arid and 
semiarid areas, except that all coalfields located in the State of 
Washington west of the crest of the Cascade Mountain Range are not in 
arid or semiarid areas.
    (2) Forestry (Forest Land). Includes land used or managed for the 
long-term production of wood, wood fiber, or wood derived products. All 
land which is capable of supporting a merchantable stand of timber and 
is not being actively used in a manner or for a use which is 
incompatible with timber growing is also included. Land used for 
facilities in support of forest harvest and management operations which 
is adjacent to or an integral part of these operations is also included.
    (c) Records required by Sec. 701.14 of this chapter to be made 
available locally to the public shall be retained at the county 
recorder's office of the county in which an operation is located, and at 
the nearest OSM Field Office.

[48 FR 7883, Feb. 24, 1983, as amended at 48 FR 22292, May 18, 1983]



Sec. 947.702  Exemption for coal extraction incidental to the extraction of 

other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, shall apply to any person who 
conducts coal extraction incidental to the extraction of

[[Page 683]]

other minerals for purposes of commercial use or sale.

[54 FR 52123, Dec. 20, 1989]



Sec. 947.707  Exemption for coal extraction incident to government-financed 

highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, shall apply to 
surface coal mining and reclamation operations.



Sec. 947.761  Areas designated unsuitable for surface coal mining by act of 

Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, shall 
apply to surface coal mining and reclamation operations.



Sec. 947.762  Criteria for designating areas as unsuitable for surface coal 

mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, shall apply to surface coal mining 
and reclamation operations.



Sec. 947.764  Process for designating areas unsuitable for surface coal mining 

operations.

    (a) Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to 
petitioning, initial processing, hearing requirements, decisions, data 
base and inventory systems, public information, and regulatory 
responsibilities shall apply to surface coal mining and reclamation 
operations.
    (b) The Secretary shall notify the Washington Department of Natural 
Resources and the Department of Ecology of any area designated 
unsuitable or for which such designation has been requested or 
terminated.



Sec. 947.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
shall apply to any person who conducts or seeks to conduct coal 
exploration operations.
    (b) The Office shall make every effort to act on an exploration 
application within 60 days of receipt or such longer time as may be 
reasonable under the circumstances. If additional time is needed, OSMRE 
shall notify the applicant that the application is being reviewed, but 
that more time is necessary to complete such review, setting forth the 
reasons and the additional time that is needed.

[52 FR 13816, Apr. 24, 1987]



Sec. 947.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, shall apply to any person who applies for a permit for 
surface coal mining and reclamation operations.
    (b) In addition to the requirements of part 773, the following 
permit application review procedures shall apply:
    (1) Any person applying for a permit shall submit five copies of the 
application to the Office.
    (2) The Office shall review an application for administrative 
completeness and acceptability for further review and shall notify the 
applicant in writing of the findings. The Office may:
    (i) Reject a flagrantly deficient application, notifying the 
application of the findings:
    (ii) Request additional information required for completeness 
stating specifically what information must be supplied and negotiate the 
date by which the information must be submitted; or
    (iii) Judge the application administratively complete and acceptable 
for further review.
    (3) Should the applicant not submit the information as required by 
Sec. 947.773(b)(2)(ii) by the specified date, the Office may reject the 
application. When the applicant submits the required information by the 
specified date, the Office shall review it and advise the applicant 
concerning its acceptability.
    (4) When the applicant is judged administratively complete, the 
applicant shall be advised by the Office to file the public notice 
required by Sec. 773.6 of this chapter.
    (5) A representative of the Office shall visit the proposed permit 
area to determine whether the operation and reclamation plans are 
consistent with

[[Page 684]]

actual site conditions. The applicant will be notified in advance of the 
time of the visit. At the time of the visit, the applicant shall have 
the locations of the proposed permit boundaries, topsoil storage areas, 
sediment control structures, roads, and other significant features 
contained in the application marked by flags.
    (c) In addition to the information required by subchapter G of this 
chapter, the Office may require an applicant to submit supplementary 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act.
    (d) The Secretary shall coordinate, to the extent practicable, his 
responsibilities under the following Federal laws with the relevant 
Washington State laws to avoid duplication:

------------------------------------------------------------------------
             Federal law                         Washington law
------------------------------------------------------------------------
(1) Clean Water Act, as amended 33     Water Pollution Control Act,
 U.S.C. 1251 et seq.                    Chapter 90.48 RCW
(2) Clean Air Act, as amended 42       Washington Clean Air Act, Chapter
 U.S.C. 7401 et seq.                    70.94 RCW.
(3) Resource Conservation and          Solid Waste Management, Chapter
 Recovery Act, 42 U.S.C. 3251.          70.95 RCW: Hazardous Waste
                                        Disposal Act, Chapter 70.105
                                        RCW.
(4) National Historic Preservation     Indian Graves and Records,
 Act, RCW, 16 U.S.C. 470 et seq..       Chapter 27.44.
(5) Archeological and Historic         Archeological Sites and
 Preservation Act, 16 U.S.C. 469 et     Resources, Chapter 27.53 RCW,
 seq.                                   Office of Archeology and
                                        Historic Preservation, Chapter
                                        43.51A, RCW.
(6) National Environmental Policy 42   State Environmental Policy Act,
 U.S.C. 4321 et seq.                    Chapter 43.21C RCW.
(7) Coastal Zone Management Act 16     Shoreline Management Act, Chapter
 U.S.C. 1451, 1453-1464.                90.58, RCW.
(8) Section 208 of the Clean Water     Water Pollution Control Act,
 Act, as amended, 33 U.S.C. 1251 et     Chapter 90.48 RCW: Washington
 seq.                                   Forest Practices Act, Chapter
                                        76.09 RCW.
(9) Endangered Species Act, 16 U.S.C.  Natural Area Preserves Act
 1531 et seq.                           (Plants), Chapter 79.70, RCW:
                                        Department of Game, Chapter
                                        43.17 RCW: Game Commission,
                                        Chapter 77.08, RCW.
(10) Fish and Wildlife Coordination    Water Resources Act of 1971,
 Act 16 U.S.C. 661-667.                 Chapter 90.54 RCW: Minimum Water
                                        Flows and Levels, Chapter 90.22
                                        RCW.
(11) Noise Control Act, 42 U.S.C.      Noise Control Act of 1974,
 4903.                                  Chapter 70.107 RCW.
(12) Bald Eagle Protection Act 16      .................................
 U.S.C. 668-668(d).
------------------------------------------------------------------------

    (e) The Secretary shall coordinate the SMCRA permit with appropriate 
State and regional or local agencies to the extent possible, to avoid 
duplication with the following state and regional or local regulations:
    (1) Department of Ecology:

Surface Water Rights Permit, RCW 90.03.250
Dam Safety Approval, RCW 90.03.350
Reservoir Permit, RCW 90.03.370
Approval of Change of Place or Purpose of Use (water) RCW 90.03.380
Ground Water Permit, RCW 90.44.050
New Source Construction Approval, RCW 79.94.152
Burning Permit, RCW 70.94.650
Flood Control Zone Permit, RCW 86.16.080
Waste Discharge Permit, RCW 90.48.180
National Pollution Discharge Elimination System (NPDES) Permit, RCW 
90.48
Approval of Change of Point of Diversion, RCW 90.03.380
Sewage Facilities Approval, RCW 90.48.110
Water Quality Certification, RCW 90.48.160

    (2) Department of Natural Resources:

Burning Permit, RCW 77.04.150 & .170
Dumping Permit, RCW 76.04.242
Operating Permit for Machinery, RCW 76.04.275
Cutting Permit, RCW 76.08.030
Forest Practices, RCW 76.09.060
Right of Way Clearing, RCW 76.04.310
Drilling Permit, RCW 78.52.120

    (3) Regional Air Pollution Control Agencies:

New Source Construction Approval (RCW 70.94.152)
Burning Permit, RCW 70.94.650

    (4) Department of Fisheries:

Hydraulic Permit, RCW 75.20

    (5) Department of Game:

Hydraulic Permit, RCW 75.20.100

    (6) Department of Social Health Services:

Public Sewage, WAC 248.92
Public Water Supply, WAC 248.54

    (7) Department of Labor and Industries:

Explosive license, RCW 70.74.135
Blaster's license, WAC 296.52.040
Purchaser's license, WAC 296.52.220
Storage Magazine license, WAC 296.52.170

    (8) Cities and Counties:


[[Page 685]]


New Source Construction Approval. RCW 70.94.152
Burning Permit, RCW 79.94.650
Shoreline Substantial Development Permit, RCW 90.58.140
Zoning and Building Permits, Local Ordinances

    (f) Where applicable, no person shall conduct coal exploration 
operations which result in the removal of more than 250 tons in one 
location or surface coal mining and reclamation operations without first 
obtaining permits required by the State of Washington.
    (g) The Secretary shall provide a copy of the decision to grant or 
deny a permit application to the Washington Department of Natural 
Resources, the Department of Ecology and to the County Department of 
Planning, if any, in which the operation is located.

[52 FR 13816, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 947.774  Revision; renewal; and transfer, assignment, or sale of permit 

rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, shall apply to any such actions 
involving surface coal mining and reclamation operations permits.
    (b) Any revision to the approved permit will be subject to review 
and approval by OSMRE.
    (1) Significant revisions shall be processed as if they are new 
applications in accordance with the public notice and hearing provisions 
of Sec. Sec. 773.6, 773.19(b) (1) and (2), and 778.21 and of part 775.
    (2) OSMRE shall make every effort to approve or disapprove an 
application for permit revision within 60 days of receipt or such longer 
time as may be reasonable under the circumstances. If additional time is 
needed, OSMRE shall notify the applicant that the application is being 
reviewed, but that more time is necessary to complete such review, 
setting forth the reasons and the additional time that is needed.
    (c) In addition to the requirements of part 774 of this chapter, any 
person having an interest which is or may be adversely affected by a 
decision on the transfer, assignment, or sale of permit rights, 
including an official of any Federal, State, or local government agency, 
may submit written comments on the application to the Office within 
thirty days of either the publication of the newspaper advertisement 
required by Sec. 774.17(b)(2) of this chapter or receipt of an 
administratively complete application, whichever is later.

[52 FR 13817, Apr. 24, 1987, as amended at 65 FR 79672, Dec. 19, 2000]



Sec. 947.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, shall apply to all decisions on permits.

[52 FR 13817, Apr. 24, 1987]



Sec. 947.777  General content requirements for permit applications.

    Part 777 of this chapter, General Content Requirements for Permit 
Applications, shall apply to any person who applies for a permit to 
conduct surface coal mining and reclamation operations.

[52 FR 13817, Apr. 24, 1987]



Sec. 947.778  Permit applications--minimum requirements for legal, financial, 

compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance, and Related Information, shall apply 
to any person who applies for a permit to conduct surface coal mining 
and reclamation operations.

[52 FR 13817, Apr. 24, 1987]



Sec. 947.779  Surface mining permit applications--minimum requirements for 

information on environmental resources.

    Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who makes application to conduct surface coal mining 
and reclamation operations.

[[Page 686]]



Sec. 947.780  Surface mining permit application--minimum requirements for 

reclamation and operation plan.

    (a) Part 780 of this chapter, Surface Mining Permit Application--
Minimum Requirements for Reclamation and Operation Plan, shall apply to 
any person who makes application to conduct surface coal mining and 
reclamation operations, except for Sec. 780.15(a) of that part.
    (b) Any applicant for a surface coal mining permit which is to 
produce more than 1,000,000 tons per year shall demonstrate compliance 
with local Air Pollution Control Authorities and the Washington Clean 
Air Act, RCW 70.94.
    (c) Any applicant for a surface mining permit shall describe the 
steps taken to comply with the Washington Water Pollution Control Act, 
RCW 90.48.

[48 FR 7883, Feb. 24, 1983, as amended at 48 FR 22292, May 18, 1983]



Sec. 947.783  Underground mining permit applications--minimum requirements for 

information on environmental resources.

    Part 783 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall 
apply to any person who submits an application to conduct underground 
coal mining operations.



Sec. 947.784  Underground mining permit applications--minimum requirements for 

reclamation and operation plan.

    (a) Part 784 of this chapter, Underground Mining Permit 
Applications--Minimum Requirements for Reclamation and Operation Plan, 
shall apply to any person who makes application to conduct underground 
coal mining operations.
    (b) Any application for an underground mining permit which will 
produce more than 1,000,000 tons per year shall demonstrate specific 
compliance with local Air Pollution Control Authorities and the 
Washington Clean Air Act, RCW 70.94.
    (c) Any applicant for an underground mining permit shall also 
indicate how compliance will be achieved with the Washington Water 
Pollution Control Act, RCW 90.48.



Sec. 947.785  Requirements for permits for special categories of mining.

    Part 785 of this chapter, Requirements for Permits for Special 
Categories of Mining, shall apply to each person who makes application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.



Sec. 947.795  Small operator assistance.

    Part 795 of this chapter, Small Operator Assistance, shall apply to 
any person making application for assistance under the small operator 
assistance program.



Sec. 947.800  Requirements for bonding of surface coal mining and reclamation 

operations.

    Part 800 of this chapter, Requirements for Bonding of Surface Coal 
Mining and Reclamation Operations Under Regulatory Programs, shall apply 
to all surface coal mining and reclamation operations.



Sec. 947.815  Performance standards--coal exploration.

    (a) Part 815 of this chapter, Permanent Program Performance 
Standards--Coal Exploration, shall apply to any person conducting coal 
exploration operations.
    (b) Any person who conducts coal exploration operations shall comply 
with the Washington Forest Practices Act, RCW 76.09, and regulations 
promulgated pursuant to it.



Sec. 947.816  Performance standards--surface mining activities.

    (a) Part 816 of this chapter, Permanent Program Performance 
Standards--Surface Mining Activities, shall apply to any person who 
conducts surface coal mining and reclamation operations.
    (b) All operators shall have a plan of reclamation approved by the 
Washington Department of Fisheries for operation in affected streams, 
RCW 75, and shall comply with the Hydraulic Project Approval Law, RCW 
75.20.100, the Shoreline Management Act, RCW 90.58, the Forest Practices 
Act, RCW 76.09, the Water Pollution Control Act, RCW 90.48, the Minimum 
Water Flows

[[Page 687]]

and Levels Act, RCW 90.22, and the Pesticide Control Act, RCW 15.58, and 
regulations promulgated pursuant to these laws.



Sec. 947.817  Performance standards--underground mining activities.

    (a) Part 817 of this chapter, Permanent Program Performance 
Standards--Underground Mining Activities, shall apply to any person who 
conducts underground coal mining operations.
    (b) All operators shall have a plan of reclamation approved by the 
Washington Department of Fisheries for operation in affected streams, 
RCW 75, and shall comply with the Hydraulic Project Approval Law, RCW 
75.20.100, the Shoreline Management Act, RCW 90.58, the Forest Practices 
Act, RCW, 76.09, the Water Pollution Control Act, RCW 90.48, the Minimum 
Water Flows and Levels Act, RCW 90.22, the Pesticide Control Act, RCW 
15.58, and the Washington Water Code, RCW 90.03, and regulations 
promulgated pursuant to these laws.



Sec. 947.819  Special performance standards--auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, shall apply to any person who conducts surface 
coal mining operations which include auger mining.



Sec. 947.822  Special performance standards--operations on alluvial valley 

floors.

    Part 822 of this chapter, Special Performance Standards--Operations 
on Alluvial Valley Floors, shall apply to any person who conducts 
surface coal mining and reclamation operations on alluvial valley 
floors, except in those coalfields in Washington west of the crest of 
the Cascade Mountain Range.

[48 FR 22292, May 18, 1983]



Sec. 947.823  Special performance standards--operations on prime farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, shall apply to any person who 
conducts surface coal mining and reclamation operations on prime 
farmland.



Sec. 947.824  Special performance standards--mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, shall apply to any person who conducts 
surface coal mining operations constituting mountaintop removal mining.



Sec. 947.827  Special performance standards--coal processing plants and 

support facilities not located at or near the minesite or not within the 

permit area for a mine.

    Part 827 of this chapter, Special Permanent Program Performance 
Standards--Coal Processing Plants and Support Facilities Not Located at 
or Near the Minesite or Not Within the Permit Area for a Mine, shall 
apply to any person who conducts surface coal mining and reclamation 
operations which include the operation of coal processing plants and 
support facilities not located at or near the minesite and not within 
the permit area for a mine.



Sec. 947.828  Special performance standards--in situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, shall apply to any person who conducts in 
situ processing activities.



Sec. 947.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, shall apply to 
all exploration and surface coal mining and reclamation operations.
    (b) Upon request OSM shall furnish a copy of any inspection report 
to the Washington Department of Natural Resources and the Department of 
Ecology. If there is a planning department in the county government 
where the operation is located, a copy of the enforcement action shall 
be furnished to that agency.



Sec. 947.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, shall apply when 
enforcement action is required for violations on surface coal mining and 
reclamation operations.
    (b) Upon request OSM shall furnish a copy of each enforcement action 
document and order to show cause issued

[[Page 688]]

pursuant to this section to the Washington Department of Natural 
Resources and the Department of Ecology. If there is a planning 
department in the county government where the operation is located, a 
copy of the enforcement action shall be furnished to that agency.



Sec. 947.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, shall apply when civil 
penalties are assessed for violations on surface coal mining and 
reclamation operations.



Sec. 947.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, shall apply to 
the assessment of individual civil penalties under section 518(f) of the 
Act.

[53 FR 3676, Feb. 8, 1988]



Sec. 947.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, shall apply to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[51 FR 19462, May 29, 1986]



PART 948_WEST VIRGINIA--Table of Contents



Sec.
948.1 Scope.
948.10 State regulatory program approval.
948.12 State statutory, regulatory, and proposed program amendment 
          provisions not approved.
948.13 State statutory and regulatory provisions set aside.
948.15 Approval of West Virginia regulatory program amendments.
948.16 Required regulatory program amendments.
948.20 Approval of State abandoned mine lands reclamation plan.
948.25 Approval of West Virginia abandoned mine lands reclamation plan 
          amendments.
948.26 Required abandoned mine land reclamation program/plan amendments. 
          [Reserved]
948.30 State-Federal Cooperative Agreement.

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



Sec. 948.1  Scope.

    This part contains all rules applicable only within West Virginia 
that have been adopted under the Surface Mining Control and Reclamation 
Act of 1977.

[46 FR 5954, Jan. 21, 1981]



Sec. 948.10  State regulatory program approval.

    The West Virginia program, as submitted on March 3, 1980, as 
clarified on July 16, 1980, and as resubmitted on December 19, 1980, is 
conditionally approved, effective January 21, 1981. Beginning on that 
date and continuing until July 11, 1985, the Department of Natural 
Resources was deemed the regulatory authority in West Virginia for all 
surface coal mining and reclamation operations and all exploration 
operations on non-Federal and non-Indian lands. Beginning on July 11, 
1985, the Department of Energy was deemed the regulatory authority 
pursuant to the program transfer provisions of Enrolled Committee 
Substitute for House Bill 1850, as signed by the Governor of West 
Virginia on May 3, 1985. Beginning on October 16, 1991, the Division of 
Environmental Protection was deemed the regulatory authority pursuant to 
Enrolled Committee Substitute for House Bill 217 that was signed by the 
Governor on October 25, 1991. On December 3, 1991, OSM found that it was 
not necessary to amend the State program to effect the redesignation of 
the regulatory authority from the Division of Energy to the Division of 
Environmental Protection (58 FR 42904, August 12, 1993). Beginning on 
April 14, 2001, the Department of Environmental Protection was deemed 
the regulatory authority pursuant to Enrolled Committee Substitute for 
House Bill 2218. The bill, which was signed by the Governor on April 30, 
2001, transferred programs and redesignated the Division of 
Environmental Protection as the Department of Environmental Protection 
within the executive branch. Copies of the conditionally approved 
program, as amended, are available at:
    (a) Office of Surface Mining, Charleston Field Office, 1027 Virginia 
Street East, Charleston, West Virginia 25301-2816. Telephone: (304) 347-
7158.

[[Page 689]]

    (b) West Virginia Department of Environmental Protection, Division 
of Mining and Reclamation, 10 McJunkin Road, Nitro, West Virginia 25143-
2506. Telephone: (304) 759-0510.

[66 FR 67453, Dec. 28, 2001]



Sec. 948.12  State statutory, regulatory, and proposed program amendment 

provisions not approved.

    (a) We are not approving the following provisions of the proposed 
program amendment that West Virginia submitted on May 11, 1998:
    (1) CSR 38-2-3.14, to the extent that it could be interpreted as 
applying to the on-site reprocessing of abandoned coal mine waste piles 
or to the extent that it would apply to the removal of abandoned coal 
refuse piles where, on average, the material to be removed meets the 
definition of coal in 30 CFR 700.5.
    (2) CSR 38-2-3.32.g., which concerns unanticipated events or 
conditions.
    (3) CSR 38-2-14.14.a.1., which concerns placement of excess spoil 
outside the permit area.
    (4) CSR 38-2-23, which concerns coal extraction as part of land 
development activities.
    (5) CSR 38-2-24.4, which concerns water quality standards for bond 
release.
    (b) We are not approving the following provisions of the proposed 
program amendment that West Virginia submitted on March 14, 2000, March 
28, 2000, and April 6, 2000:
    (1) The proviso at W.Va. Code 22-3-23(c)(2)(C) which concerns Phase 
III bond release where the quality of the untreated postmining water 
discharged is better than or equal to the premining water quality 
discharged from the mining site.
    (2) At CSR 38-2-7.4.b.1.C.5., the phrase, ``except for ponds and 
impoundments located below the valley fills.''
    (3) At CSR 38-2-7.4.b.1.D.2, the phrase, ``except for those areas 
with a slope of at least 50%.''
    (4) At CSR 38-2-7.4.b.1.G.1., the word ``excessive.''
    (5) At CSR 38-2-7.4.b.1.I., the new stocking standards for 
commercial forestry and forestry.
    (6) At CSR 38-2-7.4.b.1.I.2., the phrase, ``where there is potential 
for excessive erosion on slopes greater than 20%.''
    (7) At CSR 38-2-7.4.b.1.I.2., the words ``rock cover.''
    (8) At CSR 38-2-7.4.b.1.I.3., the phrase ``or, if a commercial 
forestry mitigation plan is submitted to the Director, and approved and 
completed.''
    (9) The portion of CSR 38-2-7.4.b.1.I.4. concerning in-kind 
mitigation plans.
    (10) At CSR 38-2-14.12.a.1., the term ``commercial forestry.''
    (c) We are not approving the following provisions of the proposed 
program amendment that West Virginia submitted on March 14, 2000, March 
28, 2000, and April 6, 2000:
    (1) At CSR 38-2-7.5.j.3.B., the phrase, ``except for those areas 
with a slope of at least 50%'' is not approved, and the phrase, ``and 
other areas from which the applicant affirmatively demonstrates and the 
Director of the WVDEP finds that soil cannot reasonably be recovered'' 
is not approved.
    (2) At CSR 38-2-7.5.j.6.A., the word ``excessive'' in the phrase 
``excessive erosion'' is not approved.
    (3) At CSR 38-2-7.5.o.2., the new planting arrangements and stocking 
standards are not approved.
    (4) At CSR 38-2-7.5.o.2., the words ``rock cover'' are not approved.
    (d) We are not approving the following provision of the proposed 
blasting-related program amendment that West Virginia submitted on 
October 30, 2000, and November 28, 2001: At CSR 199-1-4.8.c, the phrase 
``substantial or significant'' is not approved.
    (e) Section 22A-3-23(c)(3) of the Code of West Virginia is found 
inconsistent with Section 519(c)(3) of SMCRA to the extent that it 
states: ``Provided, however, That such a release may be made where the 
quality of the untreated postmining water discharged is better than or 
equal to the premining water quality discharged from the mining site.''
    (f) Section 22A-3-12(e) of the Code of West Virginia is found 
inconsistent with Section 515(e) of SMCRA.
    (g) [Reserved]
    (h) We are not approving the following provisions of the proposed 
program amendment that West Virginia submitted on March 25, 2004:
    (1) At CSR 38-2-7.6.e.1, the word ``excessive.''

[[Page 690]]

    (2) At CSR 38-2-7.7.e.1, the word ``excessive.''
    (i) We are not approving the following provisions of the proposed 
program amendment that West Virginia submitted on June 13, 2005, and 
modified on August 23, 2005:
    (1) At CSR 38-2-5.4.e.1, the words ``Impoundments meeting.''
    (2) At CSR 38-2-7.4.b.1.J.1(c), the deletion of the words ``surface 
material shall be composed of soil and the materials described in 
subparagraph 7.4.b.1.D.''

[48 FR 52053, Nov. 16, 1983, as amended at 50 FR 28323 and 28342, July 
11, 1985; 55 FR 21337, May 23, 1990; 61 FR 6535, Feb. 21, 1996; 65 FR 
26135, May 5, 2000; 65 FR 50430, Aug. 18, 2000; 65 FR 80328, Dec. 21, 
2000; 68 FR 40167, July 7, 2003; 68 FR 68738, Dec. 10, 2003; 70 FR 6590, 
Feb. 8, 2005; 71 FR 10790, Mar. 2, 2006]



Sec. 948.13  State statutory and regulatory provisions set aside.

    (a)-(b) [Reserved]
    (c) The following wording in section 22A-3-23(c)(3) of the Code of 
West Virginia is inconsistent with section 519(c)(3) of the Surface 
Mining Control and Reclamation Act of 1977 and is hereby set aside:

    Provided, however, That such a release may be made where the quality 
of the untreated postmining water discharged is better than or equal to 
the premining water quality discharged from the mining site.

    (d) Section 22A-3-12(e) of the Code of West Virginia is inconsistent 
with section 515(e) of the Surface Mining Control and Reclamation Act of 
1977 and is hereby set aside in its entirety.
    (e)-(f) [Reserved]

[50 FR 35084, Aug. 29, 1985, as amended at 61 FR 6535, Feb. 21, 1996]



Sec. 948.15  Approval of West Virginia regulatory program amendments.

    The following table lists the dates that West Virginia submitted 
proposed amendments to OSM, the dates when OSM published final rules 
approving all or portions of those amendments in the Federal Register, 
and the State statutory or regulatory citations for those amendments (or 
a brief description of the amendment). The amendments appear in order of 
the date of publication of the final rules announcing OSM's decisions on 
the amendments. The preambles to those final rules identify and discuss 
any assumptions underlying approval, any conditions placed on the 
approval, and any exceptions to the approval.

----------------------------------------------------------------------------------------------------------------
                                        Date of publication of
  Original amendment submission date          final rule           Citation/description of approved provisions
----------------------------------------------------------------------------------------------------------------
October 29, 1981.....................  May 11, 1982...........  Sec.  10.
June 17, 1982........................  September 10, 1982.....  Sec.  E.03 of the State's coal refuse disposal
                                                                 regulations.
September 14, 1982, October 29, 1982.  March 1, 1983..........  Sec. Sec.  4D.04h; 6A.02a.6; 6B.02, .07c.2, f;
                                                                 7A.02a.6; 12B.07; 15A.01; Part H concerning
                                                                 alternative bonding system.
February 16, 1983, April 29, 1983,     November 16, 1983......  Technical Handbook of Standards and
 June 15, 1983, September 13, 1983.                              Specifications for Mining Operations;
                                                                 applicability; bond release procedures for
                                                                 interim program permits; incidental mining.
January 12, 1984.....................  September 20, 1984.....  Chapter 22-4 Series--blaster certification
                                                                 program.
November 20, 1984....................  April 23, 1985.........  Chapter 22-4 Series, Sec.  6.01(B), 9--blaster
                                                                 certification program.
March 30, 1984, October 30, 1984, May  July 11, 1985..........  Reclamation and coal refuse disposal; Transfer
 20, 1985, June 14, 1985.                                        of program authority; permit addendum and
                                                                 Chapter 20, Revegetation, of the Technical
                                                                 Handbook for Surface Mining; permit or
                                                                 significant revision to a permit; the coal
                                                                 exploration approval document; civil penalty
                                                                 procedures; assessable and non-assessable
                                                                 violations.
November 11, 1985....................  March 20, 1986.........  Financial analysis and supporting documentation
                                                                 demonstrating sufficient money in the special
                                                                 reclamation fund; withdrawals from the fund;
                                                                 noncoal administrative expenses.
June 30, 1986, April 26, 1986........  May 23, 1990...........  Code of Violations; Replacement of all
                                                                 regulations in chapter 20, Article 6, Series
                                                                 VII and VII-A (1985) with new set of
                                                                 Legislative Rules at title 38, Series 2.
June 29, 1990........................  October 4, 1991........  CSR 38-2 Sec. Sec.  2, 3, 5, 6, 9, 11 through
                                                                 14, 17, 20, 22.
July 12, 1991........................  November 19, 1991......  CSR 38-2-20.5, .6, .7.
July 30, 1993........................  August 16, 1995........  CSR 38-2-14.14(b)(4), (g)(1)(B), (g)(8), (11),
                                                                 (12).

[[Page 691]]

 
June 28, 1993........................  October 4, 1995,         WV Code 22-1-4 through -8; 22-2; 22-3-3, -5, -7,
                                        February 21, 1996.       -8, -9, a, -11(a), (g), -12, -13, -15, -17, -
                                                                 18, -19, -22, -26, -28, -40; 22B-1-4 through -
                                                                 12; 22B-3-4; 22B-4; CSR 38-2-1.2, -2, -3.1(o),
                                                                 .4, .6, .7, .8, .12, .14, .15, .16, .25, .26,
                                                                 .27(a), .28, .29, .30, .31(a), .32, .33, .34, -
                                                                 4, .1(a), .2 through .12, -5.2, .4, .5, -6,
                                                                 .3(b), .6, .8, -8.1,-9, -11.1 through .7, -
                                                                 12.2, .3, .4(a), (2)(B), (c) through (e) except
                                                                 the words ``other responsible party'' at (e)
                                                                 are not approved, .5, -13, -14.5, .8, .11, .12,
                                                                 .14, .15, .17, .18, .19, -15.2, -16.2, -17, -
                                                                 18.3, -20.1, .2, .4 through .7, -22; 38-2C-4, -
                                                                 5, -8.2, -10.1, -11.1; 38-2D-4.4(b), -6.3(a), -
                                                                 8.7(a).
April 2, 1996........................  July 24, 1996..........  CSR 38-2-4.12, -5.4(c), -12.2(e), -14.3(c),
                                                                 .14(e)(4), .15(m).
February 23, 1998....................  July 14, 1998..........  WV Code Sections 22B-1-7(d), 7(h); 22B-3-4. WV
                                                                 Regulations CSR 38-2-1.2(c)(1). Vacating of
                                                                 retroactive approval published on February 21,
                                                                 1996.
April 28, 1997.......................  February 9, 1999.......  W.Va. Code 22-3 Sections 3(u)(2)(1) (decision
                                                                 deferred), (2)(not approved), (3); 3(x), (y)
                                                                 (partial approval), (z) (partial approval);
                                                                 13(b)(20), (22), (c)(3) (decision deferred);
                                                                 15(h); 17(b); 18(c), (f); 28 (a-c) (not
                                                                 approved), (d), (e) (decision deferred), (f).
                                                                 WV Regulations CSR 38-2 Sections 2.4, 2.43 (not
                                                                 approved), 2.95 (not approved), 2.108, 2.120;
                                                                 3.2.e; 3.12.a.1 (partial approval), .2 (partial
                                                                 approval); 3.14.b.7 & .8 deleted, .12.E, .15.B
                                                                 deleted, .13.B; 3.29.a (partial approval);
                                                                 3.35; 5.5.c; 6.5.a; 8.2.e; 9.2.i.2; 9.3.h.1,
                                                                 .2; 14.11.e, .f, .g, .h; 14.15.b.6.A, .c, .d;
                                                                 16.2.c (partial approval), .2, .3, .4 (partial
                                                                 approval for .4); 20.1.e
April 28, 1997.......................  May 14, 1999...........  W.Va. Code 22-3 Section 13(c)(3) [not approved].
May 11, 1998.........................  May 5, 2000............  West Virginia regulations at CSR 38-2-2.25;
                                                                 2.102; 3.32.d.12; 14.16 through 14.19; 22.5.1;
                                                                 24 (except 24.4).
May 5, 1999..........................  October 1, 1999........  CSR 38-2-2.11; 2.78; 3.12.a.2, and .2.B; 3.32.b;
                                                                 3.35; 14.12.a.1; 16.2.c, and .c.3; and 22.4.g.
March 25, 1999.......................  November 12, 1999......  W.Va. Code 22-1-7(a)(7); 22-3-13(a), (b)(3) and
                                                                 (15), (e), and (f); 22-3-13a, in 13a(g) the
                                                                 words ``upon request'' are not approved, in
                                                                 13a(j)(2) the phrase ``or the surface impacts
                                                                 of the underground mining methods'' is not
                                                                 approved; 22-3-22a; 22-3-23(c)(3) decision is
                                                                 deferred; 22-3-24(c), (d), (e), and (f); 22-3-
                                                                 30a, in 30a(a) the phrase ``of overburden and
                                                                 coal'' is not approved, 30a(c) and (f) are not
                                                                 approved; and 22-3A.
March 14, 2000, March 28, 2000, and    August 18, 2000........  W.Va. Code 22-3- at 3(e), (u)(2); (y); 13(c)(3)
 April 6, 2000.                                                  (qualified approval), (c)(3)(B)(iii); 23(c)(1),
                                                                 (2) (partial approval). CSR 38-2- at 2.31,
                                                                 2.45, 2.98, 2.123, 2.136; 3.8c; 3.25; 7.2.i;
                                                                 7.3; 7.4.a (qualified approval): 7.4.b.1;
                                                                 7.4.b.1.A. (qualified approval), 7.4.b.1.B., C.
                                                                 (partial approval), D. (partial approval), E.
                                                                 (qualified approval), F., G. (partial
                                                                 approval), H., I. (partial approval), J.
                                                                 (qualified approval), K.; 14.15.f.
March 14, 2000, March 28, 2000, and    12/21/00...............  CSR 38-2-7.5.(qualified approval), 7.5.a., b.,
 April 6, 2000.                                                  c., d., e. (qualified approval), f. (qualified
                                                                 approval), g. (qualified approval), h. (h.2.B.
                                                                 is a qualified approval), i. (i.1.B., i.3.H.,
                                                                 i.3.Q. and i.7.A., and i.10. are qualified
                                                                 approvals), j. (j.2.C. and j.2.E. are qualified
                                                                 approvals; j.3.B. partial approval; j.4.
                                                                 qualified approval, j.6.A. partial approval,
                                                                 j.6.B. qualified approval, j.7. qualified
                                                                 approval), k. (qualified approval), l., m., n.,
                                                                 o. (qualified approval; o.2. is a partial
                                                                 approval).
September 24, 2001...................  December 28, 2001......  W. Va. Code 22-1-17; 22-3-11(a), (c), (d), (g)
                                                                 through (n); 22-3-12(a) through (f).
November 30, 2000; May 2, 2001;        May 1, 2002............  Emergency rule provisions: CSR 38-2-3.12.a.1,
 November 28, 2001; February 26,                                 a.2, a.2.B; 5.4.b.8, d.3; 16.2.c.4.
 2002; March 8, 2002.
                                                                Policy/guidance documents submitted February 26,
                                                                 2002: Attachments 1A; 2P; 3P and the updated
                                                                 listing (Administrative Record Number WV-1278);
                                                                 4 except examples 1 and 3 through 8; 6; and 9.
                                                                Policy/guidance documents submitted March 8,
                                                                 2002: Attachments 1; 3A; and 8.
                                                                In House Bill 2663: CSR 38-2-3.12.a.1; 3.14.a;
                                                                 12.2.e; 12.4.e; 14.8.a.6; 16.2.c.4; and 24.4.
                                                                In Senate Bill 689: W. Va. Code 22-3-13a(g),
                                                                 (j); 30a(a).
September 24, 2001...................  May 29, 2002...........  CSR 38-2-12.5.d.
April 9, 2002........................
April 9, 2002........................  December 3, 2002.......  CSR 38-2-14.15.a.1, a.2; b.5; b.6.A, b.6.B.1; c,
June 19, 2002........................                            c.1, c.4; d, d.1, d.2, d.3; e, e.1, e.2, e.3; g
                                                                 (partial approval), g.2; i (qualified
                                                                 approval).
May 21, 2001, August 12, 2002........  May 7, 2003............  W. Va. Code 22-3-10(b).
April 9, 2002, June 19, 2002.........  June 27, 2003..........  CSR 38-2: 2.31.b.1; 2.43; 2.108; 3.1.i.2;
                                                                 3.25.a.4; 3.30.d.8; 3.32.e; 5.4.e.2; 7.4.a.1;
                                                                 7.4.b.1.C.5; 7.4.b.1.D.1; 7.4.b.1.G.1;
                                                                 7.4.b.1.G.3; 7.4.b.1.H.2; 7.4.b.1.I.2;
                                                                 7.4.b.1.I.3; 7.5.i.1.B; 7.5.i.3.Q; 7.5.i.10;
                                                                 7.5.j.3.A; 7.5.j.6.A; 7.5.j.6.B; 7.5.o.2;
                                                                 8.2.b.3; 10.4.a.1.D; 10.6.b.3; 11.2.b;
                                                                 11.4.a.1; 11.4.a.4; 11.5. (deletion of former);
                                                                 11.5.a; 12.5.e; 14.12.a.1; 17.3.b.2; 17.4;
                                                                 17.6; and 22.7.a.

[[Page 692]]

 
March 18, 2003.......................  July 7, 2003...........  CSR 38-2-3.2.c, 3.7.d, 3.20 3.22.f.5.A, A.1, and
                                                                 A.2, 5.4.b.4, 5.4.b.11, 5.6, 8.2.e, 9.1.a,
                                                                 9.3.d, 9.3.f, 10.2.a.4, 10.3.a.1, 10.4.c.1,
                                                                 10.6.b.2, b.7.A, b.7.B, b.8, 14.5.h, 14.14.g.1,
                                                                 g.2 (partial approval; also, approved only to
                                                                 the extent that after removal of erosion
                                                                 protection zones, the stream channel will be
                                                                 restored), and g.3, 14.15.a.2, c, and g, 17.1,
                                                                 20.6.a, c, and d, e, f, and j, 22.4.g.3.A and
                                                                 i.6, 24.2.a, 24.3, and 24.4. CSR 38-4-25.14.
May 2, 2001, July 1, 2003............  December 1, 2003.......  CSR 38-2-2.39 (a deletion), 3.22.e, 3.31.a
                                                                 (deferral), 3.32.g, 5.2.a, and 11.3.a.3.
October 30, 2000, November 28, 2001..  December 10, 2003......  W.Va. Code 22-3-13a(a)(3), (b), (c), (f)(14),
                                                                 (g); 22a(a), (b), (e), (f), (g); 30a(b),
                                                                 (b)(3), (b)(3)(C), (b)(5), (c), (d), (e), (f),
                                                                 (h).
                                                                Code of State Regulations CSR 199-1, except as
                                                                 identified at 30 CFR 948.12(d), and subdivision
                                                                 3.10.d is a qualified approval.
March 14, 2000, March 28, 2000, and    June 17, 2004..........  CSR 38-2-7.4.b.1.I.
 April 5, 2000.
March 25, 2004.......................  February 8, 2005.......  CSR 38-2-3.12.a.1; 7.6 (except the word
                                                                 ``excessive'' at 7.6.e.1); 7.7 (except the word
                                                                 ``excessive'' at 7.7.e.1); 9.3.g; 14.15.a.1;
                                                                 14.15.g; 20.1.a.6; 22.5.a; 23 (deleted); and
                                                                 24. Reduced Inspection Frequency Policy dated
                                                                 November 3, 2004.
October 17, 2005, and amended          December 30, 2005......  CSR 38-2-11.3.a.3.
 November 4, 2005.
June 13, 2005, and modified on August  March 2, 2006..........  W.Va. Code 22-3-11(h)(2)(B); 11a; 32a; 22-27-1
 23, 2005.                                                       through 12. CSR 38-2-2.92; 3.29.a; 5.4.a, b.9,
                                                                 b.10, b.12, c.7, d.3, d.4, e.1, f; 7.4.b.1.A.1,
                                                                 A.3, A.3(b), A.4, B.1, C.1, C.2, C.3, C.4, C.5,
                                                                 D.6, D.8, D.9, D.11, H.1, H.2, H.6, I.1, I.2,
                                                                 I.3, I.4, J.1; 7.5.a, b.3, i.10, j.3.A, j.3.B,
                                                                 j.3.E, l.4.A, o.2; 9.3.d, 9.3.e; 14.5.h,
                                                                 14.14.g.2.A.6; 14.15.c.3; 20.6.d, 20.6.j. CSR
                                                                 199-1-2.36a, 2.36b, 2.37; 3.3.b, 3.7; 4.8,
                                                                 4.8.c, 4.8.f, 4.8.g, 4.9; Water Rights and
                                                                 Replacement Policy (August 1995); September
                                                                 2003 MOA between WVDEP, DMR and WVDNR, Wild
                                                                 Resources Section; Permittee's Request for
                                                                 Release form, Item 11, dated March 2005.
April 17, 2006.......................  August 28, 2006........  W. Va. Code 22-3-24(c), (d), (e), and (h).
                                                                CSR 38-2-7.2.e.1; 7.3.d; and 7.8 (qualified
                                                                 approval).
April 17, 2008.......................  June 16, 2008..........  W. Va. Code 22-3-11(g)
                                                                (interim approval), 11(h)(1)
                                                                (interim approval).
March 22, 2007.......................  December 24, 2008......  CSR 38-2-2.39 (deletion of cumulative impact
                                                                 definition).
                                                                CSR 38-2-3.22.e (approval of material damage to
                                                                 the hydrologic balance definition).
May 28, 2009.........................  July 22, 2009..........  W. Va. Code 22-3-11(h)(1) (interim approval).
----------------------------------------------------------------------------------------------------------------


[62 FR 9957, Mar. 5, 1997]

    Editorial Note: For Federal Register citations affecting Sec. 
948.15, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.

    Effective Date Note: At 76 FR 38000, June 29, 2011, Sec. 948.15 was 
amended by adding a table entry in chronological order by ``Date of 
publication of final rule'', effective July 14, 2011. For the 
convenience of the user, the added and revised text is set forth as 
follows:



Sec. 948.15  Approval of West Virginia regulatory program amendments.

                                * * * * *

----------------------------------------------------------------------------------------------------------------
                                        Date of publication of
  Original amendment submission date          final rule           Citation/description of approved provisions
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
May 2, 2011..........................  June 29, 2011..........  W. Va. Code 22-3-7(b); 8(a)(4); 19(a)(4);
                                                                 19(b)(2); 19(b)(3); 19(d); and 19(e) (interim
                                                                 approvals).
                                                                CSR 38-2-11.4.a.2 (interim approval).
----------------------------------------------------------------------------------------------------------------


[[Page 693]]



Sec. 948.16  Required regulatory program amendments.

    Pursuant to 30 CFR 732.17, West Virginia is required to submit the 
following proposed program amendments by the dates specified:
    (a)-(rrrrr) [Reserved]

[50 FR 28324, July 11, 1985 and 50 FR 38652, Sept. 24, 1985]

    Editorial Note: For Federal Register citations affecting Sec. 
948.16, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 948.20  Approval of State abandoned mine lands reclamation plan.

    The West Virginia Abandoned Mine Reclamation Plan as submitted on 
October 29, 1980, and as amended on December 12, 1980, is approved 
effective February 23, 1981. Copies of the approved plan are available 
at the following locations:
    (a) Office of Surface Mining, Charleston Field Office, 1027 Virginia 
Street East, Charleston, West Virginia 25301-2816. Telephone: (304) 347-
7158.
    (b) West Virginia Department of Environmental Protection, Office of 
Abandoned Mine Lands and Reclamation, 601 57th Street SE., Charleston, 
West Virginia 25304-2345, Telephone (304) 926-0485.

[66 FR 67454, Dec. 28, 2001, as amended at 72 FR 1937, Jan. 17, 2007]



Sec. 948.25  Approval of West Virginia abandoned mine lands reclamation plan 

amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
May 20, 1985.........................  July 11, 1985..........  Transfer of program authority to the Department
                                                                 of Energy (HB 1850).
December 30, 1987....................  August 26, 1988........  Agency structure, public participation
                                                                 procedures, assumption of emergency reclamation
                                                                 program.
September 17, 1991, October 25, 1991.  March 26, 1993.........  Amendments contained in House Bill 2492;
                                                                 Expanded eligibility criteria; Acid mine
                                                                 drainage treatment and abatement program.
June 27, 2006........................  January 17, 2007.......  Amendment includes AML enhancement requirements
                                                                 and other revisions to West Virginia's AMLR
                                                                 Plan dated June 16, 2006.
----------------------------------------------------------------------------------------------------------------


[62 FR 9958, Mar. 5, 1997, as amended at 72 FR 1937, Jan. 17, 2007]



Sec. 948.26  Required abandoned mine land reclamation program/plan amendments. 

[Reserved]



Sec. 948.30  State-Federal Cooperative Agreement.

                          Cooperative Agreement

    This is a Cooperative Agreement (Agreement) between the State of 
West Virginia (State) acting by and through the Governor, and the United 
States Department of the Interior (Department), acting by and through 
the Secretary of the Interior (Secretary).

 Article I: Introduction, Purpose and Responsible Administrative Agency

    A. Authority: This Agreement is authorized by section 523(c) of the 
Surface Mining Control and Reclamation Act (the Federal Act), 30 U.S.C. 
1273(c), which allows a State with a permanent regulatory program 
approved under 30 U.S.C. 1253 to elect to enter into an Agreement for 
the regulation and control of surface coal mining and reclamation 
operations on Federal lands within that State. This Agreement provides 
for such regulation within West Virginia except on lands containing 
leased Federal coal consistent with the State and Federal Acts, the West 
Virginia State Program (State program), and the Federal Lands Program 
(section 523(a) of the Federal Act and 30 CFR parts 740-745).
    B. Purpose: The purpose of the Agreement is to: (1) Foster State-
Federal cooperation in the regulation of surface coal mining and 
reclamation operations on Federal lands; (2) eliminate unnecessary 
intergovernmental overlap and duplication; and (3) provide uniform and 
effective application of the State

[[Page 694]]

program on all lands except those containing leased Federal coal in West 
Virginia.
    C. Responsible Administrative Agencies: The Department of Natural 
Resources, Reclamation Division (DNR) is responsible for administering 
this Agreement on behalf of the Governor on Federal lands throughout the 
State. The Office of Surface Mining Reclamation and Enforcement (OSM) is 
responsible for administering this Agreement on behalf of the Secretary, 
in accordance with the regulations in 30 CFR Chapter VII. The Federal 
lands in West Virginia covered by this Agreement are predominantly those 
under the jurisdiction of the United States Department of Agriculture, 
Forest Service. It is understood by all parties that the Forest Service 
or the Federal land management agency, if other than the Forest Service, 
will continue to govern mining operations on Federal lands covered by 
this agreement pursuant to laws, regulations, agreements, and 
restrictions for which the respective agency is responsible. These 
requirements are in addition to the requirements discussed in this 
Agreement.

                       Article II: Effective Date

    After it has been signed by the Governor and the Secretary, the 
Agreement shall take effect upon publication in the Federal Register as 
a final rule. This Agreement shall remain in effect until terminated as 
provided in Article X.

                        Article III: Definitions

    Terms and phrases used in this Agreement which are defined in 30 CFR 
parts 700, 701 and 740, and the State program shall be given the 
meanings set forth in said definitions.

                        Article IV: Applicability

    A. Applicability to Federal Lands: In accordance with the Federal 
Lands Program in 30 CFR part 740, the laws, rules, terms, and conditions 
of the State program (as conditionally approved effective January 21, 
1981, 30 CFR part 948, or as hereinafter amended in accordance with 30 
CFR 732.17) are applicable to Federal lands within West Virginia. This 
Agreement does not apply to operations on Federal lands containing 
leased Federal coal.
    B. Filing of Appeals: Orders and decisions issued by DNR in 
accordance with the State program that are appealable shall be appealed 
to the State of West Virginia's Reclamation Board of Review. Orders and 
decisions issued by the Department that are appealable shall be appealed 
to the Department of the Interior's Office of Hearings and Appeals.

            Article V: Requirements for Cooperative Agreement

    The Governor and the Secretary affirm that they will comply with all 
of the provisions of this Agreement and will continue to meet all the 
conditions and requirements specified in this Article.
    A. Authority of State Agency: DNR has and shall continue to have 
authority under State law to carry out this Agreement.
    B. Funds: Upon application by the DNR and subject to the 
availability of appropriations, the Department shall provide the State 
with the funds to defray the costs associated with carrying out 
responsibilities under this Agreement as provided in section 705(c) of 
the Act and 30 CFR 735.16. If sufficient funds have not been 
appropriated to OSM, OSM and DNR shall promptly meet to decide on 
measures that will insure that mining operations are regulated in 
accordance with the State program. If agreement cannot be reached, then 
either party may terminate the Agreement in accordance with Article X.
Funds provided to the State shall be adjusted in accordance with Office 
of Management and Budget Circular A-102, Attachment E, and shall be 
reduced by the amount of fees collected by the State that are 
attributable to the Federal lands covered by this Agreement.
    C. Reports and Records: DNR shall make annual reports to OSM 
pursuant to 30 CFR 745.12(d), containing information respecting its 
compliance with the terms of this Agreement. Upon request, DNR and OSM 
shall exchange information developed under this Agreement except where 
prohibited by Federal law. OSM shall provide DNR with a copy of any 
final evaluation report concerning State administration and enforcement 
of this Agreement.
    D. Personnel: DNR shall provide the necessary personnel to fully 
implement this Agreement in accordance with the provisions of the 
Federal and State Acts and the State program.
    E. Equipment and Laboratories: DNR shall assure itself access to 
equipment, laboratories, and facilities with which all inspections, 
investigations, studies, tests, and analyses can be performed and which 
are necessary to carry out the requirements of this Agreement.
    F. Permit Application Fees: The amount of the fee accompanying an 
application for a permit shall be determined in accordance with Section 
20-6-9(f) of the Code of West Virginia (1931), as amended. All permit 
and civil penalty fees collected from operations on Federal lands shall 
be retained by the State and deposited with the State Treasurer. The 
financial status report submitted pursuant to 30 CFR 735.26 shall 
include a report of the amount of permit application fees collected and 
attributable to Federal lands during the prior Federal fiscal year. This 
amount shall be disposed of in accordance with Federal regulations, and 
OMB Circular No. A-102, Attachment E.

[[Page 695]]

           Article VI: Review of a Permit Application Package

    A. Contents of Permit Application Package: DNR and the Secretary 
shall require an operator proposing to conduct surface coal mining and 
reclamation operations on Federal lands covered by this Agreement to 
submit a permit application package in an appropriate number of copies 
to DNR. DNR will furnish OSM a copy if OSM so requests. The permit 
application package shall be in the form required by DNR and include any 
supplemental information required by OSM or the Federal land management 
agency. The permit application package shall include the information 
required by, or necessary for, DNR to make a determination of compliance 
under 30 CFR 740.4(c)(2) with any conditions or special requirements 
imposed by the Federal land management agency and with the requirements 
of the State program, including:
    1. W. Va. Code, Section 20-6-1 et seq., as amended;
    2. Applicable regulations of the West Virginia Surface Mining 
Reclamation Regulations, 20-6-Series VIII (1981);
    3. Requirements of the West Virginia DNR Reclamation Division 
``Technical Handbook of Standards and Specifications for Mining 
Operations (1981).''
    B. Review Procedures: 1. DNR shall assume primary responsibility for 
the analysis, review, and approval or disapproval of permit application 
packages required by 30 CFR 740.13 for surface coal mining and 
reclamation operations on Federal lands in West Virginia except those 
containing leased Federal coal. DNR shall be the primary point of 
contact for operators regarding decisions on the permit application 
package and will be responsible for informing the applicant of all joint 
State-Federal or Federal determinations.
    2. Upon receipt of a permit application package that involves 
surface coal mining and reclamation operations on Federal lands covered 
by this agreement, DNR shall (1) transmit a copy of the complete permit 
application package to the Federal land management agency with a request 
for review pursuant to 30 CFR 740.13(b)(4), and (2) provide OSM with 
relevant information to allow OSM to determine whether or not the 
proposed surface coal mining and reclamation operation is prohibited or 
limited by the requirements of section 522(e) of the Federal Act (30 
U.S.C. 1272(e)) and 30 CFR parts 760-762 with respect to Federal areas 
designated by Congress as unsuitable for mining. DNR shall be 
responsible for obtaining, in a timely manner, the views and 
determinations of any other Federal agencies with jurisdiction or 
responsibility over Federal lands affected by a permit application 
package in West Virginia.
    3. OSM will provide technical assistance to DNR when requested if 
available resources allow and will process requests for determinations 
of compatibility and valid existing rights under 30 CFR part 761 
relating to Federal areas designated by Congress as unsuitable for 
mining. OSM will be responsible for ensuring that any information OSM 
receives from an applicant is promptly sent to DNR. OSM shall have 
access to DNR files concerning mines on Federal lands. The Secretary 
reserves the right to act independently of DNR to carry out his 
responsibilities under laws other than the Federal Act. A copy of all 
resulting correspondence with the applicant that may have a bearing on 
decisions regarding the permit application package shall be sent to the 
State.
    4. DNR shall prepare the required technical analysis and written 
findings on the permit application package. If requested by the Federal 
land management agency, a draft of these documents shall be sent to it 
for review and comment.
    5. The permit issued by DNR shall incorporate any terms or 
conditions imposed by the Federal land management agency, including 
conditions relating to post-mining land use, and shall condition the 
initiation of surface coal mining operations on compliance with the 
requirements of the Federal land management agency. After DNR issues the 
decision on the permit application package, it shall send a notice to 
the applicant, the Federal land management agency, and OSM with a 
statement of findings and conclusions in support of the action.

                        Article VII: Inspections

    DNR shall conduct inspections on Federal lands covered by this 
agreement and prepare and file inspection reports in accordance with the 
approved Program
    A. Inspection Reports: DNR shall, within 15 days of conducting any 
inspection on Federal lands, file with OSM an inspection report 
describing (1) the general conditions of the lands under the permit; (2) 
whether the operator is complying with applicable performance and 
reclamation requirements; and (3) the manner in which specific 
operations are being conducted.
    B. DNR Authority: DNR shall be the point of contact and primary 
inspection authority in dealing with the operator concerning operations 
and compliance with the requirements covered by this Agreement, except 
as described in this Agreement and the Secretary's regulations. Nothing 
in this Agreement shall prevent inspections by authorized Federal or 
State agencies for purposes other than those covered by this Agreement.
    C. OSM Authority: OSM may conduct inspections of surface coal mining 
and reclamation operations on Federal lands for the purpose of 
evaluating the manner in which this Agreement is being carried out and 
to

[[Page 696]]

insure that performance and reclamation standards are being met. In 
order to facilitate a joint Federal-State inspection, OSM will 
ordinarily give DNR notice of its intent to conduct an inspection. When 
OSM is responsing to a citizen complaint of an imminent danger to the 
health or safety of the public or a significant, imminent environmental 
harm pursuant to 30 CFR 842.11(b)(1)(i), it will contact DNR if 
circumstances and time allow, prior to the Federal inspection. OSM may 
conduct any inspections necessary to comply with 30 CFR part 842. If an 
inspection is made without DNR inspectors, OSM shall provide DNR with a 
copy of the inspection report within 15 days after inspection. The 
Secretary reserves the right to conduct inspections without prior notice 
to DNR to carry out his responsibilities under the Act.
    D. Witness Availability: Personnel of the State and of the 
Department of the Interior shall be mutually available to serve as 
witnesses in enforcement actions taken by either party.

                        Article VIII: Enforcement

    A. DNR Inforcement: DNR shall have primary enforcement authority on 
Federal lands covered by this agreement in accordance with the State 
program and this Agreement. During any joint inspection by OSM and DNR, 
DNR shall take appropriate enforcement action, including issuance of 
orders of cessation and notices of violation.
    B. Notification: DNR shall promptly notify the Federal land 
management agency of all violations of applicable laws, regulations, 
orders, and approved permits subject to this Agreement and of all 
actions taken with respect to such violations.
    C. Secretary's Authority: (1) This Agreement does not affect or 
limit the Secretary's authority to enforce provisions of laws other than 
the Act. (2) During an inspection made solely by OSM or any joint 
inspection where DNR and OSM fail to agree regarding the propriety of 
any particular enforcement action, OSM may take any enforcement action 
necessary to comply with 30 CFR parts 843 and 845. Such enforcement 
action shall be based on the Act or the substantive requirements of the 
State program and shall be taken using the procedures and penalty system 
contained in 30 CFR parts 843 and 845.

                            Article IX: Bonds

    A. Performance Bond: DNR shall require all operators on Federal 
lands to submit a performance bond to cover the operator's 
responsibilities under the Federal Act and the State program, payable to 
both the United States and West Virginia. The performance bond shall be 
of sufficient amount to comply with the requirements of both State and 
Federal law, and release of the performance bond shall be conditioned 
upon compliance with all applicable requirements. DNR may release the 
operator from any obligation under the performance bond with the 
concurrence of the Federal land management agency. If this Agreement is 
terminated: (1) The bond will revert to being payable only to the United 
States to the extent that Federal lands are involved, and (2) the bond 
will be delivered by DNR to OSM if only Federal lands are covered by the 
bond.
    B. Forfeiture: In the event of forfeiture by an operator of the 
performance bond for surface coal mining and reclamation operations on 
Federal lands covered by this agreement, the State shall use funds 
received from bond forfeiture and, where necessary, funds from the West 
Virginia Special Reclamation Fund (pursuant to Section 20-6-12(h) of the 
West Virginia Surface Coal Mining and Reclamation Act) to ensure that 
reclamation is accomplished in accordance with the State program and the 
approved permit.

             Article X: Termination of Cooperative Agreement

    This Agreement may be terminated by the Governor or the Secretary 
under the provisions of 30 CFR 745.15.

           Article XI: Reinstatement of Cooperative Agreement

    If this Agreement has been terminated in whole or in part, it may be 
reinstated under the provisions of 30 CFR 745.16.

             Article XII: Amendment of Cooperative Agreement

    This Agreement may be amended by mutual agreement of the Governor 
and the Secretary in accordance with 30 CFR 745.14.

           Article XIII: Changes in State or Federal Standards

    A. Time for Changes: The Secretary or the State may from time to 
time promulgate new Federal or State regulations, including new or 
revised performance or reclamation requirements or enforcement or 
administration procedures. OSM and DNR shall immediately inform each 
other of any final changes and of any effect such changes may have on 
the cooperative agreement. If it is determined to be necessary to keep 
this Agreement in force, DNR shall request necessary State legislative 
action and each party shall change or revise its regulations or 
promulgate new regulations, as applicable. Such changes shall be made 
under the procedures of 30 CFR part 732 for changes to the approved 
State program and sections 501 and 523 of the Federal Act for changes to 
the Federal lands program.
    B. Copies of Changes: The State and OSM shall provide each other 
with copies of any

[[Page 697]]

changes to their respective laws, rules, regulations, and standards 
pertaining to the enforcement and administration of this Agreement.

           Article XIV: Changes in Personnel and Organization

    DNR and the Secretary shall, consistent with 30 CFR part 745, advise 
each other of changes in the organization, structure, functions, duties, 
and funds of the offices, departments, divisions, and persons within 
their organizations which could affect administration and enforcement of 
this Agreement. Each shall promptly advise the other in writing of 
changes in key personnel, including the head of a department or 
division, or changes in the functions or duties of persons occupying the 
principal offices within the structure of the program. DNR and OSM shall 
advise each other in writing of changes in the location of offices, 
addresses, telephone numbers, and changes in the names, location and 
telephone numbers of their respective mine inspectors and the area 
within the State for which such inspectors are responsible.

                    Article XV: Reservation of Rights

    In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that have 
not been expressly addressed in this Agreement that the State or the 
Secretary may have under other laws or regulations.

(Pub. L. 95-87 (30 U.S.C. 1201 et seq.))

    Dated: February 16, 1984.

                                                          William Clark,
                                              Secretary of the Interior.
    Dated: February 24, 1984.

                                                 John D. Rockefeller IV,
                                              Governor of West Virginia.

[49 FR 8917, Mar. 9, 1984]



PART 950_WYOMING--Table of Contents



Sec.
950.1 Scope.
950.10 State regulatory program approval.
950.12 State program provisions and amendments not approved.
950.15 Approval of Wyoming regulatory program amendments.
950.16 Required program amendments.
950.20 State-Federal Cooperative Agreement.
950.30 Approval of Wyoming abandoned mine land reclamation plan.
950.35 Approval of Wyoming abandoned mine land reclamation plan 
          amendments.
950.36 Required abandoned mine land plan amendments. [Reserved]

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



Sec. 950.1  Scope.

    This part contains all rules applicable only within the State of 
Wyoming which have been adopted under the Surface Mining Control and 
Reclamation Act of 1977.

(Sec. 503, Pub. L. 95-87 (30 U.S.C. 1253))

[45 FR 78684, Nov. 26, 1980]



Sec. 950.10  State regulatory program approval.

    The Wyoming permanent program as submitted on August 15, 1979 and as 
revised on October 23, 1979 and May 30, 1980, is approved effective 
November 26, 1980. Copies of the approved program are available at:
    (a) Office of Surface Mining Reclamation and Enforcement, Casper 
Field Office, 100 East B Street, room 2128, Casper, Wyoming 82601-1918, 
Telephone: (307) 261-5776.
    (b) Wyoming Department of Environmental Quality, Land Quality 
Division, Herschler Building, 122 West 25th Street, Cheyenne, Wyoming 
82002, Telephone: (307) 777-7756.

[56 FR 3219, Jan. 29, 1991]



Sec. 950.12  State program provisions and amendments not approved.

    (a) The following provisions of the Rules and Regulations of the 
Land Quality Division of the Wyoming Department of Environmental 
Quality, as submitted on May 1, 1986, are hereby disapproved:
    (1) The phrases ``run-of-the-mine'' and ``to separate the coal from 
its impurities'' within the definition of ``coal preparation plant'' at 
Chapter I, section 2(m);
    (2) [Reserved]
    (3) Deletion of the requirement at Chapter II, section 
3(a)(vi)(H)(II)(3) to collect baseline surface water data on acidity;
    (4) Deletion of the locational data requirements for monitoring 
stations at Chapter II, section 3(a)(vi)(M);
    (5) [Reserved]
    (6) Replacement of the word ``is'' with the phrase ``the vegetative 
cover and total ground cover are'' in Chapter IV, section 2(d)(vi);

[[Page 698]]

    (7) Addition of the phrase ``or an alternative success standard 
approved by the Administrator'' to Chapter IV, section 2(d)(vi);
    (8)-(9) [Reserved]
    (10) All revisions to Chapter IV, section 3(a)(ix) concerning cut-
and-fill terraces;
    (11) Addition of section 1(a)(ii)(C), section 2(c), and section 3 to 
Chapter IX, which would have provided a general variance from the 
approximate original requirements; and
    (12) All revisions to Chapter XVII, which would have introduced a 
new enforcement scheme.
    (b) The following provision of the Rules and Regulations of the Land 
Quality Division of the Wyoming Department of Environmental Quality, as 
submitted on December 13, 1985, is hereby disapproved: Addition of 
section 1(b)(iii) to Chapter XII which would have allowed personal 
property other than allowed by 30 CFR 800.5 (cash accounts, negotiable 
bonds, certificates of deposit, and letters of credit) to be posted as 
collateral bond.

[51 FR 42218, Nov. 24, 1986, as amended at 52 FR 16847, May 6, 1987; 57 
FR 48991, Oct. 29, 1992; 59 FR 14753, Mar. 30, 1994; 68 FR 62523, Nov. 
5, 2003]



Sec. 950.15  Approval of Wyoming regulatory program amendments.

    The following is a list of the dates amendments were submitted to 
OSM, the dates when the Director's decision approving all, or portions 
of these amendments, were published in the Federal Register and the 
State citations or a brief description of each amendment. The amendments 
in this table are listed in order of the date of final publication in 
the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
March 26, 1981, April 8, 1981........  February 18, 1982......  LQD Rules, Ch I, Sec.  2(14) defining
                                                                 ``complete application;'' Ch II, Sec. Sec.
                                                                 1.c., 2.a.(1)(f)(ii), 3.a(6)(b)(iii), (d)(ii);
                                                                 Ch IV, Sec. Sec.  2.c.(2)(a), 2.d.(6),
                                                                 3.p.(1)(a); sworn applicant statement regarding
                                                                 reclamation fees payment.
May 26, 1982.........................  September 27, 1982.....  LQD Rules, Ch I, Sec.  2(99).
March 3, 8 and 21, 1983..............  November 9, 1983.......  W.S. 35-11-103(e) (xxii), (xxiii) defining
                                                                 ``complete application,'' ``deficiency'' in
                                                                 permit applications, ``interim mine
                                                                 stabilization;'' W.S. 35-11-401(n), 406(h); LQD
                                                                 Rules, Ch I, Sec.  2; Ch XIII, Sec.  2; Ch
                                                                 XVI, Sec. Sec.  1 through 6.
June 25, 1984........................  February 28, 1985......  LQD Rules, Ch IV, Sec. Sec.  1, 2; Ch XII,
                                                                 Sec. Sec.  1 through 7; Ch XVII, Sec. Sec.
                                                                 1 through 3.
September 21, 1984...................  December 3, 1985.......  LQD Rules, Ch I, Sec.  2; Ch XIII.
October 12, 1984.....................  December 13, 1985......  LQD Rules, Ch VI, Sec.  6.
June 19, 1985........................  January 2, 1986........  LQD Rules, Ch X, and accompanying Appendix A.
June 10, 1985........................  March 31, 1986.........  LQD Rules, Ch II, Sec.  3; Ch III, Sec.  2; Ch
                                                                 V, Sec. Sec.  1, 6, 7; Ch VI, Sec. Sec.  2
                                                                 through 5; Ch VII, Sec. Sec.  1 through 4; Ch
                                                                 XI, Sec. Sec.  1 through 4, 6; Ch XVI, Sec.
                                                                 Sec.  1 through 5; Ch XVIII, Sec. Sec.  1
                                                                 through 5.
May 1, 1986..........................  November 24, 1986......  LQD Rules, Chs I, II, III, IV, IX, XII, XIV,
                                                                 XXIII; Appendix A, ``Vegetation Sampling
                                                                 Methods and Reclamation Success Standards for
                                                                 Surface Coal Mining Operations''.
December 13, 1985....................  May 6, 1987............  LQD Rules, Ch XII, ``Self-Bonding Program''.
March 31, 1989.......................  July 25, 1990..........  LQD Rules, Ch I, Sec.  2; Ch II, Sec. Sec.
                                                                 2, 3; Ch IV, Sec. Sec.  2, 3; Ch V, Sec.
                                                                 Sec.  2, 6, 7; Ch VI, Sec. Sec.  3, 4; Ch
                                                                 VII, Sec. Sec.  1, 4; Ch IX, Sec. Sec.  1,
                                                                 2, 3; Ch XI, Sec. Sec.  1, 3; Ch XII, Sec.
                                                                 Sec.  1 through 4, 6; Ch XIII, Sec.  1; Ch
                                                                 XIV, Sec. Sec.  1, 2; Ch XVI, Sec. Sec.  1,
                                                                 3, 4; Ch XVII, Sec. Sec.  1, 2; Ch XVIII,
                                                                 Sec. Sec.  1, 3.
May 1, 1986..........................  January 29, 1991.......  LQD Rules, Ch IV, Sec. Sec.  3(h)(iii)(A),
                                                                 (B); Ch VI, Sec.  3(c)(ii)(C)(I).
March 21, 1991.......................  July 8, 1992...........  W.S. Article 1, subsection 35-11-103(e) (xxvi),
                                                                 (xxvii); Article 4, subsection 35-11-402(b).
June 24, 1991........................  October 29, 1992.......  W.S. 35-11-103(d)(ii)(D); LQD Rules, Ch I, Sec.
                                                                 Sec.  2(br), (ba), 3(b)(i); Ch II, Sec. Sec.
                                                                  3(a)(vi)(E), (M), (b)(xvi)(D), (xx), (v)(C);
                                                                 Ch IV, Sec. Sec.  3(d)(vii), (e)(i)(H); Ch
                                                                 XI, Sec.  2(b)(iv); Ch XII, Sec.  1(a); Ch
                                                                 XIII, Sec.  1(a)(v)(A); Ch XXI, Sec.
                                                                 3(b)(vii), (x).
March 19, 1993.......................  August 23, 1993........  W.S. 35-11-406(h), (j).
July 8, 1992.........................  October 7, 1993........  LQD Rules, Ch II, Sec.  3(b)(iv)(B); Ch IV,
                                                                 Sec.  3(o)(iv); Appendix B, ``Wildlife
                                                                 Monitoring Requirements for Surface Coal Mining
                                                                 Operations''.
July 24, 1992........................  November 2, 1993.......  LQD Rules, Ch I, Sec.  2(e); Ch II, Sec.
                                                                 3(a)(i)(D); Ch XIV, Sec. Sec.  2(b)(i), 6(a).
August 18, 1982, March 9, 1993.......  January 24, 1994.......  W.S. 35-11-437(f); LQD Rules, Ch I, Sec.  2(cv)
                                                                 defining ``toxic materials;'' Ch II, Sec.  7;
                                                                 Ch V pertaining to the award of costs and
                                                                 expenses in administrative proceedings; Ch VI
                                                                 pertaining to informal review by the Director.
December 15, 1992, August 6, 1993....  March 30, 1994.........  LQD Rules, Chs I through XX, Appendices A, B.
May 1, 1986..........................  June 30, 1994..........  LQD Rules, Ch IV, Sec.  2(b)(i).
April 13, 1994.......................  October 21, 1994.......  W.S. 35-11-437(f), (g).
November 8, 1994.....................  March 17, 1995.........  Appendix B, Sec. Sec.  C, E.
June 2, 1995.........................  September 14, 1995.....  W.S. 35-11-406(j).
April 21, 1995.......................  February 21, 1996......  W.S. 35-11-1206(a), (b), -1209(a), (b).

[[Page 699]]

 
November 29, 1995....................  August 6, 1996.........  W.S. 35-11-103(e)(xxviii), (xxix), (xxx); 35-11-
                                                                 402(b), (c); Ch I, Sec.  2(ac), (ax),
                                                                 (bc)(iii), (viii), (xi), (v), (w); Ch. II, Sec.
                                                                   2(a)(vi)(G)(II), (b)(iv)(C); Ch IV, Sec.
                                                                 2(d)(x)(E)(I), (II), (III), appendix A; Ch X,
                                                                 Sec.  4(e); Ch XI, Sec.  5(a); Ch. XIII, Sec.
                                                                   1(a).
April 18, 1996.......................  August 27, 1996........  W.S. 35-11-426(a), (b); 35-11-431(a)(vi).
July 13, 1998........................  October 1, 1999........  Chapter 1, Section 2(ac); Chapter 1, Section
                                                                 2(v); Chapter 2, Section 1(e); Chapter 2,
                                                                 Section 2(a)(vi)(G)(II); Chapter 2, Section
                                                                 2(a)(vi)(H); Chapter 2, Section 2(a)(vi)(J);
                                                                 Chapter 2, Section 2(a)(vi)(J)(II); Chapter 2,
                                                                 Section 2(b)(iv)(C); Chapter 2, Section
                                                                 2(b)(vi)(C); Chapter 4, Section 2(c)(ix);
                                                                 Chapter 4, Section 2(d)(x)(E)(I); Chapter 4,
                                                                 Section e(d)(x)(E)(III); Chapter 8, Sections 3-
                                                                 4-5; Chapter 12, Section 1(a)(iv)(B); Chapter
                                                                 12, Section 1(a)(v)(C); Chapter 12, Section
                                                                 1(b)(ii); Chapter 16, Sections 3 (c) and (f);
                                                                 Appendix A, Appendix IV; Appendix A, Options I-
                                                                 IV; Appendix A, Section II.C.2.c; Appendix A,
                                                                 Section II.C.3; Appendix A, Section VIII.E.
July 20, 2001........................  November 6, 2002.......  Ch. 2, Sec. 2(a)(vi)(L)(III); Ch. 2, Sec.
                                                                 2(a)(vi)(L)(iv); Ch. 2, Sec. 2(a)(vi)(M)(III);
                                                                 Ch. 2, Sec. 2(a)(vi)(M)(III)(4); Ch. 2, Sec.
                                                                 2(a)(vi)(O); Ch. 2, Sec. 2(b)(xi)(D)(I)(1); Ch.
                                                                 2, Sec. 2(b)(xi)(D)(I)(2); Ch. 2, Sec.
                                                                 2(b)(xi)(D)(I)(3); Ch. 2, Sec.
                                                                 2(b)(xi)(D)(II)(1 and 2); Ch. 2, Sec.
                                                                 2(b)(xii); Ch. 3, Sec. 2(c)(viii)(D)-(G); Ch.
                                                                 4, Sec. 2(c)(xii)(D)(iv); Ch. 4, Sec. 2(i)(i);
                                                                 Ch. 4, Sec. 2(w); Appendix A, Appendix IV; 30
                                                                 CFR 950.12(a)(4); 30 CFR 950.16(ii)(2); 30 CFR
                                                                 950.16(jj).
April 30, 2002.......................  May 8, 2003............  Chapter 1, Section 2(by).
                                                                Chapter 4, Section 2(b)(iv).
                                                                Chapter 11, Sections 1(a), 2(a), 3(b), 3(c),
                                                                 4(a).
                                       .......................  Chapter 12, Section 1(b), Section 2(d)(iii).
                                                                Chapter 13, Section 1(a), (b), (c), (d)(iv)(D).
                                                                Chapter 15, Section 7.
November 28, 2002....................  November 5, 2003.......  Chap. 1, Section 2, 2(a), 2(b)
                                                                Chap. 1, Section 2(ah)
                                                                Chap. 1, Section 2(bu)
                                                                Chap. 1, Section 2(bz)
                                                                Chap. 2, Section 2(a) and (b)
                                                                Chap. 2, Section 2(a)(v),
                                                                2(a)(v)(I)(1), 2(b)(iii) and 2(b)(xxi)
                                                                Chap. 2, Section 2(b)(i)(D)(V)
                                                                Chap. 2, Section 2(b)(iv)(G)
                                                                Chap. 2, Section 2(b)(xix)
                                                                Chap. 4, Section 2(c)(i)(A)
                                                                Chap. 4, Section 2(c)(xi)(F)
                                                                Chap. 4, Section 2(c)(xi)(G)
                                                                Chap. 4, Section 2(j)
                                                                Chap. 4, Section 2(j)(i)(A)
                                                                Chap. 4, Section 2(j)(ii)
                                                                Chap. 4, Section 2(j)(iii)
                                                                Chap. 4, Section 2(j)(iii)(B)
                                                                Chap. 4, Section 2(j)(iii)(C)(I)
                                                                Chap. 4, Section 2(j)(iii)(C)(II)
                                                                Chap. 4, Section 2(j)(iii)(C)(III)
                                                                Chap. 4, Section 2(j)(iii)(C)(v)
                                                                Chap. 4, Section 2(j)(iii)(D)
                                                                Chap. 4, Section 2(j)(iv)
                                                                Chap. 4, Section 2(j)(v)
                                                                Chap. 4, Section 2(j)(vi)
                                                                Chap. 4, Section 2(j)(vii)
                                                                Chap. 4, Section 2(j)(viii)
                                                                Chap. 4, Section 2(m)
                                                                Chap. 4, Section 2(n)(ii)(B)(2)
                                                                Chap. 4, Section 2(x)
                                                                Chap. 5, Section 7(a)(ii)
                                                                Chap. 12, Section 1(a)(v)
                                                                Chap. 18, Section 3(c)(xvii), Section
                                                                 3(d)(vi)(A), Section 3(d)(x)
                                                                Appendix A, Appendix IV
May 21, 2004.........................  April 4, 2005..........  Coal Rules: Chapter 1, sections 2(l) and (ce);
                                                                 chapter 4, sections 2(b)(iv)(A), (b)(ix),
                                                                 (b)(ix)(A), (B), and (C); Chapter 10, sections
                                                                 1, 1(b)(iii), 2(b), (b)(i), (ii), (iii), (iv),
                                                                 (v), (vi), (vii), (viii), (ix), (x), (xi), and
                                                                 (xii), 3(b), 4(e), 8, 8(a), 8(b), (b)(i), (ii),
                                                                 (ii)(A), (ii)(B), (ii)(C), (iii), and (iv).

[[Page 700]]

 
October 24, 2005.....................  August 28, 2006........  Chapter 4, Section 2(b)(iv)
                                                                Chapter 4, Section 2(d)(ix)
                                                                Chapter 4, Section 2(d)(x)
                                                                Chapter 4, Section 2(d)(x), Appendix A,
                                                                 Subsection III.A; VII.E; VIII.A & VIII.F
                                                                Chapter 4, Section 2(d)(x)(E)(I)&(II)
                                                                Chapter 4, Section 2(d)(x)(E)(III) & (F)
                                                                Chapter 4, Section 2(d)(x)(J)
                                                                Chapter 4, Section 2(d)(xiv)
                                                                Chapter 15, Section 1(a)
                                                                Chapter 15, Section 1(b)
March 7, 2006........................  October 14, 2009.......  Chapter 11, Section 2(a)(vii)(A).
October 15, 2009.....................  June 14, 2011..........  Chap. 1, Section 2(f);
                                                                Chap. 1, Section 2(j);
                                                                Chap. 1, Section 2(k);
                                                                Chap. 1, Section 2(l);
                                                                Chap. 1, Section 2(m);
                                                                Chap. 1, Section 2(n);
                                                                Chap. 1, Section 2(p);
                                                                Chap. 1, Section 2(r);
                                                                Chap. 1, Section 2(s);
                                                                Chap. 1, Section 2(z);
                                                                Chap. 1, Section 2(aa);
                                                                Chap. 1, Section 2(ab);
                                                                Chap. 1, Section 2(ae);
                                                                Chap. 1, Section 2(ak);

[[Page 701]]

 
                                       .......................  Chap. 1, Section 2(am);
                                                                Chap. 1, Section 2(ao);
                                                                Chap. 1, Section 2(ap);
                                                                Chap. 1, Section 2(as);
                                                                Chap. 1, Section 2(az);
                                                                Chap. 1, Section 2(bd);
                                                                Chap. 1, Section 2(be);
                                                                Chap. 1, Section 2(bf);
                                                                Chap. 1, Section 2(bg);
                                                                Chap. 1, Section 2(bm);
                                                                Chap. 1, Section 2(bs);
                                                                Chap. 1, Section 2(bu);
                                                                Chap. 1, Section 2(bv);
                                                                Chap. 1, Section 2(by)(ii);
                                                                Chap. 1, Section 2(bz);
                                                                Chap. 1, Section 2(ca);
                                                                Chap. 1, Section 2(cb);
                                                                Chap. 1, Section 2(cc);
                                                                Chap. 1, Section 2(cg);
                                                                Chap. 1, Section 2(cj);
                                                                Chap. 1, Section 2(cl);
                                                                Chap. 1, Section 2(cm);
                                                                Chap. 1, Section 2(co);
                                                                Chap. 1, Section 2(cs);
                                                                Chap. 1, Section 2(cu);
                                                                Chap. 1, Section 2(cx);
                                                                Chap. 1, Section 2(da);
                                                                Chap. 1, Section 2(df);
                                                                Chap. 1, Section 2(dg);
                                                                Chap. 1, Section 2(dh);
                                                                Chap. 1, Section 2(di);
                                                                Chap. 1, Section 2(dl);
                                                                Chap. 1, Section 2(dm);
                                                                Chap. 1, Section 2(dp);
                                                                Chap. 1, Section 2(ds);
                                                                Chap. 1, Section 2(dt);
                                                                Chap. 1, Section 2(dv);
                                                                Chap. 1, Section 2(dw);
                                                                Chap. 1, Section 2(dx);
                                                                Chap. 1, Section 2(dy);
                                                                Chap. 1, Section 2(dz);
                                                                Chap. 1, Section 2(ef);
                                                                Chap. 1, Section 2(eg);
                                                                Chap. 1, Section 2(el);
                                                                Chap. 1, Section 2(eo);
                                                                Chap. 1, Section 2(es);
                                                                Chap. 1, Section 2(eu);
                                                                Chap. 1, Section 2(ex);
                                                                Chap. 1, Section 2(ey);
                                                                Chap. 1, Section 2(ez);
                                                                Chap. 1, Section 2(fe);
                                                                Chap. 1, Section 2(ff);
                                                                Chap. 1, Section 2(fm);
                                                                Chap. 1, Section 2(fn);
                                                                Chap. 2, Section 2(b)(iv)(C);
                                                                Chap. 2, Section 2(c)(xii)(D)(II);
                                                                Chap. 2, Section 3(a)-(m);
                                                                Chap. 2, Section 6(b)(iii)(D);
                                                                Chap. 2, Section 6(b)(iii)(E)(VIII);
                                                                Chap. 2, Section 6(b)(iii)(G);
                                                                Chap. 4, Section 2(c)(xii)(D)(II)
                                                                Chap. 4, Section 2(d)(i)(G);
                                                                Chap. 4, Section 2(d)(i)(I);
                                                                Chap. 4, Section 2(d)(i)(M)(I) and (III)-(XI);
                                                                Chap. 4, Section 2(d)(i)(N);
                                                                Chap. 4, Section 2(g)(iv)(L)
                                                                Chap. 4, Section 2(g)(iv)(M);
                                                                Chap. 4, Section 2(g)(v)(A);
                                                                Chap. 4, Section 2(g)(v)(B);
                                                                Chap. 5, Section 2(b) (iii);
                                                                also all minor, editorial, and codification
                                                                 changes and all reorganized or relocated rules.
----------------------------------------------------------------------------------------------------------------


[[Page 702]]


[62 FR 9958, Mar. 5, 1997, as amended at 64 FR 53208, Oct. 1, 1999; 67 
FR 67547, Nov. 6, 2002; 68 FR 24652, May 8, 2003; 68 FR 62523, Nov. 5, 
2003; 70 FR 16954, Apr. 4, 2005; 71 FR 50855, Aug. 28, 2006; 74 FR 
52685, Oct. 14, 2009; 76 FR 34835, June 14, 2011]



Sec. 950.16  Required program amendments.

    Pursuant to 30 CFR 732.17 Wyoming is required to submit for OSMRE's 
approval the following proposed program amendments by the dates 
specified.
    (a) -(c) [Reserved]
    (d) By September 24, 1990, Wyoming shall submit a revision to its 
permanent program rules at chapter IV, section 3(i) or otherwise propose 
to amend its program to require a quarterly ground water monitoring for 
surface and underground coal mining operations.
    (e) By September 24, 1990, Wyoming shall submit a revision to its 
permanent program rules at chapter IV, section 3(u) or otherwise propose 
to amend its program to give the State the authority to require 
additional preventive, remedial, or monitoring measures to assure that 
material damage to the hydrologic balance outside the permit area is 
prevented with regard to both surface and underground coal mining 
operations.
    (f)--(g) [Reserved]
    (h) By June 30, 1987, Wyoming shall submit revisions of the LQD 
rules at Chapter II section 3(a)(vi)(J)(II) or otherwise propose to 
amend its program to provide that the groundwater quality description in 
a permit application must include pH.
    (i) By June 30, 1987, Wyoming shall submit revisions to the LQD 
rules at Chapter II section 3(b)(ix)(D) or otherwise propose to amend 
its program to specify the minimum groundwater quality parameters that 
must be monitored.
    (j)-(o) [Reserved]
    (p) By September 8, 1992, Wyoming shall submit a proposed revision 
to chapter II, section 3(b)(iv)(A) of the Rules and Regulations of the 
Land Quality Division of the Department of Environmental Quality, or 
otherwise propose to amend its program, to specify that, when fish and 
wildlife enhancement measures are not included in a proposed permit 
application, the applicant must provide a statement explaining why such 
measures are not practicable. In addition, this rule must be revised to 
clarify that fish and wildlife enhancement measures are not limited to 
revegetation efforts.
    (q) [Reserved]
    (r) By December 28, 1992, Wyoming shall submit revisions to the LQD 
Rule at Chapter II, Section 3(a)(v)(A)(II), to either reinstate the 
removed cited reference ``disposal of non-coal wastes shall be in 
accordance with the standards set out in Section 11, paragraph c., Solid 
Waste Management Rules and Regulations (1980)'' or otherwise amend its 
program to render it no less effective than the Federal regulations at 
30 CFR 816.89 and 817.89.
    (s) By December 28, 1992, Wyoming shall submit revisions to the LQD 
Rules at Chapter II, Section 3(b)(xxii) and Chapter IV, Section 
3(c)(iii)(D), to include specific performance standards for non-coal 
waste disposal that are no less effective than the Federal regulations 
at 30 CFR 816.89 and 817.89.
    (t) By December 28, 1992, Wyoming shall submit revisions to the LQD 
Rules at Chapter II, Section 2(b)(iii)(I); Chapter II, Section 
3(b)(xxi); Chapter IV, Section 2(c)(v); and Chapter IV, Section 
3(c)(iii)(C), to provide standards for non-coal waste disposal that are 
no less effective than the Federal regulation requirements at 30 CFR 
816.89 and 817.89.
    (u) By December 28, 1992, Wyoming shall submit revisions to the LQD 
Rules at Chapter II, Section 3(a)(vi)(M), to amend its regulations 
regarding procedures, including notice and opportunity to be heard for 
persons seeking disclosure, to ensure confidentiality of qualified 
information, which shall be clearly identified by the applicant and 
submitted separately from the remainder of the application, to be no 
less effective than the Federal regulations 30 CFR 773.13(d)(3).
    (v)-(ll) [Reserved]

[51 FR 10832, Mar. 31, 1986]

    Editorial Note: For Federal Register citations affecting Sec. 
950.16, see the List of CFR Sections Affected, which appears in the

[[Page 703]]

Finding Aids section of the printed volume and at www.fdsys.gov.



Sec. 950.20  State-Federal Cooperative Agreement.

    The Governor of the State of Wyoming (State) acting by and through 
the Department of Environmental Quality, Land Quality Division 
(Division), and the Secretary of the Department of the Interior 
(Department) acting by and through the Office of Surface Mining 
Reclamation and Enforcement (OSMRE), enter into a Cooperative Agreement 
(Agreement) to read as follows:

                   Article I: Introduction and Purpose

    1. This Agreement is authorized by section 523(c) of the Surface 
Mining Control and Reclamation Act of 1977 (Act), 30 U.S.C. 1273(c), 
which allows a State with a permanent regulatory program approved under 
30 U.S.C. 1253 to elect to enter an Agreement with the Secretary for the 
regulation and control of surface coal mining and reclamation operations 
on Federal lands.
    This Agreement provides for State regulation of coal exploration 
operations not subject to 43 CFR parts 3480 through 3487 and surface 
coal mining and reclamation operations in Wyoming subject to the Federal 
lands program (30 CFR parts 740 through 746) consistent with the Act, 
the Wyoming Environmental Quality Act (W.S. 35-11-401-437), and the 
Wyoming State Program (Program).
    2. The purposes of this Agreement are to (a) foster Federal-State 
cooperation in the regulation of surface coal mining and reclamation 
operations and coal exploration operations not subject to 43 CFR parts 
3480 through 3487; (b) eliminate intergovernmental overlap and 
duplication; and (c) provide uniform and effective application of the 
Program in Wyoming, in accordance with the Act.

                       Article II: Effective Date

    3. This Agreement shall take effect following signing by the 
Secretary and the Governor, and thirty days after publication as a final 
rule in the Federal Register. This Agreement shall remain in effect 
until terminated as provided in Article X.

                           Article III: Scope

    4. In accordance with the Federal lands regulations in 30 CFR parts 
740 through 746, the laws, regulations, terms and conditions of the 
Wyoming State Program, as approved or as amended in accordance with 30 
CFR part 732, are applicable to lands in Wyoming subject to the Federal 
lands program except as otherwise stated in this Agreement, the Act, 30 
CFR part 745, or other applicable laws or regulations. Orders and 
decisions issued by the State in accordance with the Program that are 
appealable shall be appealed as provided for by State law. Orders and 
decisions issued by the Department that are administratively appealable 
shall be appealed to the Department's Office of Hearings and Appeals.

               Article IV: Requirements for the Agreement.

    5. The Governor and the Secretary affirm that they will comply with 
all of the provisions of this Agreement and will continue to meet all 
the conditions and requirements specified in this Article.
    (a) Responsible Administrative Agency. The Division shall be 
responsible for administering this Agreement on behalf of the Governor. 
OSMRE shall administer this Agreement on behalf of the Secretary, in 
accordance with the regulations in 30 CFR Chapter VII.
    (b) Authority of State. The State has and shall continue to have 
authority under State law to carry out this Agreement.
    (c) Funds. The State will devote adequate funds to the 
administration and enforcement on Federal lands in the State of the 
requirements contained in the Program. If the State complies with the 
terms of this Agreement, and if necessary funds have been appropriated, 
the Department shall reimburse the State as provided in section 705(c) 
of the Act, the grant agreement, and 30 CFR 735.16 for costs associated 
with carrying out responsibilities under this Agreement. Reimbursements 
shall be in the form of annual grants and grant amendments, and 
applications for said grants shall be processed and awarded in a timely 
and prompt manner. If sufficient funds have not been appropriated to 
OSMRE or the State, the parties shall promptly meet to decide on 
appropriate measures that will ensure that surface coal mining and 
reclamation operations and exploration operations on Federal lands are 
regulated in accordance with the Program. If agreement cannot be 
reached, then either party may terminate the Agreement.
    (d) Reports and Records. The State shall make annual reports to 
OSMRE containing information with respect to compliance with the terms 
of this Agreement pursuant to 30 CFR 745.12(d). Upon request, the State 
and OSMRE shall exchange (except where prohibited by Federal law) 
information developed under this Agreement. OSMRE shall provide the 
State with a copy of any final evaluation report prepared concerning 
State administration and enforcement of this Agreement.
    (e) Personnel. The State shall have the necessary personnel to fully 
implement this Agreement in accordance with the provisions of the Act 
and the Program.
    (f) Equipment and Laboratories. The State shall have access to 
equipment, laboratories,

[[Page 704]]

and facilities with which all inspections, investigations, studies, 
tests and analyses can be performed and which are necessary to carry out 
the requirements of this Agreement.
    (g) Permit Application Fees. The amount of the fee accompanying an 
application for a permit shall be determined in accordance with W.S. 35-
11-406(a)(xii). All permit fees shall be retained by the State and 
deposited with the State Treasurer in the General Fund. The Financial 
Status Report submitted pursuant to 30 CFR 735.26 shall include a report 
of the amount of permit application fees collected and attributable to 
Federal lands during the prior Federal fiscal year. This amount shall be 
disposed of in accordance with Federal regulations and OMB Circular No. 
A-102, Attachment E.

  Article V: Policies and Procedures: Permit Application Package Review

    6. The State and OSMRE agree and hereby require that an applicant 
proposing to conduct surface coal mining operations on lands subject to 
the Federal lands program shall submit a permit application package 
(PAP) in an appropriate number of copies to the State and OSMRE. If any 
material is submitted to the State by an applicant for the sole purpose 
of complying with the 3-year requirement of section 7(c) of the Mineral 
Leasing Act of 1920, 30 U.S.C. 181 et seq., the State will forward such 
material through OSMRE to the Bureau of Land Management (BLM). If the 
material is submitted as part of the PAP, a copy of the entire package 
will be sent through OSMRE to BLM. The PAP shall be in the form required 
by the State, and shall include any supplemental information required by 
OSMRE. The PAP shall include the information required by, or necessary 
for, the State and the Secretary to make a determination of compliance 
with:
    (a) W.S. 35-11-406(a) and (b) (1980);
    (b) Chapter II, Land Quality Division Rules and Regulations, 
Department of Environmental Quality, or other chapters where these may 
supersede Chapter II;
    (c) Applicable terms and conditions of the Federal coal lease; and
    (d) Applicable requirements of the Program, and other Federal laws 
and regulations, including, but not limited to those listed in Appendix 
A.
    7. a. State Responsibility. The State shall assume primary 
responsibility for the analysis, review, and approval or disapproval of 
the permit application component of the PAP for surface coal mining and 
reclamation operations on lands subject to the Federal lands program.
    b. OSMRE Responsibility. (1) OSMRE will, at the request of the 
State, assist the State in its analysis and review of the PAP. (2) The 
Department shall concurrently carry out its responsibilities which 
cannot be delegated to the State under the Act, the Mineral Leasing Act 
(MLA), as amended, the National Environmental Policy Act (NEPA), and 
other applicable Federal laws (including but not limited to these in 
Appendix A). The Department shall carry out those responsibilities in 
accordance with the Federal lands program and this Agreement in a timely 
manner so as to eliminate, to the maximum extent possible, duplication 
of the responsibilities of the State set forth in this Agreement and the 
Program. The Secretary will consider the information in the PAP and, 
where appropriate, make decisions required by the Act, MLA, NEPA, and 
other Federal laws.
    c. Responsibility for Handling Other Federal Laws. The State must 
consider the comments of Federal agencies in the context of permit 
issuance and will document these comments in the record of permit 
decisions. Permits issued by the State shall include, to the extent 
allowed by Wyoming law, terms and conditions required by the lease 
issued pursuant to the Mineral Leasing Act and by other applicable 
Federal laws and regulations in accordance with 30 CFR 740.13(c)(1). 
When Federal agencies recommend permit conditions and these conditions 
are not adopted, the State will provide OSMRE with documentation as to 
why they were not incorporated as permit conditions.
    Upon notification from the State that certain permit conditions are 
not incorporated, OSMRE will determine whether such conditions are 
necessary and may be attached to other Federal authorizations. If not 
other Federal authorizations are required, then OSMRE may issue a 
supplemental SMCRA permit attaching only those conditions which are 
necessary to assure compliance with other Federal laws. The State shall 
not be required to enforce the conditions of the Federal permit.
    d. Working Agreements. Responsibilities and decisions which can and 
cannot be delegated to the State under the Act and other applicable 
Federal laws may be specified in working agreements between OSMRE and 
the State with the concurrence of any Federal agency involved, and 
without amendment to this Agreement.
    8. The State will be the primary point of contact for applicants 
regarding the review of the PAP, except on matters concerned exclusively 
with the regulations in 43 CFR parts 3480-3487 administered by the BLM 
and on matters unrelated to the review of the PAP. The State will be 
responsible for informing the applicant of any joint State-Federal 
determinations. The State shall send to OSMRE copies of any 
correspondence with the applicant and any information received from the 
applicant which may have a bearing on decisions regarding the PAP. OSMRE 
would not independently initiate contacts with applicants regarding 
completeness or

[[Page 705]]

deficiencies of the PAP with respect to matters covered by the Program; 
however, the Department reserves the right to act independently of the 
State to carry out its responsibilities under laws other than the Act or 
provisions of the Act not covered by the Program, and in instances of 
disagreement over the Act and the Federal lands program. OSMRE shall 
send to the State copies of all independent correspondence with the 
applicant which may have a bearing on decisions regarding the PAP.
    9. The State shall assume the responsibilities listed in 30 CFR 
740.4(c)(1), (4), (5), (6), and (7). OSMRE will retain the 
responsibilities listed in 30 CFR 740.4(c)(2), (3) and the exceptions in 
30 CFR 740.4(c)(7)(i)-(vii). In addition to the procedures outlined in 
paragraphs 9, 10, and 11, OSMRE shall assist the State in carrying out 
its responsibilities by:
    (a) Distributing copies of the PAP to, and coordinating the review 
of the PAP among all Federal agencies which have responsibilities 
relating to decisions on the package. This shall be done in a manner 
which ensures timely identification, communication and resolution of 
issues relating to those Federal agencies' statutory requirements. OSMRE 
shall request that such other Federal agencies furnish their findings or 
any requests for additional data to OSMRE within 45 calendar days of the 
date OSMRE transmits to them a copy of the PAP.
    (b) Providing the State with the analyses and conclusions of other 
Federal agencies regarding those portions of the PAP which affect their 
statutory responsibilities.
    (c) Resolving conflicts and difficulties between or among other 
Federal agencies in a timely manner.
    (d) Assisting in scheduling joint meetings as necessary between 
State and Federal agencies.
    (e) Where OSMRE is assisting the State in reviewing the permit 
application, furnishing the State with the work product within 45 
calendar days of receipt of the State's request for such assistance, or 
earlier if mutually agreed upon by OSMRE and the State.
    (f) Exercising its responsibilities in a timely manner as set forth 
in a mutually agreed upon schedule, governed to the extent possible by 
the deadlines established in the Program.
    (g) Assuming all responsibility for ensuring compliance with any 
Federal lessee protection bond requirement.
    10. This paragraph describes the procedures that OSMRE and the State 
will follow in the review of a PAP for surface coal mining and 
reclamation operations where a mining plan is required under the Mineral 
Leasing Act:
    (a) OSMRE and the State shall coordinate with each other during the 
review process as needed. The State shall keep OSMRE informed of 
findings made during the review process which bear on the 
responsibilities of OSMRE and other Federal agencies. OSMRE shall ensure 
that any information OSMRE receives which has a bearing on decisions 
regarding the PAP is promptly sent to the State.
    (b) The State shall review the PAP for compliance with the Program 
and State laws and regulations.
    (c) OSMRE shall review the appropriate portions of the PAP for 
compliance with the non-delegable responsibilities of the Act and the 
requirements of other Federal laws and regulations consistent with 
paragraphs 7 and 8 of this Agreement.
    (d) OSMRE and the State shall develop a work plan and schedule for 
PAP review and each shall identify a person as project leader. The State 
and OSMRE project leaders shall serve as the primary point of contact 
between OSMRE and the State throughout the review process. Not later 
than 50 days after receipt, OSMRE shall furnish the State with its 
preliminary findings and specify any requirements for additional data. 
OSMRE shall advise the State on the need for it to perform any work as 
part of the preparation of an Environmental Impact Statement as soon as 
possible in the review process.
    (e) The State shall prepare a State decision package on the PAP. To 
the fullest extent allowed by the State and Federal law and regulations, 
the State and OSMRE will cooperate so that duplication will be 
eliminated in conducting the technical analyses and meeting NEPA 
requirements for the proposed mining operation. Copies of the draft 
State decision package shall be sent to OSMRE for review and comment. 
OSMRE shall evaluate the package and inform the State within 30 days, 
whenever possible, of any changes that should be made. The State shall 
consider these comments and send a final State decision package to OSMRE 
for action in a timely manner consistent with the Federal lands program. 
OSMRE shall have 30 days after receipt to request any changes to the 
State's final decision package.
    (f) The State may proceed to issue the permit in accordance with the 
Program prior to the necessary Secretarial approval, provided that the 
State advises the permittee in the permit of the necessity for 
Secretarial approval of a mining plan prior to beginning operations to 
mine Federal coal. The State shall reserve the right to amend or rescind 
any requirements of the approved permit to conform with any terms or 
conditions imposed by the Secretary in his approval of the mining plan.
    11. This paragraph describes the procedures that the State and OSMRE 
will follow in processing a PAP for surface coal mining and reclamation 
operations which does not require Secretarial approval of a mining plan 
under the Mineral Leasing Act:

[[Page 706]]

    (a) Upon receipt of a PAP for such operations, OSMRE shall consult 
with and obtain the determinations or conditions of any other Federal 
agencies with jurisdiction or responsibility over Federal lands affected 
by the operations proposed in the PAP. To the extent possible, these 
determinations and conditions and any determinations required by OSMRE 
pursuant to section 522 of the Act, shall be forwarded to the State 
within the time frame allowed by State law for processing permit 
applications.
    (b) The State shall review the PAP for compliance with the Program 
and State laws and regulations.
    (c) The State may proceed to issue the permit.
    (d) After issuing the permit, the State shall send OSMRE and the 
Federal land management agency a copy of the signed permit form and 
State decision package.
    12. The following procedures will be used in processing permit 
revisions or renewals:
    (a) Any permit revision or renewal for operations on lands subject 
to the Federal lands program shall be reviewed and approved or 
disapproved by the State after consultation with OSMRE on whether the 
revision or renewal constitutes a mining plan modification under 30 CFR 
746.18. OSMRE shall inform the State within 30 days of receiving a copy 
of a proposed revision or renewal, whether it constitutes a mining plan 
modification. Where approval of a mining plan modification is required, 
OSMRE and the State will follow the procedures outlined in paragraph 10 
of this Article.
    (b) Permit revisions or renewals for operations not constituting a 
mining plan modification and not meeting the criteria that may be 
established under (c) of this paragraph shall be reviewed and approved 
or disapproved following the procedures outlined in paragraph 11 of this 
Article.
    (c) OSMRE may establish criteria to determine which types of permit 
revisions and renewals do not constitute mining plan modifications and 
will not affect the non-delegable responsiblities of OSMRE and other 
Federal agencies. Revisions or renewals meeting such criteria may be 
approved by the State prior to informing OSMRE of the approval and 
submission of copies of the revision or renewal to OSMRE.

                         Article VI: Inspections

    13. The State shall conduct inspections on lands subject to the 
Federal lands program and prepare and file inspection reports in 
accordance with the Program.
    14. The State shall, subsequent to conducting any inspection, and on 
a timely basis, file with the Secretary an inspection report adequately 
describing (1) the general conditions of the lands under the permit and 
license; (2) the manner in which the operations are being conducted; and 
(3) whether the operator is complying with applicable performance and 
reclamation requirements.
    15. The State will be the point of contact and the inspection 
authority in dealing with the operator concerning operations and 
compliance with the requirements covered by this Agreement, except as 
described hereinafter. Nothing in this Agreement shall prevent 
inspections by authorized Federal or State agencies for purposes other 
than those covered by this Agreement. The Department may conduct any 
inspections necessary to comply with 30 CFR part 842 and 30 CFR 
843.12(a)(2) and its obligations under laws other than the Act.
    16. OSMRE shall give the State reasonable notice of its intent to 
conduct an inspection in order to provide State inspectors with an 
opportunity to join in the inspection. When the Department is responding 
to a citizen complaint of an imminent environmental danger or a threat 
to human health pursuant to 30 CFR part 842.11(b)(1)(ii)(C), it will 
contact the State no less than 24 hours if practicable, prior to the 
Federal inspection to facilitiate a joint Federal/State inspection. The 
Secretary reserves the right to conduct inspections without prior notice 
to the State as necessary to carry out his responsibilities under the 
Act.
    17. Personnel of the State and representatives of the Department 
shall be mutually available to serve as witnesses in enforcement actions 
taken by either party.

                        Article VII: Enforcement

    18. The State shall have primary enforcement authority under the Act 
concerning compliance with the requirements of this Agreement and the 
Program.
    19. During any joint inspection by the Department and the State, the 
State shall have primary responsibility for enforcement procedures, 
including issuance of orders of cessation, notices of violation, and 
assessment of penalties. The Department and the State shall consult 
prior to issuance of any decision to suspend or revoke a permit.
    20. During any inspection made solely by the Department or any joint 
inspection where the State and the Department fail to agree regarding 
the propriety of any particular enforcement action, the Department may 
take any enforcement action necessary to comply with 30 CFR parts 843 
and 845. Such enforcement action shall be based on the standards in the 
Program, the Act, the permit, or all three, and shall be taken using the 
procedures and penalty system contained in 30 CFR parts 843 and 845.
    21. The State and the Department shall promptly notify each other of 
all violations of applicable laws, regulations, orders, or approved 
mining plans and permits subject to this Agreement, and of all actions 
taken with respect to such violations.

[[Page 707]]

    22. This Agreement does not affect or limit the Secretary's 
authority to enforce violations of Federal laws other than the Act.

                           Article VIII: Bonds

    23. The State and the Secretary shall require each operator on lands 
subject to the Federal lands program to submit a single performance bond 
payable to both the United States and the State of Wyoming that is 
sufficient to cover the operator's responsibilities under the Act and 
the program. Such performance bond shall be conditioned upon compliance 
with requirements of the Program, the Act and the permit. Such bond 
shall provide that if this Agreement is terminated, the bond shall be 
payable only to the United States to the extent that lands covered by 
the Federal lands program are involved.
    24. Prior to releasing the operator from any obligation under a bond 
required by the Program on lands subject to the Federal lands program, 
the State shall obtain the concurrence of the Department. Departmental 
concurrence shall be based on field measurements, observations, and 
coordination with other Federal agencies having authority over the 
affected lands. The State shall also advise the Department annually of 
adjustments to the bond pursuant to the Program.
    25. Performance bonds shall be subject to forfeiture, with the 
concurrence of the Department, in accordance with the procedures and 
requirements of the Program.

           Article IX: Designation of Land Areas as Unsuitable

    26. The State and OSMRE shall cooperate with each other in the 
review and processing of petitions to designate lands as unsuitable for 
surface coal mining operations. When either agency receives a petition 
that could impact adjacent Federal or non-Federal lands, the agency 
receiving the petition shall (1) notify the other of receipt and of the 
anticipated schedule for reaching a decision; and (2) request and fully 
consider data, information and views of the other.
    27. The authority to designate State and private lands as unsuitable 
for mining is reserved to the State. The authority to designate Federal 
lands as unsuitable for mining is reserved to the Secretary or his 
designated representative.

             Article X: Termination of Cooperative Agreement

    28. This Agreement may be terminated by the Governor or the 
Secretary under the provisions of 30 CFR 745.15.

           Article XI: Reinstatement of Cooperative Agreement

    29. If this Agreement has been terminated in whole or in part, it 
may be reinstated under the provisions of 30 CFR 745.16.

            Article XII: Amendments of Cooperative Agreement

    30. This Agreement may be amended by mutual agreement of the 
Governor and the Secretary in accordance with 30 CFR 745.14.

           Article XIII: Changes in State or Federal Standards

    31. The Department or the State may promulgate new or revised 
performance or reclamation requirements or administration and 
enforcement procedures. OSMRE and the State shall immediately inform 
each other of any final changes and of any effect such changes may have 
on this Agreement. If it is determined to be necessary to keep this 
Agreement in force, the State shall take legislative action and each 
party shall change or revise its regulations or promulgate new 
regulations, as applicable. Such changes shall be made under the 
procedures of 30 CFR part 732 for changes to the Program and sections 
501 and 523 of the Act for changes to the Federal lands program.
    32. The State and the Department shall provide each other with 
copies of any changes to their respective laws, rules, regulations, and 
standards pertaining to the enforcement and administration of this 
Agreement.

           Article XIV: Changes in Personnel and Organization

    33. The State and the Department shall, consistent with 30 CFR part 
745, advise each other of changes in organization, structure, functions, 
duties and funds of the offices, departments, divisions, and persons 
within their organizations. Each shall promptly advise the other in 
writing of changes in key personnel, including the heads of a department 
or division, or changes in the functions or duties of persons occupying 
the principal offices within the structure of the Program. The State and 
the Department shall advise each other in writing of changes in the 
location of offices, addresses, telephone numbers, and changes in the 
names, locations and telephone numbers of their respective mine 
inspectors and the area within the State for which such inspectors are 
responsible.

                    Article XV: Reservation of Rights

    34. In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that have 
not been expressly addressed in

[[Page 708]]

this Agreement, that the State or the Secretary may have under other 
laws or regulations, including the Surface Mining Control and 
Reclamation Act of 1977, the Mineral Leasing Act, as amended, the 
Mineral Leasing Act for Acquired Lands, the Stockraising Homestead Act, 
the Federal Land Policy and Management Act, other Federal laws including 
but not limited to those listed in Appendix A, the Constitution of the 
United States, and the Constitution of the State or State laws.

                        Article XVI: Definitions

    35. Terms and phrases used in this Agreement which are defined in 30 
CFR Parts 700, 701 and 740, or the Program shall be given the meanings 
set forth in said definitions. Where there is a conflict between any 
definitions, the definitions used in the Program will apply except in 
the case of a term which conflicts with the Secretary's remaining 
responsibilities under the Act and other laws.

                               Appendix A

    (1) Surface Mining Control and Reclamation Act, 30 U.S.C. 1201 et 
seq., and implementing regulations.
    (2) The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    (3) The Mineral Leasing Act of 1920, 30 U.S.C. et seq., and 
implementing regulations including 43 CFR part 3480 et seq.
    (4) The Mineral Leasing Act for Acquired Lands of 1947, as amended, 
30 U.S.C. 351 et seq., and implementing regulations.
    (5) The National Environmental Policy Act of 1969, 42 U.S.C. 4312 et 
seq., and implementing regulations including 40 CFR part 1500 et seq.
    (6) The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations including 50 CFR part 402.
    (7) The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations including 36 CFR part 800 and 
Executive Order 11593 (May 13, 1971).
    (8) The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    (9) The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
    (10) The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
    (11) The Reservoir Salvage Act of 1960, amended by the Preservation 
and Historical and Archaelogical Data Act of 1974, 16 U.S.C. 469 et seq.
    (12) Executive Order 11988 (May 24, 1977) for floodplain protection. 
Executive Order 11990 (May 24, 1977) for wetland protections.
    (13) The Fish and Wildlife Coordination Act, as amended, 16 U.S.C. 
661-667.
    (14) The Bald and Golden Eagle Protection Act of 1940, as amended, 
16 U.S.C. 668-668d, and implementing regulations.
    (16) The Migratory Bird Treaty Act, as amended, 16 U.S.C. 701-718h.

[51 FR 45089, Dec. 16, 1986]



Sec. 950.30  Approval of Wyoming abandoned mine land reclamation plan.

    The Wyoming Abandoned Mine Land Reclamation Plan, as submitted on 
August 16, 1982, and as subsequently revised, is approved effective 
February 14, 1983. Copies of the approved program are available at:

Casper Field Office, Office of Surface Mining Reclamation and 
Enforcement, 100 East B Street, room 2128, Casper, WY 82601-1918.
State of Wyoming, Department of Environmental Quality, Abandoned Mine 
Lands Division, Herschler Building, Third Floor West, 122 West 25th 
Street, Cheyenne, WY 82002.

[57 FR 12733, Apr. 13, 1992]



Sec. 950.35  Approval of Wyoming abandoned mine land reclamation plan 

amendments.

    (a) Wyoming certification of completing all known coal-related 
impacts is accepted, effective May 25, 1984.
    (b) The following is a list of the dates amendments were submitted 
to OSM, the dates when the Director's decision approving all, or 
portions of these amendments, were published in the Federal Register and 
the State citations or a brief description of each amendment. The 
amendments in this table are listed in order of the date of final 
publication in the Federal Register.

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
December 16, 1991....................  April 13, 1992.........  W.S. 35-11-1201 through 1304; Chs I through VIII
                                                                 of State's AML rules.
April 21, 1995.......................  February 21, 1996......  W.S. 35-11-1206(a), (b); -1209(a), (b).
September 1, 2005....................  March 23, 2006.........  W.S. 35-11-1206(a).
                                                                W.S. 35-11-1206(b).
                                                                W.S. 35-11-1209.
                                                                W.S. 35-11-1209(vii).
March 21, 2008.......................  October 3, 2008........  W.S. 35-11-1210(b)
----------------------------------------------------------------------------------------------------------------


[[Page 709]]


[62 FR 9959, Mar. 5, 1997, as amended at 71 FR 14645, Mar. 23, 2006; 73 
FR 57541, Oct. 3, 2008]



Sec. 950.36  Required abandoned mine land plan amendments. [Reserved]



PART 955_CERTIFICATION OF BLASTERS IN FEDERAL PROGRAM STATES AND ON INDIAN 

LANDS--Table of Contents



Sec.
955.1 Scope.
955.2 Implementation.
955.5 Definitions.
955.10 Information collection.
955.11 General requirements.
955.12 Training.
955.13 Application.
955.14 Examination.
955.15 Certification.
955.16 Reciprocity.
955.17 Suspension and revocation.

    Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.), sec. 955.13 also 
issued under sec. 9701, Pub. L. 97-258 (31 U.S.C. 9701).

    Source: 51 FR 19462, May 29, 1986, unless otherwise noted.



Sec. 955.1  Scope.

    This part establishes rules pursuant to part 850 of this chapter for 
the training, examination and certification of blasters by OSM for 
surface coal mining operations in States with Federal programs and on 
Indian lands. It governs the issuance, renewal, reissuance, suspension 
and revocation of an OSM blaster certificate, replacement of a lost or 
destroyed certificate, and reciprocity to a holder of a certificate 
issued by a State regulatory authority.



Sec. 955.2  Implementation.

    In accordance with Sec. Sec. 750.19, 816.61(c) and 817.61(c) of 
this chapter, after June 30, 1987, in Federal program States and on 
Indian lands any person who is responsible for conducting blasting 
operations at a blasting site shall have a current OSM blaster 
certificate.



Sec. 955.5  Definitions.

    As used in this part:
    Applicant means a person who submits an application for an OSM 
blaster certificate.
    Application means a request for an OSM blaster certificate submitted 
on the prescribed form, including the required fee and any applicable 
supporting evidence or other attachments.
    Issue and issuance mean to grant to an applicant his or her first 
OSM blaster certificate that is not granted through reciprocity.
    Reciprocity means the recognition by OSM of a blaster certificate 
issued by a State regulatory authority under an OSM-approved blaster 
certification program as qualifying an applicant for the grant of an OSM 
blaster certificate.
    Reissue and reissuance are synonymous with the term recertification 
in Sec. 850.15(c) of this chapter, and mean to grant to an applicant 
who holds a renewed OSM blaster certificate, or who holds an OSM blaster 
certificate that expired more than 1 year prior to the date of his or 
her application, or who held an OSM blaster certificate that was 
revoked, a subsequent certificate that is not granted through 
reciprocity and for which additional training and examination are 
required.
    Renew and renewal mean to grant to an applicant who holds an issued 
or reissued OSM blaster certificate a subsequent certificate that is not 
granted through reciprocity and for which additional training and 
examination are not required.
    Replace and replacement mean to grant to an applicant a duplicate 
OSM blaster certificate as a substitute for one that was lost or 
destroyed.



Sec. 955.10  Information collection.

    The information collection requirements in this part were approved 
by the Office of Management and Budget under 44 U.S.C. 3507 and assigned 
clearance number 1029-0083. This information is needed to meet the 
requirements of sections 504, 515, 516, 710 and 719 of Pub. L. 95-87, 
and will be used by OSM in the certification of blasters. The obligation 
to respond is mandatory.



Sec. 955.11  General requirements.

    To qualify for an OSM blaster certificate, a person shall:
    (a) Be at least 20 years old prior to submitting an application, and 
at least

[[Page 710]]

21 years old prior to the grant of a certificate;
    (b) In the 3 years prior to submitting an application have been 
qualified and worked as a blaster or the equivalent, or have worked 
under the direction of a blaster or the equivalent, for the following 
cumulative length of time:
    (1) Certificate issuance--2 years; or
    (2) Certificate renewal or reissuance--1 year;
    (c) For certificate issuance or reissuance, have received on-the-job 
training, completed a training course, and obtained satisfactory 
evidence of having completed training, as provided in Sec. 955.12;
    (d) Be competent, possess practical knowledge of blasting 
techniques, understand the hazards involved in the use of explosives, 
and exhibit a pattern of conduct consistent with the acceptance of 
responsibility for blasting operations;
    (e) Submit an application as provided in Sec. 955.13;
    (f) For certificate issuance or reissuance, pass a written 
examination as provided in Sec. 955.14;
    (g) For a certificate through reciprocity, meet the requirements of 
Sec. 955.16; and
    (h) Not be subject to suspension, revocation or other action under 
Sec. 955.17.



Sec. 955.12  Training.

    (a) On-the-job training. Except as provided in Sec. 955.14(c) for 
reexamination, each applicant for the issuance of an OSM blaster 
certificate who does not qualify as a blaster or the equivalent shall:
    (1) Have received on-the-job training, including practical field 
experience in blasting operations, from a blaster or the equivalent for 
2 out of the 3 years preceding the submission of his or her application; 
and
    (2) Have obtained from the blaster or the equivalent, the relevant 
employer, or other knowledgable source, satisfactory evidence of having 
received on-the-job training in accordance with paragraph (a)(1) of this 
section.
    (b) Training course. Except as provided in Sec. 955.14(c) for 
reexamination, each applicant for the issuance or reissuance of an OSM 
blaster certificate shall:
    (1) Within 2 years prior to submitting an application, have 
completed a training course as follows:
    (i) For certificate issuance the course shall cover the technical 
aspects of blasting operations and State and Federal laws governing the 
storage, transportation and use of explosives, including the topics 
specified in Sec. 850.13(b) of this chapter; or
    (ii) For certificate reissuance the course shall cover any 
significant changes that have occurred in the topics specified in Sec. 
850.13(b) of this chapter since the applicant last completed a course 
that was accepted by OSM for the issuance or reissuance of an OSM 
blaster certificate. If OSM determines that no siginficant changes have 
occurred, OSM may waive this requirement; and
    (2) Have obtained from the training provider satisfactory evidence 
that he or she has completed training in accordance with paragraph 
(b)(1) of this section.
    (c) Availability. OSM shall ensure that courses are available as 
provided in Sec. 850.13(b) of this chapter to train persons subject to 
this part who are responsible for the use of explosives in surface coal 
mining operations.



Sec. 955.13  Application.

    (a) Submission procedures. Any person seeking an OSM blaster 
certificate shall:
    (1) Complete and submit to OSM an application on the form prescribed 
by paragraph (b) of this section;
    (2) Include as part of the application a nonrefundable fee as 
follows:

(i) Issuance or reissuance..........................................$122
(ii) Reexamination...................................................$61
(iii) Renewal........................................................$61
(iv) Replacement.....................................................$28
(v) Reciprocity.....................................................$61;

    (3) For certificate issuance or reissuance, include as part of the 
application satisfactory evidence of having completed training as 
provided in Sec. 955.12;
    (4) For certificate issuance or reissuance, specify in the 
application the date when the applicant desires to take a previously 
scheduled examination; and

[[Page 711]]

    (5) Submit the application in advance of the date of examination, or 
of certificate expiration, as follows:
    (i) For certificate issuance, not less than 60 days before the date 
on which the applicant desires to take a previously scheduled 
examination;
    (ii) For certificate renewal, not less than 60 days before the 
expiration date of the applicant's current certificate;
    (iii) For certificate reissuance, not less than 60 days before the 
date on which the applicant desires to take a previously scheduled 
examination that will be held at least 60 days before the expiration 
date of the applicant's current certificate; or
    (iv) For a certificate through reciprocity, not less than 45 days 
before the expiration date of the applicant's current certificate.
    (b) Application form. OSM shall make available to any person seeking 
an OSM blaster certificate an application form and instructions for its 
completion. The form shall include a statement in accordance with law 
that the information provided is true and accurate to the best knowledge 
and belief of the applicant, and shall require the signature of the 
applicant.



Sec. 955.14  Examination.

    (a) Certificate issuance or reissuance. After submitting an 
application, each applicant for the issuance or reissuance of an OSM 
blaster certificate shall pass a written examination, as provided in 
paragraph (b) of this section.
    (b) Administration and content. (1) On a regular basis OSM shall 
schedule and hold a written examination on the technical aspects of 
blasting operations and State and Federal laws governing the storage, 
transportation and use of explosives, as provided in Sec. 850.14 of 
this chapter.
    (2) The examination at a minimum shall cover the topics specified in 
Sec. 850.13(b) of this chapter, and shall include:
    (i) Objective questions;
    (ii) Blasting log problems; and
    (iii) Initiation system and delay sequence problems.
    (c) Reexamination. (1) Any person who fails the examination may 
apply to OSM for reexamination by submitting a new application, 
including the prescribed fee, but no person may take the examination 
more than 2 times in any 12-month period.
    (2) Any person who fails the examination and submits a new 
application within 2 years of completing training as provided in Sec. 
955.12(a) need not repeat, or resubmit evidence of having completed, 
training.
    (d) Failure to attend. Except where the applicant shows and OSM 
finds good cause, OSM may reject the pending application of any 
applicant who fails to take the examination after OSM has granted his or 
her request for admission.



Sec. 955.15  Certification.

    (a) Processing of application. (1) Upon receiving an application for 
an OSM blaster certificate OSM shall:
    (i) Notify the applicant of the receipt of, and of any deficiency 
in, the application.
    (ii) Where applicable, notify the applicant that his or her request 
for admission to a scheduled examination either is granted or denied.
    (2) When OSM determines that an applicant has failed to qualify for 
an OSM blaster certificate, OSM shall reject his or her application and 
notify him or her accordingly.
    (b) Grant of certificate. OSM shall:
    (1) Issue or reissue an OSM blaster certificate to any qualified 
applicant who completes the applicable training, passes the examination, 
and is found by OSM to be competent and to have the necessary knowledge 
and experience to accept responsibility for blasting operations;
    (2) Renew one time the issued or reissued OSM blaster certificate of 
any qualified applicant;
    (3) Replace the OSM blaster certificate of any qualified applicant 
who presents satisfactory evidence that his or her certificate was lost 
or destroyed;
    (4) Grant an OSM blaster certificate through reciprocity as provided 
in Sec. 955.16; or
    (5) Reinstate a suspended, or reissue a revoked OSM blaster 
certificate as provided in Sec. 955.17(e).
    (c) Term of certificate. OSM shall grant an OSM blaster certificate 
for a term to expire as follows:
    (1) Issuance--3 years after issue date;

[[Page 712]]

    (2) Renewal--3 years after expiration date of applicant's current or 
expired certificate;
    (3) Reissuance--3 years after expiration date of applicant's current 
or expired certificate;
    (4) Replacement--same expiration date as replaced certificate; or
    (5) Reciprocity--60 days after expiration date of corresponding 
State certificate.
    (d) Limits on renewal. (1) OSM shall not renew an OSM blaster 
certificate more than 1 time. A blaster who seeks to extend a renewed 
certificate may apply to OSM for certificate reissuance.
    (2) OSM shall not renew an OSM blaster certificate that expired more 
than 1 year prior to the date of an application for renewal. An 
applicant who desires to extend a certificate that expired more than 1 
year prior to the date of his or her application may apply to OSM for 
certificate reissuance.
    (e) Temporary certificate. Upon request of an applicant who 
demonstrates that his or her current OSM blaster certificate is about to 
expire, or expired within 30 days prior to the date of his or her 
application, for reasons beyond his or her control, OSM may issue a non-
renewable temporary OSM blaster certificate for a maximum term of 90 
days.
    (f) Conditions of certification. Any person who holds an OSM blaster 
certificate shall comply with the conditions specified in Sec. Sec. 
850.15 (d) and (e) of this chapter.
    (g) Change of address. Any person who holds an OSM blaster 
certificate shall notify OSM in writing within 30 days of any change in 
his or her address.



Sec. 955.16  Reciprocity.

    (a) Grant of certificate. OSM shall grant an OSM blaster certificate 
through reciprocity to any qualified applicant who demonstrates that he 
or she, and whom OSM finds, holds a current State blaster certificate 
granted by a State regulatory authority under an OSM-approved State 
blaster certification program. An applicant for a certificate through 
reciprocity need not otherwise demonstrate that he or she meets the age, 
experience, knowledge, competence, training or examination requirements 
of this part.
    (b) Subsequent certificate. (1) Any person who holds an OSM blaster 
certificate granted through reciprocity may qualify for a subsequent 
certificate either through reciprocity or by meeting directly the 
applicable requirements of this part for certificate issuance, renewal 
or reissuance.
    (2) OSM shall not recognize a certificate granted through 
reciprocity as qualifying an applicant for certificate issuance, renewal 
or reissuance.



Sec. 955.17  Suspension and revocation.

    (a) Cause, nature and duration. (1) OSM may, and upon a finding of 
willful conduct of the blaster OSM shall, suspend for a definite or 
indefinite period, revoke or take other necessary action on the 
certificate of an OSM-certified blaster for any of the reasons specified 
in Sec. 850.15(b) of this chapter.
    (2) Where OSM has reliable information which demonstrates that the 
storage, transportation or use of explosives by an OSM-certified blaster 
is likely to threaten public safety or the environment, OSM shall 
suspend his or her certificate as soon as is practicable.
    (3) OSM shall make the nature and duration of a suspension, 
revocation or other action under this section commensurate with the 
cause of the action and what the person whose certificate is subjected 
to the action does to correct it.
    (b) Notice and hearing. When practicable, OSM shall give a 
certificate holder written notice and an opportunity for an informal 
hearing prior to suspending, revoking or taking other action on his or 
her OSM blaster certificate. OSM shall limit any action taken without 
such notice and opportunity to a temporary suspension for a maximum term 
of 90 days pending a decision on a final suspension, revocation or other 
action after such notice and opportunity have been provided.
    (c) Decision and appeal. By certified mail within 30 days after 
giving written notice and an opportunity for an informal hearing, OSM 
shall notify the certificate holder in writing of its final decision on 
his or her OSM blaster certificate, including the reasons for any 
suspension, revocation or other action.

[[Page 713]]

If the certificate was granted through reciprocity, OSM shall notify the 
State regulatory authority of its action. In any decision suspending, 
revoking or taking other action on an OSM blaster certificate, OSM shall 
grant to the certificate holder the right of appeal to the Department of 
the Interior Board of Land Appeals under 43 CFR 4.1280 to 4.1286.
    (d) Surrender of certificate. Upon receiving written notice that his 
or her OSM blaster certificate was suspended, revoked or subjected to 
other action, a certificate holder immediately shall surrender the 
certificate to OSM in the manner specified in the notice.
    (e) Reinstatement and reissuance. (1) OSM shall reinstate a 
suspended OSM blaster certificate by returning the certificate to the 
former certificate holder with notice of reinstatement when:
    (i) The term of a definite suspension expires; or
    (ii) The former certificate holder demonstrates, and OSM finds, that 
the cause of an indefinite suspension has been corrected.
    (2) OSM shall reissue an OSM blaster certificate to an applicant 
whose certificate was revoked if his or her application demonstrates, 
and OSM finds, that:
    (i) The cause of the revocation has been corrected; and
    (ii) The applicant meets all other applicable requirements of this 
part.
    (f) Conformance with State action. OSM shall suspend, revoke or take 
other commensurate action on an OSM blaster certificate granted through 
reciprocity if the State regulatory authority suspends, revokes or takes 
other action on the corresponding State certificate.

[51 FR 19462, May 29, 1986; 51 FR 22282, June 19, 1986]3

[[Page 715]]





  CHAPTER XII--OFFICE OF NATURAL RESOURCES REVENUE, DEPARTMENT OF THE 

                                INTERIOR




  Editorial Note: Nomenclature changes to chapter XII appear at 75 FR 
61066, Oct. 4, 2010.

                 SUBCHAPTER A--NATURAL RESOURCES REVENUE
Part                                                                Page
1201            General.....................................         717
1202            Royalties...................................         717
1203            Relief or reduction in royalty rates........         726
1204            Alternatives for marginal properties........         726
1206            Product valuation...........................         733
1207            Sales agreements or contracts governing the 
                    disposal of lease products..............         847
1208            Sale of federal royalty oil.................         849
1210            Forms and reports...........................         856
1212            Records and files maintenance...............         869
1217            Audits and inspections......................         871
1218            Collection of monies and provision for 
                    geothermal credits and incentives.......         873
1219            Distribution and disbursement of royalties, 
                    rentals, and bonuses....................         889
1220            Accounting procedures for determining net 
                    profit share payment for outer 
                    continental shelf oil and gas leases....         890
1227            Delegation to States........................         903
1228            Cooperative activities with states and 
                    indian tribes...........................         916
1229            Delegation to States........................         919
1241            Penalties...................................         927
1243            Suspensions pending appeal and bonding--
                    minerals revenue management.............         931
                          SUBCHAPTER B--APPEALS
1290            Appeal procedures...........................         937

[[Page 716]]

    

[[Page 717]]



PART 1201_GENERAL--Table of Contents



Subpart A--General Provisions [Reserved]

Subpart B--Oil and Gas, General [Reserved]

                     Subpart C_Oil and Gas, Onshore

Sec.
1201.100 Responsibilities of the Director for Office of Natural 
          Resources Revenue.

Subpart D--Oil, Gas and Sulphur, Offshore [Reserved]

Subpart E--Coal [Reserved]

Subpart F--Other Solid Minerals [Reserved]

Subpart G--Geothermal Resources [Reserved]

Subpart H--Indian Lands [Reserved]

    Authority: The Act of February 25, 1920 (30 U.S.C. 181, et seq.), as 
amended; the Act of May 21, 1930 (30 U.S.C. 301-306); the Mineral 
Leasing Act for Acquired Lands (30 U.S.C. 351-359), as amended; the Act 
of March 3, 1909 (25 U.S.C. 396), as amended; the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321, et seq.) as amended; the Act of May 
11, 1938 (25 U.S.C. 396a-396q), as amended; the Act of February 28, 1891 
(25 U.S.C. 397), as amended; the Act of May 29, 1924 (25 U.S.C. 398); 
the Act of March 3, 1927 (25 U.S.C. 398a-398e); the Act of June 30, 1919 
(25 U.S.C. 399), as amended; R.S. Sec. 441 (43 U.S.C. 1457), see also 
Attorney General's Opinion of April 2, 1941 (40 Op. Atty. Gen. 41); the 
Federal Property and Administrative Services Act of 1949 (40 U.S.C. 471, 
et seq.), as amended; the National Environmental Policy Act of 1969 (42 
U.S.C. 4321 et seq.), as amended; the Act of December 12, 1980 (Pub. L. 
96-514, 94 Stat. 2964); the Combined Hydrocarbon Leasing Act of 1981 
(Pub. L. 97-78, 95 Stat. 1070); the Outer Continental Shelf Lands Act 
(43 U.S.C. 1331, et seq.), as amended; section 2 of Reorganization Plan 
No. 3 of 1950 (64 stat. 1262); Secretarial Order No. 3071 of January 19, 
1982, as amended; and Secretarial Order 3087, as amended.

Subpart A--General Provisions [Reserved]

Subpart B--Oil and Gas, General [Reserved]

Subpart C--Oil and Gas, Onshore



Sec. 1201.100  Responsibilities of the Director for Office of Natural 

Resources Revenue.

    The Director is responsible for the collection of certain rents, 
royalties, and other payments; for the receipt of sales and production 
reports; for determining royalty liability; for maintaining accounting 
records; for any audits of the royalty payments and obligations; and for 
any and all other functions relating to royalty management on Federal 
and Indian oil and gas leases.

[47 FR 47768, Oct. 27, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and further redesignated and amended at 75 FR 61066, Oct. 4, 2010]

Subpart D--Oil, Gas and Sulphur, Offshore [Reserved]

Subpart E--Coal [Reserved]

Subpart F--Other Solid Minerals [Reserved]

Subpart G--Geothermal Resources [Reserved]

Subpart H--Indian Lands [Reserved]



PART 1202_ROYALTIES--Table of Contents



Subpart A--General Provisions [Reserved]

Subpart B--Oil, Gas, and OCS Sulfur, General

Sec.
1202.51 Scope and definitions.
1202.52 Royalties.
1202.53 Minimum royalty.

                    Subpart C_Federal and Indian Oil

1202.100 Royalty on oil.
1202.101 Standards for reporting and paying royalties.

                          Subpart D_Federal Gas

1202.150 Royalty on gas.
1202.151 Royalty on processed gas.
1202.152 Standards for reporting and paying royalties on gas.

[[Page 718]]

3Subpart E--Solid Minerals, General [Reserved]

                             Subpart F_Coal

1202.250 Overriding royalty interest.

Subpart G--Other Solid Minerals [Reserved]

                     Subpart H_Geothermal Resources

1202.350 Scope and definitions.
1202.351 Royalties on geothermal resources.
1202.352 Minimum royalty.
1202.353 Measurement standards for reporting and paying royalties and 
          direct use fees.

Subpart I--OCS Sulfur [Reserved]

               Subpart J_Gas Production from Indian Leases

1202.550 How do I determine the royalty due on gas production?
1202.551 How do I determine the volume of production for which I must 
          pay royalty if my lease is not in an approved Federal unit or 
          communitization agreement (AFA)?
1202.552 How do I determine how much royalty I must pay if my lease is 
          in an approved Federal unit or communitization agreement 
          (AFA)?
1202.553 How do I value my production if I take more than my entitled 
          share?
1202.554 How do I value my production that I do not take if I take less 
          than my entitled share?
1202.555 What portion of the gas that I produce is subject to royalty?
1202.556 How do I determine the value of avoidably lost, wasted, or 
          drained gas?
1202.557 Must I pay royalty on insurance compensation for unavoidably 
          lost gas?
1202.558 What standards do I use to report and pay royalties on gas?

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq.; 
1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et seq.; 1331 et seq., 1801 
et seq.

    Source: 48 CFR 35641, Aug. 5, 1983, unless otherwise noted. 
Redesignated at 75 FR 61066, Oct. 4, 2010.

Subpart A--General Provisions [Reserved]



               Subpart B_Oil, Gas, and OCS Sulfur, General

    Source: 53 FR 1217, Jan. 15, 1988, unless otherwise noted.



Sec. 1202.51  Scope and definitions.

    (a) This subpart is applicable to Federal and Indian (Tribal and 
allotted) oil and gas leases (except leases on the Osage Indian 
Reservation, Osage County, Oklahoma) and OCS sulfur leases.
    (b) The definitions in subparts B, C, D, and E, of part 1206 of this 
title are applicable to subparts B, C, D, and J of this part.

[53 FR 1217, Jan. 15, 1988, as amended at 64 FR 43513, Aug. 10, 1999]



Sec. 1202.52  Royalties.

    (a) Royalties on oil, gas, and OCS sulfur shall be at the royalty 
rate specified in the lease, unless the Secretary, pursuant to the 
provisions of the applicable mineral leasing laws, reduces, or in the 
case of OCS leases, reduces or eliminates, the royalty rate or net 
profit share set forth in the lease.
    (b) For purposes of this subpart, the use of the term royalty(ies) 
includes the term net profit share(s).



Sec. 1202.53  Minimum royalty.

    For leases that provide for minimum royalty payments, the lessee 
shall pay the minimum royalty as specified in the lease.



                    Subpart C_Federal and Indian Oil



Sec. 1202.100  Royalty on oil.

    (a) Royalties due on oil production from leases subject to the 
requirements of this part, including condensate separated from gas 
without processing, shall be at the royalty rate established by the 
terms of the lease. Royalty shall be paid in value unless the Office of 
Natural Resources Revenue (ONRR) requires payment in-kind. When paid in 
value, the royalty due shall be the value, for royalty purposes, 
determined pursuant to part 1206 of this title multiplied by the royalty 
rate in the lease.
    (b)(1) All oil (except oil unavoidably lost or used on, or for the 
benefit of, the lease, including that oil used off-lease for the benefit 
of the lease when

[[Page 719]]

such off-lease use is permitted by the Bureau of Ocean Energy 
Management, Regulation, and Enforcement (BOEMRE) or BLM, as appropriate) 
produced from a Federal or Indian lease to which this part applies is 
subject to royalty.
    (2) When oil is used on, or for the benefit of, the lease at a 
production facility handling production from more than one lease with 
the approval of the BOEMRE or BLM, as appropriate, or at a production 
facility handling unitized or communitized production, only that 
proportionate share of each lease's production (actual or allocated) 
necessary to operate the production facility may be used royalty-free.
    (3) Where the terms of any lease are inconsistent with this section, 
the lease terms shall govern to the extent of that inconsistency.
    (c) If BLM determines that oil was avoidably lost or wasted from an 
onshore lease, or that oil was drained from an onshore lease for which 
compensatory royalty is due, or if BOEMRE determines that oil was 
avoidably lost or wasted from an offshore lease, then the value of that 
oil shall be determined in accordance with 30 CFR part 1206.
    (d) If a lessee receives insurance compensation for unavoidably lost 
oil, royalties are due on the amount of that compensation. This 
paragraph shall not apply to compensation through self-insurance.
    (e)(1) In those instances where the lessee of any lease committed to 
a federally approved unitization or communitization agreement does not 
actually take the proportionate share of the agreement production 
attributable to its lease under the terms of the agreement, the full 
share of production attributable to the lease under the terms of the 
agreement nonetheless is subject to the royalty payment and reporting 
requirements of this title. Except as provided in paragraph (e)(2) of 
this section, the value, for royalty purposes, of production 
attributable to unitized or communitized leases will be determined in 
accordance with 30 CFR part 1206. In applying the requirements of 30 CFR 
part 1206, the circumstances involved in the actual disposition of the 
portion of the production to which the lessee was entitled but did not 
take shall be considered as controlling in arriving at the value, for 
royalty purposes, of that portion as though the person actually selling 
or disposing of the production were the lessee of the Federal or Indian 
lease.
    (2) If a Federal or Indian lessee takes less than its proportionate 
share of agreement production, upon request of the lessee ONRR may 
authorize a royalty valuation method different from that required by 
paragraph (e)(1) of this section, but consistent with the purposes of 
these regulations, for any volumes not taken by the lessee but for which 
royalties are due.
    (3) For purposes of this subchapter, all persons actually taking 
volumes in excess of their proportionate share of production in any 
month under a unitization or communitization agreement shall be deemed 
to have taken ratably from all persons actually taking less than their 
proportionate share of the agreement production for that month.
    (4) If a lessee takes less than its proportionate share of agreement 
production for any month but royalties are paid on the full volume of 
its proportionate share in accordance with the provisions of this 
section, no additional royalty will be owed for that lease for prior 
periods when the lessee subsequently takes more than its proportionate 
share to balance its account or when the lessee is paid a sum of money 
by the other agreement participants to balance its account.
    (f) For production from Federal and Indian leases which are 
committed to federally-approved unitization or communitization 
agreements, upon request of a lessee ONRR may establish the value of 
production pursuant to a method other than the method required by the 
regulations in this title if: (1) The proposed method for establishing 
value is consistent with the requirements of the applicable statutes, 
lease terms, and agreement terms; (2) persons with an interest in the 
agreement, including, to the extent practical, royalty interests, are 
given notice and an opportunity to comment on the proposed valuation 
method before it is authorized; and (3) to the extent practical, persons 
with an interest in a Federal or Indian lease committed to

[[Page 720]]

the agreement, including royalty interests, must agree to use the 
proposed method for valuing production from the agreement for royalty 
purposes.

[53 FR 1217, Jan. 15, 1988]



Sec. 1202.101  Standards for reporting and paying royalties.

    Oil volumes are to be reported in barrels of clean oil of 42 
standard U.S. gallons (231 cubic inches each) at 60 [deg]F. When 
reporting oil volumes for royalty purposes, corrections must have been 
made for Basic Sediment and Water (BS&W) and other impurities. Reported 
American Petroleum Institute (API) oil gravities are to be those 
determined in accordance with standard industry procedures after 
correction to 60 [deg]F.

[53 FR 1217, Jan. 15, 1988]



                          Subpart D_Federal Gas

    Source: 53 FR 1271, Jan. 15, 1988, unless otherwise noted.



Sec. 1202.150  Royalty on gas.

    (a) Royalties due on gas production from leases subject to the 
requirements of this subpart, except helium produced from Federal 
leases, shall be at the rate established by the terms of the lease. 
Royalty shall be paid in value unless ONRR requires payment in kind. 
When paid in value, the royalty due shall be the value, for royalty 
purposes, determined pursuant to 30 CFR part 1206 of this title 
multiplied by the royalty rate in the lease.
    (b)(1) All gas (except gas unavoidably lost or used on, or for the 
benefit of, the lease, including that gas used off-lease for the benefit 
of the lease when such off-lease use is permitted by the BOEMRE or BLM, 
as appropriate) produced from a Federal lease to which this subpart 
applies is subject to royalty.
    (2) When gas is used on, or for the benefit of, the lease at a 
production facility handling production from more than one lease with 
the approval of BOEMRE or BLM, as appropriate, or at a production 
facility handling unitized or communitized production, only that 
proportionate share of each lease's production (actual or allocated) 
necessary to operate the production facility may be used royalty free.
    (3) Where the terms of any lease are inconsistent with this subpart, 
the lease terms shall govern to the extent of that inconsistency.
    (c) If BLM determines that gas was avoidably lost or wasted from an 
onshore lease, or that gas was drained from an onshore lease for which 
compensatory royalty is due, or if BOEMRE determines that gas was 
avoidably lost or wasted from an OCS lease, then the value of that gas 
shall be determined in accordance with 30 CFR part 1206.
    (d) If a lessee receives insurance compensation for unavoidably lost 
gas, royalties are due on the amount of that compensation. This 
paragraph shall not apply to compensation through self-insurance.
    (e)(1) In those instances where the lessee of any lease committed to 
a Federally approved unitization or communitization agreement does not 
actually take the proportionate share of the production attributable to 
its Federal lease under the terms of the agreement, the full share of 
production attributable to the lease under the terms of the agreement 
nonetheless is subject to the royalty payment and reporting requirements 
of this title. Except as provided in paragraph (e)(2) of this section, 
the value for royalty purposes of production attributable to unitized or 
communitized leases will be determined in accordance with 30 CFR part 
1206. In applying the requirements of 30 CFR part 1206, the 
circumstances involved in the actual disposition of the portion of the 
production to which the lessee was entitled but did not take shall be 
considered as controlling in arriving at the value for royalty purposes 
of that portion, as if the person actually selling or disposing of the 
production were the lessee of the Federal lease.
    (2) If a Federal lessee takes less than its proportionate share of 
agreement production, upon request of the lessee ONRR may authorize a 
royalty valuation method different from that required by paragraph 
(e)(1) of this section, but consistent with the purpose of these 
regulations, for any volumes not

[[Page 721]]

taken by the lessee but for which royalties are due.
    (3) For purposes of this subchapter, all persons actually taking 
volumes in excess of their proportionate share of production in any 
month under a unitization or communitization agreement shall be deemed 
to have taken ratably from all persons actually taking less than their 
proportionate share of the agreement production for that month.
    (4) If a lessee takes less than its proportionate share of agreement 
production for any month but royalties are paid on the full volume of 
its proportionate share in accordance with the provisions of this 
section, no additional royalty will be owed for that lease for prior 
periods at the time the lessee subsequently takes more than its 
proportionate share to balance its account or when the lessee is paid a 
sum of money by the other agreement participants to balance its account.
    (f) For production from Federal leases which are committed to 
federally-approved unitization or communitization agreements, upon 
request of a lessee ONRR may establish the value of production pursuant 
to a method other than the method required by the regulations in this 
title if: (1) The proposed method for establishing value is consistent 
with the requirements of the applicable statutes, lease terms and 
agreement terms; (2) to the extent practical, persons with an interest 
in the agreement, including royalty interests, are given notice and an 
opportunity to comment on the proposed valuation method before it is 
authorized; and (3) to the extent practical, persons with an interest in 
a Federal lease committed to the agreement, including royalty interests, 
must agree to use the proposed method for valuing production from the 
agreement for royalty purposes.

[53 FR 1271, Jan. 15, 1988, as amended at 64 FR 43513, Aug. 10, 1999]



Sec. 1202.151  Royalty on processed gas.

    (a)(1) A royalty, as provided in the lease, shall be paid on the 
value of:
    (i) Any condensate recovered downstream of the point of royalty 
settlement without resorting to processing; and
    (ii) Residue gas and all gas plant products resulting from 
processing the gas produced from a lease subject to this subpart.
    (2) ONRR shall authorize a processing allowance for the reasonable, 
actual costs of processing the gas produced from Federal leases. 
Processing allowances shall be determined in accordance with 30 CFR part 
1206 subpart D for gas production from Federal leases and 30 CFR part 
1206 subpart E for gas production from Indian leases.
    (b) A reasonable amount of residue gas shall be allowed royalty free 
for operation of the processing plant, but no allowance shall be made 
for boosting residue gas or other expenses incidental to marketing, 
except as provided in 30 CFR part 1206. In those situations where a 
processing plant processes gas from more than one lease, only that 
proportionate share of each lease's residue gas necessary for the 
operation of the processing plant shall be allowed royalty free.
    (c) No royalty is due on residue gas, or any gas plant product 
resulting from processing gas, which is reinjected into a reservoir 
within the same lease, unit area, or communitized area, when the 
reinjection is included in a plan of development or operations and the 
plan has received BLM or BOEMRE approval for onshore or offshore 
operations, respectively, until such time as they are finally produced 
from the reservoir for sale or other disposition off-lease.

[53 FR 1217, Jan. 15, 1988, as amended at 61 FR 5490, Feb. 12, 1996; 64 
FR 43513, Aug. 10, 1999]



Sec. 1202.152  Standards for reporting and paying royalties on gas.

    (a)(1) If you are responsible for reporting production or royalties, 
you must:
    (i) Report gas volumes and British thermal unit (Btu) heating 
values, if applicable, under the same degree of water saturation;
    (ii) Report gas volumes in units of 1,000 cubic feet (mcf); and
    (iii) Report gas volumes and Btu heating value at a standard 
pressure base of 14.73 pounds per square inch absolute (psia) and a 
standard temperature base of 60 [deg]F.

[[Page 722]]

    (2) The frequency and method of Btu measurement as set forth in the 
lessee's contract shall be used to determine Btu heating values for 
reporting purposes. However, the lessee shall measure the Btu value at 
least semiannually by recognized standard industry testing methods even 
if the lessee's contract provides for less frequent measurement.
    (b)(1) Residue gas and gas plant product volumes shall be reported 
as specified in this paragraph.
    (2) Carbon dioxide (CO2), nitrogen (N2), 
helium (He), residue gas, and any other gas marketed as a separate 
product shall be reported by using the same standards specified in 
paragraph (a) of this section.
    (3) Natural gas liquids (NGL) volumes shall be reported in standard 
U.S. gallons (231 cubic inches) at 60 [deg]F.
    (4) Sulfur (S) volumes shall be reported in long tons (2,240 
pounds).

[53 FR 1271, Jan. 15, 1988, as amended at 63 FR 26367, May 12, 1998]

Subpart E--Solid Minerals, General [Reserved]



                             Subpart F_Coal



Sec. 1202.250  Overriding royalty interest.

    The regulations governing overriding royalty interests, production 
payments, or similar interests created under Federal coal leases are in 
43 CFR group 3400.

[54 FR 1522, Jan. 13, 1989]

Subpart G--Other Solid Minerals [Reserved]



                     Subpart H_Geothermal Resources

    Source: 56 FR 57275, Nov. 8, 1991, unless otherwise noted.



Sec. 202.350  Scope and definitions.

    (a) This subpart is applicable to all geothermal resources produced 
from Federal geothermal leases issued pursuant to the Geothermal Steam 
Act of 1970, as amended (30 U.S.C. 1001 et seq.).
    (b) The definitions in Sec. 1206.351 are applicable to this 
subpart.



Sec. 1202.351  Royalties on geothermal resources.

    (a)(1) Royalties on geothermal resources, including byproducts, or 
on electricity produced using geothermal resources, will be at the 
royalty rate(s) specified in the lease, unless the Secretary of the 
Interior temporarily waives, suspends, or reduces that rate(s). 
Royalties are determined under 30 CFR part 1206, subpart H.
    (2) Fees in lieu of royalties on geothermal resources are prescribed 
in 30 CFR part 1206, subpart H.
    (3) Except for the amount credited against royalties for in-kind 
deliveries of electricity to a State or county under Sec. 1218.306, you 
must pay royalties and direct use fees in money.
    (b)(1) Except as specified in paragraph (b)(2) of this section, 
royalties or fees are due on--
    (i) All geothermal resources produced from a lease and that are sold 
or used by the lessee or are reasonably susceptible to sale or use by 
the lessee, or
    (ii) All proceeds derived from the sale of electricity produced 
using geothermal resources produced from a lease.
    (2) For purposes of this subparagraph, the terms ``Class I lease,'' 
``Class II lease,'' and ``Class III lease'' have the same meanings 
prescribed in Sec. 1206.351.
    (i) For Class I leases, ONRR will allow free of royalty--
    (A) Geothermal resources that are unavoidably lost or reinjected 
before use on or off the lease, as determined by the Bureau of Land 
Management (BLM), or that are reasonably necessary to generate plant 
parasitic electricity or electricity for Federal lease operations; and
    (B) A reasonable amount of commercially demineralized water 
necessary for power plant operations or otherwise used on or for the 
benefit of the lease.
    (ii) For Class II and Class III leases where the lessee uses 
geothermal resources for commercial production or generation of 
electricity, or where geothermal resources are sold at arm's length for 
the commercial production or generation of electricity, ONRR will allow 
free of royalty or direct use fees geothermal resources that are:

[[Page 723]]

    (A) Unavoidably lost or reinjected before use on or off the lease, 
as determined by BLM;
    (B) Reasonably necessary for the lessee to generate plant parasitic 
electricity or electricity for Federal lease operations, as approved by 
BLM; or
    (C) Otherwise used for Federal lease operations related to 
commercial production or generation of electricity, as approved by BLM.
    (iii) For Class II and Class III leases where the lessee uses the 
geothermal resources for a direct use or in a direct use facility, as 
defined in Sec. 1206.351, resources that are used to generate 
electricity for Federal lease operations or that are otherwise used for 
Federal lease operations are subject to direct use fees, except for 
geothermal resources that are unavoidably lost or reinjected before use 
on or off the lease, as determined by BLM.
    (3) Royalties on byproducts are due at the time the recovered 
byproduct is used, sold, or otherwise finally disposed of. Byproducts 
produced and added to stockpiles or inventory do not require payment of 
royalty until the byproducts are sold, utilized, or otherwise finally 
disposed of. The ONRR may ask BLM to increase the lease bond to protect 
the lessor's interest when BLM determines that stockpiles or inventories 
become excessive.
    (c) If BLM determines that geothermal resources (including 
byproducts) were avoidably lost or wasted from the lease, or that 
geothermal resources (including byproducts) were drained from the lease 
for which compensatory royalty (or compensatory fees in lieu of 
compensatory royalty) are due, the value of those geothermal resources, 
or the royalty or fees owed, will be determined under 30 CFR part 1206, 
subpart H.
    (d) If a lessee receives insurance or other compensation for 
unavoidably lost geothermal resources (including byproducts), royalties 
at the rates specified in the lease (or fees in lieu of royalties) are 
due on the amount of, or as a result of, that compensation. This 
paragraph will not apply to compensation through self-insurance.

[72 FR 24458, May 2, 2007]



Sec. 1202.352  Minimum royalty.

    In no event shall the lessee's annual royalty payments for any 
producing lease be less than the minimum royalty established by the 
lease.



Sec. 1202.353  Measurement standards for reporting and paying royalties and 

direct use fees.

    (a) For geothermal resources used to generate electricity, you must 
report the quantity on which royalty is due on Form MMS-2014 (Report of 
Sales and Royalty Remittance) as follows:
    (1) For geothermal resources for which royalty is calculated under 
Sec. 1206.352(a), you must report quantities in:
    (i) Thousands of pounds to the nearest whole thousand pounds if the 
contract for the geothermal resources specifies delivery in terms of 
weight; or
    (ii) Millions of Btu to the nearest whole million Btu if the sales 
contract for the geothermal resources specifies delivery in terms of 
heat or thermal energy.
    (2) For geothermal resources for which royalty is calculated under 
Sec. 1206.352(b), you must report the quantities in kilowatt-hours to 
the nearest whole kilowatt-hour.
    (b) For geothermal resources used in direct use processes, you must 
report the quantity on which a royalty or direct use fee is due on Form 
MMS-2014 in:
    (1) Millions of Btu to the nearest whole million Btu if valuation is 
in terms of heat or thermal energy used or displaced;
    (2) Millions of gallons to the nearest million gallons of geothermal 
fluid produced if valuation or fee calculation is in terms of volume;
    (3) Millions of pounds to the nearest million pounds of geothermal 
fluid produced if valuation or fee calculation is in terms of mass; or
    (4) Any other measurement unit ONRR approves for valuation and 
reporting purposes.
    (c) For byproducts, you must report the quantity on which royalty is 
due on Form MMS-2014 consistent with ONRR-established reporting 
standards.
    (d) For commercially demineralized water, you must report the 
quantity on which royalty is due on Form MMS-

[[Page 724]]

2014 in hundreds of gallons to the nearest hundred gallons.
    (e) You need not report the quality of geothermal resources, 
including byproducts, to ONRR. However, you must maintain quality 
measurements for audit purposes. Quality measurements include, but are 
not limited to:
    (1) Temperatures and chemical analyses for fluid geothermal 
resources; and
    (2) Chemical analyses, weight percent, or other purity measurements 
for byproducts.

[72 FR 24458, May 2, 2007]

Subpart I--OCS Sulfur [Reserved]



               Subpart J_Gas Production From Indian Leases

    Source: 64 FR 43514, Aug. 10, 1999, unless otherwise noted.



Sec. 1202.550  How do I determine the royalty due on gas production?

    If you produce gas from an Indian lease subject to this subpart, you 
must determine and pay royalties on gas production as specified in this 
section.
    (a) Royalty rate. You must calculate your royalty using the royalty 
rate in the lease.
    (b) Payment in value or in kind. You must pay royalty in value 
unless:
    (1) The Tribal lessor requires payment in kind; or
    (2) You have a lease on allotted lands and ONRR requires payment in 
kind.
    (c) Royalty calculation. You must use the following calculations to 
determine royalty due on the production from or attributable to your 
lease.
    (1) When paid in value, the royalty due is the unit value of 
production for royalty purposes, determined under 30 CFR part 1206, 
multiplied by the volume of production multiplied by the royalty rate in 
the lease.
    (2) When paid in kind, the royalty due is the volume of production 
multiplied by the royalty rate.
    (d) Reduced royalty rate. The Indian lessor and the Secretary may 
approve a request for a royalty rate reduction. In your request you must 
demonstrate economic hardship.
    (e) Reporting and paying. You must report and pay royalties as 
provided in part 1218 of this title.



Sec. 1202.551  How do I determine the volume of production for which I must 

pay royalty if my lease is not in an approved Federal unit or communitization 

agreement (AFA)?

    (a) You are liable for royalty on your entitled share of gas 
production from your Indian lease, except as provided in Sec. Sec. 
1202.555, 1202.556, and 1202.557.
    (b) You and all other persons paying royalties on the lease must 
report and pay royalties based on your takes. If another person takes 
some of your entitled share but does not pay the royalties owed, you are 
liable for those royalties.
    (c) You and all other persons paying royalties on the lease may ask 
ONRR for permission to report and pay royalties based on your 
entitlements. In that event, ONRR will provide valuation instructions 
consistent with this part and part 1206 of this title.



Sec. 1202.552  How do I determine how much royalty I must pay if my lease is 

in an approved Federal unit or communitization agreement (AFA)?

    You must pay royalties each month on production allocated to your 
lease under the terms of an AFA. To determine the volume and the value 
of your production, you must follow these three steps:
    (a) You must determine the volume of your entitled share of 
production allocated to your lease under the terms of an AFA. This may 
include production from more than one AFA.
    (b) You must value the production you take using 30 CFR part 1206. 
If you take more than your entitled share of production, see Sec. 
1202.553 for information on how to value this production. If you take 
less than your entitled share of production, see Sec. 1202.554 for 
information on how to value production you are entitled to but do not 
take.



Sec. 1202.553  How do I value my production if I take more than my entitled 

share?

    If you take more than your entitled share of production from a lease 
in an AFA for any month, you must determine the weighted-average value 
of all

[[Page 725]]

of the production that you take using the procedures in 30 CFR part 
1206, and use that value for your entitled share of production.



Sec. 1202.554  How do I value my production that I do not take if I take less 

than my entitled share?

    If you take none or only part of your entitled production from a 
lease in an AFA for any month, use this section to value the production 
that you are entitled to but do not take.
    (a) If you take a significant volume of production from your lease 
during the month, you must determine the weighted average value of the 
production that you take using 30 CFR part 1206, and use that value for 
the production that you do not take.
    (b) If you do not take a significant volume of production from your 
lease during the month, you must use paragraph (c) or (d) of this 
section, whichever applies.
    (c) In a month where you do not take production or take an 
insignificant volume, and if you would have used Sec. 1206.172(b) to 
value the production if you had taken it, you must determine the value 
of production not taken for that month under Sec. 1206.172(b) as if you 
had taken it.
    (d) If you take none of your entitled share of production from a 
lease in an AFA, and if that production cannot be valued under Sec. 
1206.172(b), then you must determine the value of the production that 
you do not take using the first of the following methods that applies:
    (1) The weighted average of the value of your production (under 30 
CFR part 1206) in that month from other leases in the same AFA.
    (2) The weighted average of the value of your production (under 30 
CFR part 1206) in that month from other leases in the same field or 
area.
    (3) The weighted average of the value of your production (under 30 
CFR part 1206) during the previous month for production from leases in 
the same AFA.
    (4) The weighted average of the value of your production (under 30 
CFR part 1206) during the previous month for production from other 
leases in the same field or area.
    (5) The latest major portion value that you received from ONRR 
calculated under Sec. 1206.174 for the same ONRR-designated area.
    (e) You may take less than your entitled share of AFA production for 
any month, but pay royalties on the full volume of your entitled share 
under this section. If you do, you will owe no additional royalty for 
that lease for that month when you later take more than your entitled 
share to balance your account. The provisions of this paragraph (e) also 
apply when the other AFA participants pay you money to balance your 
account.



Sec. 1202.555  What portion of the gas that I produce is subject to royalty?

    (a) All gas produced from or allocated to your Indian lease is 
subject to royalty except the following:
    (1) Gas that is unavoidably lost.
    (2) Gas that is used on, or for the benefit of, the lease.
    (3) Gas that is used off-lease for the benefit of the lease when the 
Bureau of Land Management (BLM) approves such off-lease use.
    (4) Gas used as plant fuel as provided in Sec. 1206.179(e).
    (b) You may use royalty-free only that proportionate share of each 
lease's production (actual or allocated) necessary to operate the 
production facility when you use gas for one of the following purposes:
    (1) On, or for the benefit of, the lease at a production facility 
handling production from more than one lease with BLM's approval.
    (2) At a production facility handling unitized or communitized 
production.
    (c) If the terms of your lease are inconsistent with this subpart, 
your lease terms will govern to the extent of that inconsistency.



Sec. 1202.556  How do I determine the value of avoidably lost, wasted, or 

drained gas?

    If BLM determines that a volume of gas was avoidably lost or wasted, 
or a volume of gas was drained from your Indian lease for which 
compensatory royalty is due, then you must determine the value of that 
volume of gas under 30 CFR part 1206.

[[Page 726]]



Sec. 1202.557  Must I pay royalty on insurance compensation for unavoidably 

lost gas?

    If you receive insurance compensation for unavoidably lost gas, you 
must pay royalties on the amount of that compensation. This paragraph 
does not apply to compensation through self-insurance.



Sec. 1202.558  What standards do I use to report and pay royalties on gas?

    (a) You must report gas volumes as follows:
    (1) Report gas volumes and Btu heating values, if applicable, under 
the same degree of water saturation. Report gas volumes and Btu heating 
value at a standard pressure base of 14.73 psia and a standard 
temperature of 60 degrees Fahrenheit. Report gas volumes in units of 
1,000 cubic feet (Mcf).
    (2) You must use the frequency and method of Btu measurement stated 
in your contract to determine Btu heating values for reporting purposes. 
However, you must measure the Btu value at least semi-annually by 
recognized standard industry testing methods even if your contract 
provides for less frequent measurement.
    (b) You must report residue gas and gas plant product volumes as 
follows:
    (1) Report carbon dioxide (CO2), nitrogen 
(N2), helium (He), residue gas, and any gas marketed as a 
separate product by using the same standards specified in paragraph (a) 
of this section.
    (2) Report natural gas liquid (NGL) volumes in standard U.S. gallons 
(231 cubic inches) at 60 degrees F.
    (3) Report sulfur (S) volumes in long tons (2,240 pounds).



PART 1203_RELIEF OR REDUCTION IN ROYALTY RATES--Table of Contents



Sec.
1203.250 Advance royalty.
1203.251 Reduction in royalty rate or rental.

    Authority: 25 U.S.C. 396 et seq.; 25 U.S.C. 396a et seq.; 25 U.S.C. 
2101 et seq.; 30 U.S.C. 181 et seq.; 30 U.S.C. 351 et seq.; 30 U.S.C. 
1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et seq.; and 43 U.S.C. 1331 
et seq.

    Source: 48 FR 35641, Aug. 5, 1983, unless otherwise noted. 
Redesignated at 75 FR 61067, Oct. 4, 2010.



Sec. 1203.250  Advance royalty.

    Provisions for the payment of advance royalty in lieu of continued 
operation are contained at 43 CFR 3483.4.

[54 FR 1522, Jan. 13, 1989]



Sec. 1203.251  Reduction in royalty rate or rental.

    An application for reduction in coal royalty rate or rental shall be 
filed and processed in accordance with 43 CFR group 3400.

[54 FR 1522, Jan. 13, 1989]



PART 1204_ALTERNATIVES FOR MARGINAL PROPERTIES--Table of Contents



                      Subpart A_General Provisions

Sec.
1204.1 What is the purpose of this part?
1204.2 What definitions apply to this part?
1204.3 What alternatives are available for marginal properties?
1204.4 What is a marginal property under this part?
1204.5 What statutory requirements must I meet to obtain royalty 
          prepayment or accounting and auditing relief?
1204.6 May I appeal if ONRR denies my request for prepayment or other 
          relief?

Subpart B--Prepayment of Royalty [Reserved]

                Subpart C_Accounting and Auditing Relief

1204.200 What is the purpose of this subpart?
1204.201 Who may obtain accounting and auditing relief?
1204.202 What is the cumulative royalty reports and payments relief 
          option?
1204.203 What is the other relief option?
1204.204 What accounting and auditing relief will ONRR not allow?
1204.205 How do I obtain accounting and auditing relief?
1204.206 What will ONRR do when it receives my request for other relief?
1204.207 Who will approve, deny, or modify my request for accounting and 
          auditing relief?
1204.208 May a State decide that it will or will not allow one or both 
          of the relief options under this subpart?
1204.209 What if a property ceases to qualify for relief obtained under 
          this subpart?

[[Page 727]]

1204.210 What if a property is approved as part of a nonqualifying 
          agreement?
1204.211 When may ONRR rescind relief for a property?
1204.212 What if I took relief for which I was ineligible?
1204.213 May I obtain relief for a property that benefits from other 
          Federal or State incentive programs?
1204.214 Is minimum royalty due on a property for which I took relief?
1204.215 Are the information collection requirements in this subpart 
          approved by the Office of Management and Budget (OMB)?

    Authority: 30 U.S.C. 1701 et seq.

    Source: 69 FR 55088, Sept. 13, 2004, unless otherwise noted. 
Redesignated at 75 FR 61067, Oct. 4, 2010.



                      Subpart A_General Provisions



Sec. 1204.1  What is the purpose of this part?

    This part explains how you as a lessee or designee of a Federal 
onshore or Outer Continental Shelf (OCS) oil and gas lease may obtain 
prepayment or accounting and auditing relief for production from certain 
marginal properties. This part does not apply to production from Indian 
leases, even if the Indian lease is within an agreement that qualifies 
as a marginal property.



Sec. 1204.2  What definitions apply to this part?

    Agreement means a federally approved communitization agreement or 
unit participating area.
    Barrels of oil equivalent (BOE) means the combined equivalent 
production of oil and gas stated in barrels of oil. Each barrel of oil 
production is equal to one BOE. Also, each 6,000 cubic feet of gas 
production is equal to one BOE.
    Base period means the 12-month period from July 1 through June 30 
immediately preceding the calendar year for which you take or request 
marginal property relief. For example, if you request relief for 
calendar year 2006, your base period is July 1, 2004, through June 30, 
2005.
    Combined equivalent production means the total of all oil and gas 
production for the marginal property, stated in BOE.
    Designee means the person designated by a lessee under Sec. 1218.52 
to make all or part of the royalty or other payments due on a lease on 
the lessee's behalf.
    Producing wells means only those producing oil or gas wells that 
contribute to the sum of BOE used in the calculation under Sec. 
1204.4(c). Producing wells do not include injection or water wells. 
Wells with multiple zones commingled downhole are considered as a single 
well.
    Property means a lease, a portion of a lease, or an agreement that 
may be a marginal property if it meets the qualification requirements of 
Sec. 1204.4.
    State concerned (State) means the State that receives a statutorily 
prescribed portion of the royalties from a Federal onshore or OCS lease.



Sec. 1204.3  What alternatives are available for marginal properties?

    If you have production from a marginal property, ONRR and the State 
may allow you the following options:
    (a) Prepay royalty. ONRR and the State may allow you to make a lump-
sum advance payment of royalties instead of monthly royalty payments for 
the remainder of the lease term. See subpart B for prepayment of royalty 
requirements.
    (b) Take accounting and auditing relief. ONRR and the State may 
allow various accounting and auditing relief options to encourage you to 
continue to produce and develop your marginal property. See subpart C 
for accounting and auditing relief requirements.



Sec. 1204.4  What is a marginal property under this part?

    (a) To qualify as a marginal property eligible for royalty 
prepayment or accounting and auditing relief under this part, the 
property must meet the following requirements:

------------------------------------------------------------------------
     If your lease is . . .           Then . . .           And . . .
------------------------------------------------------------------------
(1) Not in an agreement.........  The lease must      ..................
                                   qualify as a
                                   marginal property
                                   under paragraph
                                   (b) of this
                                   section.

[[Page 728]]

 
(2) Entirely or partly committed  The entire          Agreement
 to one agreement.                 agreement must      production
                                   qualify as a        allocable to your
                                   marginal property   lease may be
                                   under paragraph     eligible for
                                   (b) of this         relief under this
                                   section.            part. Any
                                                       production from
                                                       your lease that
                                                       is not committed
                                                       to the agreement
                                                       also may be
                                                       eligible for
                                                       separate relief
                                                       under paragraph
                                                       (a)(4) of this
                                                       table.
(3) Entirely or partly committed  Each agreement      For any agreement
 to more than one agreement.       must qualify        that does
                                   separately as a     qualify, that
                                   marginal property   agreement's
                                   under paragraph     production
                                   (b) of this         allocable to your
                                   section.            lease may be
                                                       eligible for
                                                       relief under this
                                                       part. Any
                                                       production from
                                                       your lease that
                                                       is not committed
                                                       to an agreement
                                                       also may be
                                                       eligible for
                                                       separate relief
                                                       under paragraph
                                                       (a)(4) of this
                                                       table.
(4) Partly committed to an        The part of the
 agreement and you have            lease that is not
 production from the part of the   committed to the
 lease that is not committed to    agreement must
 the agreement.                    qualify
                                   separately as a
                                   marginal property
                                   under paragraph
                                   (b) of this
                                   section.
------------------------------------------------------------------------

    (b) To qualify as a marginal property for a calendar year, the 
combined equivalent production of the property during the base period 
must equal an average daily well production of less than 15 barrels of 
oil equivalent (BOE) per well per day calculated under paragraph (c) of 
this section.
    (c) To determine the average daily well production for a property, 
divide the sum of the BOE for all producing wells on the property during 
the base period by the sum of the number of days that each of those 
wells actually produced during the base period. If the property is an 
agreement, your calculation under this paragraph must include all wells 
included in the agreement, even if they are not on a Federal onshore or 
OCS lease.



Sec. 1204.5  What statutory requirements must I meet to obtain royalty 

prepayment or accounting and auditing relief?

    (a) ONRR and the State may allow royalty prepayment or accounting 
and auditing relief for your marginal property production if ONRR and 
the State jointly determine that the prepayment or accounting and 
auditing relief is in the best interests of the Federal Government and 
the State to:
    (1) Promote production;
    (2) Reduce the administrative costs of ONRR and the State; and
    (3) Increase net receipts to the Federal Government and the State.
    (b) At any time, if ONRR and the State determine that either 
prepayment or accounting and auditing relief no longer meets the 
criteria in paragraph (a) of this section, ONRR, with the State's 
concurrence, may discontinue any prepayment or accounting and auditing 
relief options granted for production from any marginal property.
    (1) ONRR will provide you written notice of the decision to 
discontinue relief.
    (i) If you took the cumulative reports and payments relief option 
under Sec. 1204.202, your relief will terminate at the end of the 
calendar year in which you received the notice.
    (ii) If you were approved for prepayment relief under subpart B of 
this part or other relief under Sec. 1204.203, ONRR's notice will tell 
you when your relief terminates.
    (2) ONRR's decision to discontinue relief is not subject to 
administrative appeal.



Sec. 1204.6  May I appeal if ONRR denies my request for prepayment or other 

relief?

    If ONRR denies your request for prepayment relief under subpart B of 
this part or other relief under Sec. 1204.203, you may appeal under 30 
CFR part 1290.

Subpart B--Prepayment of Royalty [Reserved]

[[Page 729]]



                Subpart C_Accounting and Auditing Relief



Sec. 1204.200  What is the purpose of this subpart?

    This subpart explains how you as a lessee or designee may obtain 
accounting and auditing relief for your Federal onshore or OCS lease 
production from a marginal property. The two types of accounting and 
auditing relief that you can receive under this subpart are cumulative 
reports and payment relief (explained in Sec. 1204.202) and other 
accounting and auditing relief appropriate for your property (explained 
in Sec. 1204.203).



Sec. 1204.201  Who may obtain accounting and auditing relief?

    (a) You may obtain accounting and auditing relief under this 
subpart:
    (1) If you are a lessee or a designee for a Federal lease with 
production from a property that qualifies as a marginal property under 
Sec. 1204.4;
    (2) If you meet any additional requirements for specific types of 
relief under this subpart; and
    (3) Only for the fractional interest in production from the marginal 
property for which you report and pay royalty. You may obtain relief 
even if the other lessees or designees for your lease or agreement do 
not request relief.
    (b) You may not obtain one or both of the relief options specified 
in this subpart on any portion of production from a marginal property 
if:
    (1) The marginal property covers multiple States; and
    (2) One of the States determines under Sec. 1204.208 that it will 
not allow the relief option you seek.



Sec. 1204.202  What is the cumulative royalty reports and payments relief 

option?

    (a) The cumulative royalty reports and payments relief option allows 
you to submit one royalty report and payment annually for production 
during a calendar year. You are eligible for this option only if the 
total volume produced from the marginal property (not just your share of 
the production) is 1,000 BOE or less during the base period.
    (b) To use the cumulative royalty reports and payments relief 
option, you must do all of the following:
    (1) Notify ONRR in writing by January 31 of the calendar year for 
which you begin taking your relief. See Sec. 1204.205(a) for what your 
notification must contain;
    (2) Submit your royalty report and payment in accordance with 30 CFR 
1218.51(g) by the end of February of the year following the calendar 
year for which you reported annually, unless you have an estimated 
payment on file. If you have an estimated payment on file, you must 
submit your royalty report and payment by the end of March of the year 
following the calendar year for which you reported annually;
    (3) Use the sales month prior to the month that you submit your 
annual report and payment under paragraph (b)(2) of this section on your 
Report of Sales and Royalty Remittance, Form MMS-2014, for the entire 
previous calendar year's production for which you are paying annually. 
(For example, for a report in February use January as your sales month, 
and for a report in March use February as your sales month, to report 
production for the entire previous calendar year for which you are 
paying annually);
    (4) Report one line of cumulative royalty information on Form MMS-
2014 for the calendar year, the same as if it were a monthly report; and
    (5) Report allowances on Form MMS-2014 on the same annual basis as 
the royalties for your marginal property production.
    (c) If you do not pay your royalty by the date due in paragraph (b) 
of this section, you will owe late payment interest determined under 30 
CFR 1218.54 from the date your payment was due under this section until 
the date ONRR receives it.
    (d) If you take relief you are not qualified for, you may be liable 
for civil penalties. Also you must:
    (1) Pay ONRR late payment interest determined under Sec. 1218.54 
from the date your payment was due until the date ONRR receives it; and
    (2) Amend your Form MMS-2014 to reflect the required monthly 
reporting.
    (e) If you dispose of your ownership interest in a marginal property 
for

[[Page 730]]

which you have taken relief under this section (or if you are a designee 
who reports and pays royalty for a lessee who has disposed of its 
ownership interest), you must:
    (1) Report and pay royalties for the portion of the calendar year 
for which you had an ownership interest; and
    (2) Make the report and payment by the end of the month after you 
dispose of the ownership interest in the marginal property. If you do 
not report and pay timely, you will owe interest determined under Sec. 
218.54 from the date the payment was due under this section.



Sec. 1204.203  What is the other relief option?

    (a) Under this relief option, you may request any type of accounting 
and auditing relief that is appropriate for production from your 
marginal property, provided it is not prohibited under Sec. 1204.204 
and meets the statutory requirements of Sec. 1204.5. Examples of relief 
options you could request are:
    (1) To report and pay royalties using a valuation method other than 
that required under 30 CFR part 1206 that approximates royalties payable 
under that part 1206; and
    (2) To reduce your royalty audit burden. However, ONRR will not 
consider any request that eliminates ONRR's or the States' right to 
audit.
    (b) You must request approval from ONRR under Sec. 1204.205(b), and 
receive approval under Sec. 1204.206 before taking relief under this 
option.



Sec. 1204.204  What accounting and auditing relief will ONRR not allow?

    ONRR will not approve your request for accounting and auditing 
relief under this subpart if your request:
    (a) Prohibits ONRR or the State from conducting any form of audit;
    (b) Permanently relieves you from making future royalty reports or 
payments;
    (c) Provides for less frequent royalty reports and payments than 
annually;
    (d) Provides for you to submit royalty reports and payments at 
separate times;
    (e) Impairs ONRR's ability to properly or efficiently account for or 
distribute royalties;
    (f) Requests relief for a lease under which the Federal Government 
takes its royalties in kind;
    (g) Alters production reporting requirements;
    (h) Alters lease operation or safety requirements;
    (i) Conflicts with rent, minimum royalty, or lease requirements; or
    (j) Requests relief for production from a marginal property located 
in whole or in part in a State that has determined that it will not 
allow such relief under Sec. 1204.208.



Sec. 1204.205  How do I obtain accounting and auditing relief?

    (a) To take cumulative reports and payments relief under Sec. 
1204.202, you must notify ONRR in writing by January 31 of the calendar 
year for which you begin taking your relief.
    (1) Your notification must contain:
    (i) Your company name, ONRR-assigned payor code, address, phone 
number, and contact name; and
    (ii) The specific ONRR lease number and agreement number, if 
applicable.
    (2) You may file a single notification for multiple marginal 
properties.
    (b) To obtain other relief under Sec. 1204.203, you must file a 
written request for relief with ONRR.
    (1) Your request must contain:
    (i) Your company name, ONRR-assigned payor code, address, phone 
number, and contact name;
    (ii) The ONRR lease number and agreement number, if applicable; and
    (iii) A complete and detailed description of the specific accounting 
or auditing relief you seek.
    (2) You may file a single request for multiple marginal properties 
if you are requesting the same relief for all properties.



Sec. 1204.206  What will ONRR do when it receives my request for other relief?

    When ONRR receives your request for other relief under Sec. 
204.1205(b), it will notify you in writing as follows:
    (a) If your request for relief is complete, ONRR may either approve, 
deny, or modify your request in writing after consultation with any 
State required under Sec. 1204.207(b).

[[Page 731]]

    (1) If ONRR approves your request for relief, ONRR will notify you 
of the effective date of your accounting or auditing relief and other 
specifics of the relief approved.
    (2) If ONRR denies your relief request, ONRR will notify you of the 
reasons for denial and your appeal rights under Sec. 1204.6.
    (3) If ONRR modifies your relief request, ONRR will notify you of 
the modifications.
    (i) You have 60 days from your receipt of ONRR's notice to either 
accept or reject any modification(s) in writing.
    (ii) If you reject the modification(s) or fail to respond to ONRR's 
notice, ONRR will deny your relief request. ONRR will notify you in 
writing of the reasons for denial and your appeal rights under Sec. 
1204.6.
    (b) If your request for relief is not complete, ONRR will notify you 
in writing that your request is incomplete and identify any missing 
information.
    (1) You must submit the missing information within 60 days of your 
receipt of ONRR's notice that your request is incomplete.
    (2) After you submit all required information, ONRR may approve, 
deny, or modify your request for relief under paragraph (a) of this 
section.
    (3) If you do not submit all required information within 60 days of 
your receipt of ONRR's notice that your request is incomplete, ONRR will 
deny your relief request. ONRR will notify you in writing of the reasons 
for denial and your appeal rights under Sec. 1204.6.
    (4) You may submit a new request for relief under this subpart at 
any time after ONRR returns your incomplete request.



Sec. 1204.207  Who will approve, deny, or modify my request for accounting and 

auditing relief?

    (a) If there is not a State concerned for your marginal property, 
only ONRR will decide whether to approve, deny, or modify your relief 
request.
    (b) If there is a State concerned for your marginal property that 
has determined in advance under Sec. 1204.208 that it will allow either 
or both of the relief options under this subpart, ONRR will decide 
whether to approve, deny, or modify your relief request after consulting 
with the State concerned.

[69 FR 55088, Sept. 13, 2004, as amended at 76 FR 38561, July 1, 2011]



Sec. 1204.208  May a State decide that it will or will not allow one or both 

of the relief options under this subpart?

    (a) A State may decide in advance that it will or will not allow one 
or both of the relief options specified in this subpart for a particular 
calendar year. If a State decides that it will not consent to one or 
both of the relief options, ONRR will not grant that type of marginal 
property relief.
    (b) To help States decide whether to allow one or both of the relief 
options specified in this subpart, for each calendar year ONRR will send 
States a Report of Marginal Properties by October 1 preceding the 
calendar year.
    (c) If a State decides under paragraph (a) of this section that it 
will or will not allow one or both of the relief options in this subpart 
during the next calendar year, within 30 days of the State's receipt of 
the Report of Marginal Properties under paragraph (b) of this section, 
the State must:
    (1) Notify the Director for Office of Natural Resources Revenue, in 
writing, of its intent to allow or not allow one or both of the relief 
options under this subpart; and
    (2) Specify in its notice of intent to ONRR which relief option(s) 
it will allow or not allow.
    (d) If a State decides in advance under paragraph (a) of this 
section that it will not allow one or both of the relief options 
specified in this subpart, it may decide for subsequent calendar years 
that it will allow one or both of the relief options in this subpart. If 
it so decides, within 30 days of the State's receipt of the Report of 
Marginal Properties under paragraph (b) of this section, the State must:
    (1) Notify the Director for Office of Natural Resources Revenue, in 
writing, of its intent to allow one or both of the relief options 
allowed under this subpart during the next calendar year; and
    (2) Specify in its notice of intent to ONRR which relief option(s) 
it will allow.

[[Page 732]]

    (e) If a State does not notify ONRR under paragraph (c) or (d) of 
this section, the State will be deemed to have decided not to allow 
either of the relief options under this subpart for the next calendar 
year.
    (f) ONRR will publish a notice of the State s intent to allow or not 
allow certain relief options under this section in the Federal Register 
no later than 30 days before the beginning of the applicable calendar 
year.



Sec. 1204.209  What if a property ceases to qualify for relief obtained under 

this subpart?

    (a) A marginal property must qualify for relief under this subpart 
for each calendar year based on production during the base period for 
that calendar year. The notice or request you provided to ONRR under 
Sec. 1204.205 for the first calendar year that the property qualified 
for relief remains effective for successive calendar years if the 
property continues to qualify.
    (b) If a property is no longer eligible for relief for any reason 
during a calendar year other than the reason under Sec. 1204.210 or 
paragraph (c) of this section, the relief for the property terminates as 
of December 31 of that calendar year. You must notify ONRR in writing by 
December 31 that the relief for the property has terminated.
    (c) If you dispose of your interest in a marginal property during 
the calendar year, your relief terminates as of the end of the sales 
month in which you disposed of the property. Report and pay royalties 
for your production using the procedures in Sec. 1204.202(e).



Sec. 1204.210  What if a property is approved as part of a nonqualifying 

agreement?

    If the Bureau of Land Management (BLM) or BOEMRE retroactively 
approves a marginal property that qualified for relief for inclusion as 
part of an agreement that does not qualify for relief under this 
subpart, the property no longer qualifies for relief under this subpart 
then:
    (a) ONRR will not retroactively rescind the marginal property relief 
for production from your property under Sec. 1204.211;
    (b) Your marginal property relief terminates as of December 31 of 
the calendar year that you receive the BLM or BOEMRE approval of your 
marginal property as part of a nonqualifying agreement; and
    (c) For the calendar year in which you receive the BLM or BOEMRE 
approval, and for any previous period affected by the approval, the 
volumes on which you report and pay royalty for your lease must be 
amended to reflect all volumes produced on or allocated to your lease 
under the nonqualifying agreement as modified by BLM or BOEMRE. Report 
and pay royalties for your production using the procedures in Sec. 
1204.202(b).
    (d) If you owe additional royalties based on the retroactive 
agreement approval and do not pay your royalty by the date due in Sec. 
1204.202(b), you will owe late payment interest determined under Sec. 
1218.54 from the date your payment was due under Sec. 1204.202 (b)(2) 
until the date ONRR receives it.



Sec. 1204.211  When may ONRR rescind relief for a property?

    (a) ONRR may retroactively rescind the relief for your property if 
ONRR determines that your property was not eligible for the relief 
obtained under this subpart because:
    (1) You did not submit a notice or request for relief under Sec. 
1204.205;
    (2) You submitted erroneous information in the notice or request for 
relief you provided to ONRR under Sec. 1204.205 or in your royalty or 
production reports; or
    (3) Your property is no longer eligible for relief because 
production increased, but you failed to provide the notice required 
under Sec. 1204.209(b).
    (b) ONRR may rescind relief for your property if ONRR decides to 
take royalty in kind.



Sec. 1204.212  What if I took relief for which I was ineligible?

    If you took relief under this subpart for a period for which you 
were not eligible, you:
    (a) May owe additional royalties and late payment interest 
determined under Sec. 1218.54 from the date your additional payments 
were due until the date ONRR receives them; and

[[Page 733]]

    (b) May be subject to civil penalties.



Sec. 1204.213  May I obtain relief for a property that benefits from other 

Federal or State incentive programs?

    You may obtain accounting and auditing relief for production from a 
marginal property under this subpart even if the property benefits from 
other Federal or State production incentive programs.



Sec. 1204.214  Is minimum royalty due on a property for which I took relief?

    (a) If you took cumulative royalty reports and payment relief on a 
property under this subpart, minimum royalty is still due for that 
property by the date prescribed in your lease and in the amount 
prescribed therein.
    (b) If you pay minimum royalty on production from a marginal 
property during a calendar year for which you are taking cumulative 
royalty reports and payment relief, and:
    (1) The annual payment you owe under this subpart is greater than 
the minimum royalty you paid, you must pay the difference between the 
minimum royalty you paid and your annual payment due under this subpart; 
or
    (2) The annual payment you owe under this subpart is less than the 
minimum royalty you paid, you are not entitled to a credit because you 
must pay at least the minimum royalty amount on your lease each year.



Sec. 1204.215  Are the information collection requirements in this subpart 

approved by the Office of Management and Budget (OMB)?

    OMB has approved the information collection requirements contained 
in this subpart under 44 U.S.C. 3501 et seq., and assigned OMB control 
number 1010-0155. See 30 CFR part 1210 for details concerning your 
estimated reporting burden and how you may comment on the accuracy of 
the burden estimate.



PART 1206_PRODUCT VALUATION--Table of Contents



                      Subpart A_General Provisions

Sec.
1206.10 Information collection.

                          Subpart B_Indian Oil

1206.50 What is the purpose of this subpart?
1206.51 What definitions apply to this subpart?
1206.52 How do I calculate royalty value for oil that I or my affiliate 
          sell(s) or exchange(s) under an arm's-length contract?
1206.53 How do I determine value for oil that I or my affiliate do(es) 
          not sell under an arm's-length contract?
1206.54 How do I fulfill the lease provision regarding valuing 
          production on the basis of the major portion of like-quality 
          oil?
1206.55 What are my responsibilities to place production into marketable 
          condition and to market the production?
1206.56 Transportation allowances--general.
1206.57 Determination of transportation allowances.
1206.58 What must I do if ONRR finds that I have not properly determined 
          value?
1206.59 May I ask ONRR for valuation guidance?
1206.60 What are the quantity and quality bases for royalty settlement?
1206.61 What records must I keep and produce?
1206.62 Does ONRR protect information I provide?

                          Subpart C_Federal Oil

1206.100 What is the purpose of this subpart?
1206.101 What definitions apply to this subpart?
1206.102 How do I calculate royalty value for oil that I or my affiliate 
          sell(s) under an arm's-length contract?
1206.103 How do I value oil that is not sold under an arm's-length 
          contract?
1206.104 What publications are acceptable to ONRR?
1206.105 What records must I keep to support my calculations of value 
          under this subpart?
1206.106 What are my responsibilities to place production into 
          marketable condition and to market production?
1206.107 How do I request a value determination?
1206.108 Does ONRR protect information I provide?
1206.109 When may I take a transportation allowance in determining 
          value?
1206.110 How do I determine a transportation allowance under an arm's-
          length transportation contract?
1206.111 How do I determine a transportation allowance if I do not have 
          an arm's-length transportation contract or arm's-length 
          tariff?
1206.112 What adjustments and transportation allowances apply when I 
          value oil

[[Page 734]]

          production from my lease using NYMEX prices or ANS spot 
          prices?
1206.113 How will ONRR identify market centers?
1206.114 What are my reporting requirements under an arm's-length 
          transportation contract?
1206.115 What are my reporting requirements under a non-arm's-length 
          transportation arrangement?
1206.116 What interest applies if I improperly report a transportation 
          allowance?
1206.117 What reporting adjustments must I make for transportation 
          allowances?
1206.119 How are the royalty quantity and quality determined?
1206.120 How are operating allowances determined?

                          Subpart D_Federal Gas

1206.150 Purpose and scope.
1206.151 Definitions.
1206.152 Valuation standards--unprocessed gas.
1206.153 Valuation standards--processed gas.
1206.154 Determination of quantities and qualities for computing 
          royalties.
1206.155 Accounting for comparison.
1206.156 Transportation allowances--general.
1206.157 Determination of transportation allowances.
1206.158 Processing allowances--general.
1206.159 Determination of processing allowances.
1206.160 Operating allowances.

                          Subpart E_Indian Gas

1206.170 What does this subpart contain?
1206.171 What definitions apply to this subpart?
1206.172 How do I value gas produced from leases in an index zone?
1206.173 How do I calculate the alternative methodology for dual 
          accounting?
1206.174 How do I value gas production when an index-based method cannot 
          be used?
1206.175 How do I determine quantities and qualities of production for 
          computing royalties?
1206.176 How do I perform accounting for comparison?

                        Transportation Allowances

1206.177 What general requirements regarding transportation allowances 
          apply to me?
1206.178 How do I determine a transportation allowance?

                          Processing Allowances

1206.179 What general requirements regarding processing allowances apply 
          to me?
1206.180 How do I determine an actual processing allowance?
1206.181 How do I establish processing costs for dual accounting 
          purposes when I do not process the gas?

                         Subpart F_Federal Coal

1206.250 Purpose and scope.
1206.251 Definitions.
1206.252 Information collection.
1206.253 Coal subject to royalties--general provisions.
1206.254 Quality and quantity measurement standards for reporting and 
          paying royalties.
1206.255 Point of royalty determination.
1206.256 Valuation standards for cents-per-ton leases.
1206.257 Valuation standards for ad valorem leases.
1206.258 Washing allowances--general.
1206.259 Determination of washing allowances.
1206.260 Allocation of washed coal.
1206.261 Transportation allowances--general.
1206.262 Determination of transportation allowances.
1206.263 [Reserved]
1206.264 In-situ and surface gasification and liquefaction operations.
1206.265 Value enhancement of marketable coal.

                     Subpart G_Other Solid Minerals

1206.301 Value basis for royalty computation.

                     Subpart H_Geothermal Resources

1206.350 What is the purpose of this subpart?
1206.351 What definitions apply to this subpart?
1206.352 How do I calculate the royalty due on geothermal resources used 
          for commercial production or generation of electricity?
1206.353 How do I determine transmission deductions?
1206.354 How do I determine generating deductions?
1206.355 How do I calculate royalty due on geothermal resources I sell 
          at arm's length to a purchaser for direct use?
1206.356 How do I calculate royalty due on geothermal resources I use 
          for direct use purposes?
1206.357 How do I calculate royalty due on byproducts?
1206.358 What are byproduct transportation allowances?
1206.359 How do I determine byproduct transportation allowances?
1206.360 What records must I keep to support my calculations of royalty 
          or fees under this subpart?

[[Page 735]]

1206.361 How will ONRR determine whether my royalty or direct use fee 
          payments are correct?
1206.362 What are my responsibilities to place production into 
          marketable condition and to market production?
1206.363 When is an ONRR audit, review, reconciliation, monitoring, or 
          other like process considered final?
1206.364 How do I request a value or gross proceeds determination?
1206.365 Does ONRR protect information I provide?
1206.366 What is the nominal fee that a State, tribal, or local 
          government lessee must pay for the use of geothermal 
          resources?

Subpart I--OCS Sulfur [Reserved]

                          Subpart J_Indian Coal

1206.450 Purpose and scope.
1206.451 Definitions.
1206.452 Coal subject to royalties--general provisions.
1206.453 Quality and quantity measurement standards for reporting and 
          paying royalties.
1206.454 Point of royalty determination.
1206.455 Valuation standards for cents-per-ton leases.
1206.456 Valuation standards for ad valorem leases.
1206.457 Washing allowances--general.
1206.458 Determination of washing allowances.
1206.459 Allocation of washed coal.
1206.460 Transportation allowances--general.
1206.461 Determination of transportation allowances.
1206.462 [Reserved]
1206.463 In-situ and surface gasification and liquefaction operations.
1206.464 Value enhancement of marketable coal.

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq., 
1701 et seq.; 31 U.S.C. 9701.; 43 U.S.C. 1301 et seq., 1331 et seq., and 
1801 et seq.

    Editorial Note: Nomenclature changes to part 206 appear at 67 FR 
19111, Apr. 18, 2002.

    Source: 48 FR 35641, Aug. 5, 1983, unless otherwise noted. 
Redesignated at 75 FR 61069, Oct. 4, 2010.



                      Subpart A_General Provisions



Sec. 1206.10  Information collection.

    The information collection requirements contained in this part have 
been approved by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. The forms, filing date, and approved OMB clearance 
numbers are identified in Sec. 1210.10.

[57 FR 41863, Sept. 14, 1992]



                          Subpart B_Indian Oil

    Source: 61 FR 5455, Feb. 12, 1996, unless otherwise noted.



Sec. 1206.50  What is the purpose of this subpart?

    (a) This subpart applies to all oil produced from Indian (tribal and 
allotted) oil and gas leases (except leases on the Osage Indian 
Reservation, Osage County, Oklahoma). This subpart does not apply to 
Federal leases, including Federal leases for which revenues are shared 
with Alaska Native Corporations. This subpart:
    (1) Establishes the value of production for royalty purposes 
consistent with the Indian mineral leasing laws, other applicable laws, 
and lease terms;
    (2) Explains how you as a lessee must calculate the value of 
production for royalty purposes consistent with applicable statutes and 
lease terms; and
    (3) Is intended to ensure that the United States discharges its 
trust responsibilities for administering Indian oil and gas leases under 
the governing Indian mineral leasing laws, treaties, and lease terms.
    (b) If the regulations in this subpart are inconsistent with a 
Federal statute, a settlement agreement or written agreement as these 
terms are defined in this paragraph, or an express provision of an oil 
and gas lease subject to this subpart, then the statute, settlement 
agreement, written agreement, or lease provision will govern to the 
extent of the inconsistency. For purposes of this paragraph:
    (1) Settlement agreement means a settlement agreement that is 
between the United States and a lessee, or between an individual Indian 
mineral owner and a lessee and is approved by the United States, 
resulting from administrative or judicial litigation; and
    (2) Written agreement means a written agreement between the lessee 
and the ONRR Director (and approved by the

[[Page 736]]

tribal lessor for tribal leases) establishing a method to determine the 
value of production from any lease that ONRR expects at least would 
approximate the value established under this subpart.
    (c) The ONRR or Indian tribes may audit, or perform other compliance 
reviews, and require a lessee to adjust royalty payments and reports.

[72 FR 71241, Dec. 17, 2007]



Sec. 1206.51  What definitions apply to this subpart?

    For purposes of this subpart:
    Affiliate means a person who controls, is controlled by, or is under 
common control with another person.
    (1) Ownership or common ownership of more than 50 percent of the 
voting securities, or instruments of ownership, or other forms of 
ownership, of another person constitutes control. Ownership of less than 
10 percent constitutes a presumption of noncontrol that ONRR may rebut.
    (2) If there is ownership or common ownership of 10 through 50 
percent of the voting securities or instruments of ownership, or other 
forms of ownership, of another person, ONRR will consider the following 
factors in determining whether there is control in a particular case:
    (i) The extent to which there are common officers or directors;
    (ii) With respect to the voting securities, or instruments of 
ownership, or other forms of ownership:
    (A) The percentage of ownership or common ownership;
    (B) The relative percentage of ownership or common ownership 
compared to the percentage(s) of ownership by other persons;
    (C) Whether a person is the greatest single owner; and
    (D) Whether there is an opposing voting bloc of greater ownership;
    (iii) Operation of a lease, plant, or other facility;
    (iv) The extent of participation by other owners in operations and 
day-to-day management of a lease, plant, or other facility; and
    (v) Other evidence of power to exercise control over or common 
control with another person.
    (3) Regardless of any percentage of ownership or common ownership, 
relatives, either by blood or marriage, are affiliates.
    Area means a geographic region at least as large as the defined 
limits of an oil and/or gas field in which oil and/or gas lease products 
have similar quality, economic, and legal characteristics.
    Arm's-length contract means a contract or agreement between 
independent persons who are not affiliates and who have opposing 
economic interests regarding that contract. To be considered arm's 
length for any production month, a contract must satisfy this definition 
for that month, as well as when the contract was executed.
    Audit means a review, conducted in accordance with generally 
accepted accounting and auditing standards, of royalty payment 
compliance activities of lessees or other interest holders who pay 
royalties, rents, or bonuses on Indian leases.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Condensate means liquid hydrocarbons (generally exceeding 40 degrees 
of API gravity) recovered at the surface without resorting to 
processing. Condensate is the mixture of liquid hydrocarbons that 
results from condensation of petroleum hydrocarbons existing initially 
in a gaseous phase in an underground reservoir.
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Exchange agreement means an agreement where one person agrees to 
deliver oil to another person at a specified location in exchange for 
oil deliveries at another location, and other consideration. Exchange 
agreements:
    (1) May or may not specify prices for the oil involved;
    (2) Frequently specify dollar amounts reflecting location, quality, 
or other differentials;
    (3) Include buy/sell agreements, which specify prices to be paid at 
each exchange point and may appear to be two separate sales within the 
same

[[Page 737]]

agreement, or in separate agreements; and
    (4) May include, but are not limited to, exchanges of produced oil 
for specific types of oil (e.g., WTI); exchanges of produced oil for 
other oil at other locations (location trades); exchanges of produced 
oil for other grades of oil (grade trades); and multi-party exchanges.
    Field means a geographic region situated over one or more subsurface 
oil and gas reservoirs encompassing at least the outermost boundaries of 
all oil and gas accumulations known to be within those reservoirs 
vertically projected to the land surface. Onshore fields usually are 
given names, and their official boundaries are often designated by oil 
and gas regulatory agencies in the respective states in which the fields 
are located.
    Gathering means the movement of lease production to a central 
accumulation or treatment point on the lease, unit, or communitized 
area, or to a central accumulation or treatment point off the lease, 
unit, or communitized area as approved by BLM operations personnel.
    Gross proceeds means the total monies and other consideration 
accruing for the disposition of oil produced. Gross proceeds also 
include, but are not limited to, the following examples:
    (1) Payments for services, such as dehydration, marketing, 
measurement, or gathering that the lessee must perform at no cost to the 
lessor in order to put the production into marketable condition;
    (2) The value of services to put the production into marketable 
condition, such as salt water disposal, that the lessee normally 
performs but that the buyer performs on the lessee's behalf;
    (3) Reimbursements for harboring or terminaling fees;
    (4) Tax reimbursements, even though the Indian royalty interest may 
be exempt from taxation;
    (5) Payments made to reduce or buy down the purchase price of oil to 
be produced in later periods, by allocating those payments over the 
production whose price the payment reduces and including the allocated 
amounts as proceeds for the production as it occurs; and
    (6) Monies and all other consideration to which a seller is 
contractually or legally entitled, but does not seek to collect through 
reasonable efforts.
    Indian tribe means any Indian tribe, band, nation, pueblo, 
community, rancheria, colony, or other group of Indians for which any 
minerals or interest in minerals is held in trust by the United States 
or that is subject to Federal restriction against alienation.
    Individual Indian mineral owner means any Indian for whom minerals 
or an interest in minerals is held in trust by the United States or who 
holds title subject to Federal restriction against alienation.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States under an 
Indian mineral leasing law that authorizes exploration for, development 
or extraction of, or removal of lease products. Depending on the 
context, lease may also refer to the land area covered by that 
authorization.
    Lease products means any leased minerals attributable to, 
originating from, or allocated to Indian leases.
    Lessee means any person to whom the United States, a tribe, or 
individual Indian mineral owner issues a lease, and any person who has 
been assigned an obligation to make royalty or other payments required 
by the lease. Lessee includes:
    (1) Any person who has an interest in a lease (including operating 
rights owners); and
    (2) An operator, purchaser, or other person with no lease interest 
who makes royalty payments to ONRR or the lessor on the lessee's behalf
    Lessor means an Indian tribe or individual Indian mineral owner who 
has entered into a lease.
    Like-quality oil means oil that has similar chemical and physical 
characteristics.
    Location differential means an amount paid or received (whether in 
money or in barrels of oil) under an exchange agreement that results 
from differences in location between oil delivered in exchange and oil 
received in the exchange. A location differential may represent all or 
part of the difference

[[Page 738]]

between the price received for oil delivered and the price paid for oil 
received under a buy/sell exchange agreement.
    Marketable condition means lease products that are sufficiently free 
from impurities and otherwise in a condition that they will be accepted 
by a purchaser under a sales contract typical for the field or area.
    Net means to reduce the reported sales value to account for 
transportation instead of reporting a transportation allowance as a 
separate entry on Form MMS-2014.
    NYMEX price means the average of the New York Mercantile Exchange 
(NYMEX) settlement prices for light sweet oil delivered at Cushing, 
Oklahoma, calculated as follows:
    (1) Sum the prices published for each day during the calendar month 
of production (excluding weekends and holidays) for oil to be delivered 
in the nearest month of delivery for which NYMEX futures prices are 
published corresponding to each such day; and
    (2) Divide the sum by the number of days on which those prices are 
published (excluding weekends and holidays).
    Oil means a mixture of hydrocarbons that existed in the liquid phase 
in natural underground reservoirs and remains liquid at atmospheric 
pressure after passing through surface separating facilities and is 
marketed or used as such. Condensate recovered in lease separators or 
field facilities is considered to be oil.
    ONRR means the Office of Natural Resources Revenue of the Department 
of the Interior.
    Operating rights owner, also known as a working interest owner, 
means any person who owns operating rights in a lease subject to this 
subpart. A record title owner is the owner of operating rights under a 
lease until the operating rights have been transferred from record title 
(see Bureau of Land Management regulations at 43 CFR 3100.0-5(d)).
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Processing means any process designed to remove elements or 
compounds (hydrocarbon and nonhydrocarbon) from gas, including 
absorption, adsorption, or refrigeration. Field processes that normally 
take place on or near the lease, such as natural pressure reduction, 
mechanical separation, heating, cooling, dehydration, and compression, 
are not considered processing. The changing of pressures and/or 
temperatures in a reservoir is not considered processing.
    Quality differential means an amount paid or received under an 
exchange agreement (whether in money or in barrels of oil) that results 
from differences in API gravity, sulfur content, viscosity, metals 
content, and other quality factors between oil delivered and oil 
received in the exchange. A quality differential may represent all or 
part of the difference between the price received for oil delivered and 
the price paid for oil received under a buy/sell agreement.
    Sale means a contract between two persons where:
    (1) The seller unconditionally transfers title to the oil to the 
buyer and does not retain any related rights such as the right to buy 
back similar quantities of oil from the buyer elsewhere;
    (2) The buyer pays money or other consideration for the oil; and
    (3) The parties' intent is for a sale of the oil to occur.
    Sales type code means the contract type or general disposition 
(e.g., arm's-length or non-arm's-length) of production from the lease. 
The sales type code applies to the sales contract, or other disposition, 
and not to the arm's-length or non-arm's-length nature of a 
transportation allowance.
    Transportation allowance means a deduction in determining royalty 
value for the reasonable, actual costs of moving oil to a point of sale 
or delivery off the lease, unit area, or communitized area. The 
transportation allowance does not include gathering costs.
    WTI means West Texas Intermediate.
    You means a lessee, operator, or other person who pays royalties 
under this subpart.

[72 FR 71241, Dec. 17, 2007, as amended at 73 FR 15890, Mar. 26, 2008]

[[Page 739]]



Sec. 1206.52  How do I calculate royalty value for oil that I or my affiliate 

sell(s) or exchange(s) under an arm's-length contract?

    (a) The value of oil under this section is the gross proceeds 
accruing to the seller under the arm's-length contract, less applicable 
allowances determined under Sec. Sec. 1206.56 and 1206.57. If the 
arm's-length sales contract does not reflect the total consideration 
actually transferred either directly or indirectly from the buyer to the 
seller, you must value the oil sold as the total consideration accruing 
to the seller. Use this section to value oil that:
    (1) You sell under an arm's-length sales contract; or
    (2) You sell or transfer to your affiliate or another person under a 
non-arm's-length contract and that affiliate or person, or another 
affiliate of either of them, then sells the oil under an arm's-length 
contract.
    (b) If you have multiple arm's-length contracts to sell oil produced 
from a lease that is valued under paragraph (a) of this section, the 
value of the oil is the volume-weighted average of the total 
consideration established under this section for all contracts for the 
sale of oil produced from that lease.
    (c) If ONNR determines that the value under paragraph (a) of this 
section does not reflect the reasonable value of the production due to 
either:
    (1) Misconduct by or between the parties to the arm's-length 
contract; or
    (2) Breach of your duty to market the oil for the mutual benefit of 
yourself and the lessor, ONNR will establish a value based on other 
relevant matters.
    (i) The ONNR will not use this provision to simply substitute its 
judgment of the market value of the oil for the proceeds received by the 
seller under an arm's-length sales contract.
    (ii) The fact that the price received by the seller under an arm's-
length contract is less than other measures of market price is 
insufficient to establish breach of the duty to market unless ONNR finds 
additional evidence that the seller acted unreasonably or in bad faith 
in the sale of oil produced from the lease.
    (d) You must base value on the highest price that the seller can 
receive through legally enforceable claims under the oil sales contract. 
If the seller fails to take proper or timely action to receive prices or 
benefits to which it is entitled, you must base value on that obtainable 
price or benefit.
    (1) In some cases the seller may apply timely for a price increase 
or benefit allowed under the oil sales contract, but the purchaser 
refuses the seller's request. If this occurs, and the seller takes 
reasonable documented measures to force purchaser compliance, you will 
owe no additional royalties unless or until the seller receives monies 
or consideration resulting from the price increase or additional 
benefits. This paragraph (d)(1) does not permit you to avoid your 
royalty payment obligation if a purchaser fails to pay, pays only in 
part, or pays late.
    (2) Any contract revisions or amendments that reduce prices or 
benefits to which the seller is entitled must be in writing and signed 
by all parties to the arm's-length contract.
    (e) If you or your affiliate enter(s) into an arm's-length exchange 
agreement, or multiple sequential arm's-length exchange agreements, then 
you must value your oil under this paragraph.
    (1) If you or your affiliate exchange(s) oil at arm's length for WTI 
or equivalent oil at Cushing, Oklahoma, you must value the oil using the 
NYMEX price, adjusted for applicable location and quality differentials 
under paragraph (e)(3) of this section and any transportation costs 
under paragraph (e)(4) of this section and Sec. Sec. 1206.56 and 
1206.57.
    (2) If you do not exchange oil for WTI or equivalent oil at Cushing, 
but exchange it at arm's length for oil at another location and 
following the arm's-length exchange(s) you or your affiliate sell(s) the 
oil received in the exchange(s) under an arm's-length contract, then you 
must use the gross proceeds under your or your affiliate's arm's-length 
sales contract after the exchange(s) occur(s), adjusted for applicable 
location and quality differentials under paragraph (e)(3) of this 
section and any transportation costs under paragraph (e)(4) of this 
section and Sec. Sec. 1206.56 and 1206.57.

[[Page 740]]

    (3) You must adjust your gross proceeds for any location or quality 
differential, or other adjustments, you received or paid under the 
arm's-length exchange agreement(s). If ONNR determines that any exchange 
agreement does not reflect reasonable location or quality differentials, 
ONNR may adjust the differentials you used based on relevant 
information. You may not otherwise use the price or differential 
specified in an arm's-length exchange agreement to value your 
production.
    (4) If you value oil under this paragraph, ONNR will allow a 
deduction, under Sec. Sec. 1206.56 and 1206.57, for the reasonable, 
actual costs to transport the oil:
    (i) From the lease to a point where oil is given in exchange; and
    (ii) If oil is not exchanged to Cushing, Oklahoma, from the point 
where oil is received in exchange to the point where the oil received in 
exchange is sold.
    (5) If you or your affiliate exchange(s) your oil at arm's length, 
and neither paragraph (e)(1) nor (e)(2) of this section applies, ONNR 
will establish a value for the oil based on relevant matters. After ONNR 
establishes the value, you must report and pay royalties and any late 
payment interest owed based on that value.
    (f) You may not deduct any costs of gathering as part of a 
transportation deduction or allowance.
    (g) You must also comply with Sec. 1206.54.

[72 FR 71241, Dec. 17, 2007]



Sec. 1206.53  How do I determine value for oil that I or my affiliate do(es) 

not sell under an arm's-length contract?

    (a) The unit value of your oil not sold under an arm's-length 
contract is the volume-weighted average of the gross proceeds paid or 
received by you or your affiliate, including your refining affiliate, 
for purchases or sales under arm's-length contracts.
    (1) When calculating that unit value, use only purchases or sales of 
other like-quality oil produced from the field (or the same area if you 
do not have sufficient arm's-length purchases or sales of oil produced 
from the field) during the production month.
    (2) You may adjust the gross proceeds determined under paragraph (a) 
of this section for transportation costs under paragraph (c) of this 
section and Sec. Sec. 1206.56 and 1206.57 before including those 
proceeds in the volume-weighted average calculation.
    (3) If you have purchases away from the field(s) and cannot 
calculate a price in the field because you cannot determine the seller's 
cost of transportation that would be allowed under paragraph (c) of this 
section and Sec. Sec. 1206.56 and 1206.57, you must not include those 
purchases in your weighted-average calculation.
    (b) Before calculating the volume-weighted average, you must 
normalize the quality of the oil in your or your affiliate's arm's-
length purchases or sales to the same gravity as that of the oil 
produced from the lease. Use applicable gravity adjustment tables for 
the field (or the same general area for like-quality oil if you do not 
have gravity adjustment tables for the specific field) to normalize for 
gravity.

    Example to paragraph (b): 1. Assume that a lessee, who owns a 
refinery and refines the oil produced from the lease at that refinery, 
purchases like-quality oil from other producers in the same field at 
arm's length for use as feedstock in its refinery. Further assume that 
the oil produced from the lease that is being valued under this section 
is Wyoming general sour with an API gravity of 23.5[deg]. Assume that 
the refinery purchases at arm's length oil (all of which must be Wyoming 
general sour) in the following volumes of the API gravities stated at 
the prices and locations indicated:

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
10,000 bbl.........................  24.5[deg].............  $34.70/bbl............  Purchased in the field.
8,000 bbl..........................  24.0[deg].............  34.00/bbl.............  Purchased at the refinery
                                                                                      after the third-party
                                                                                      producer transported it to
                                                                                      the refinery, and the
                                                                                      lessee does not know the
                                                                                      transportation costs.
9,000 bbl..........................  23.0[deg].............  33.25/bbl.............  Purchased in the field.
4,000 bbl..........................  22.0[deg].............  33.00/bbl.............  Purchased in the field.
----------------------------------------------------------------------------------------------------------------


[[Page 741]]

    2. Because the lessee does not know the costs that the seller of the 
8,000 bbl incurred to transport that volume to the refinery, that volume 
will not be included in the volume-weighted average price calculation. 
Further assume that the gravity adjustment scale provides for a 
deduction of $0.02 per \1/10\ degree API gravity below 34[deg]. 
Normalized to 23.5[deg] (the gravity of the oil being valued under this 
section), the prices of each of the volumes that the refiner purchased 
that are included in the volume-weighted average calculation are as 
follows:

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
10,000 bbl.......................  24.5[deg]..........  $34.50.............  (1.0[deg] difference over 23.5[deg]
                                                                              = $0.20 deducted).
9,000 bbl........................  23.0[deg]..........  33.35..............  (0.5[deg] difference under
                                                                              23.5[deg] = $0.10 added).
4,000 bbl........................  22.0[deg]..........  33.30..............  (1.5[deg] difference under
                                                                              23.5[deg] = $0.30 added).
----------------------------------------------------------------------------------------------------------------

    3. The volume-weighted average price is ((10,000 bbl x $34.50/bbl) + 
(9,000 bbl x $33.35/bbl) + (4,000 bbl x $33.30/bbl)) / 23,000 bbl = 
$33.84/bbl. That price will be the value of the oil produced from the 
lease and refined prior to an arm's-length sale, under this section.

    (c) If you value oil under this section, ONNR will allow a 
deduction, under Sec. Sec. 1206.56 and 1206.57, for the reasonable, 
actual costs:
    (1) That you incur to transport oil that you or your affiliate 
sell(s), which is included in the weighted-average price calculation, 
from the lease to the point where the oil is sold; and
    (2) That the seller incurs to transport oil that you or your 
affiliate purchase(s), which is included in the weighted-average cost 
calculation, from the property where it is produced to the point where 
you or your affiliate purchase(s) it. You may not deduct any costs of 
gathering as part of a transportation deduction or allowance.
    (d) If paragraphs (a) and (b) of this section result in an 
unreasonable value for your production as a result of circumstances 
regarding that production, the ONNR Director may establish an 
alternative valuation method.
    (e) You must also comply with Sec. 1206.54.

[72 FR 71241, Dec. 17, 2007]



Sec. 1206.54  How do I fulfill the lease provision regarding valuing 

production on the basis of the major portion of like-quality oil?

    (a) For any Indian leases that provide that the Secretary may 
consider the highest price paid or offered for a major portion of 
production (major portion) in determining value for royalty purposes, if 
data are available to compute a major portion, ONNR will, where 
practicable, compare the value determined in accordance with this 
section with the major portion. The value to be used in determining the 
value of production, for royalty purposes, will be the higher of those 
two values.
    (b) For purposes of this paragraph, major portion means the highest 
price paid or offered at the time of production for the major portion of 
oil production from the same field. The major portion will be calculated 
using like-quality oil sold under arm's-length contracts from the same 
field (or, if necessary to obtain a reasonable sample, from the same 
area) for each month. All such oil production will be arrayed from 
highest price to lowest price (at the bottom). The major portion is that 
price at which 50 percent by volume plus one barrel of oil (starting 
from the bottom) is sold.

[72 FR 71241, Dec. 17, 2007]



Sec. 1206.55  What are my responsibilities to place production into marketable 

condition and to market the production?

    You must place oil in marketable condition and market the oil for 
the mutual benefit of yourself and the Indian lessor at no cost to the 
lessor, unless the lease agreement provides otherwise. If, in the 
process of marketing the oil or placing it in marketable condition, your 
gross proceeds are reduced because services are performed on your behalf 
that would be your responsibility, and if you valued the oil using your 
or your affiliate's gross proceeds (or gross proceeds received in the 
sale of oil received in exchange) under

[[Page 742]]

Sec. 1206.52, you must increase value to the extent that your gross 
proceeds are reduced.

[72 FR 71241, Dec. 17, 2007]



Sec. 1206.56  Transportation allowances--general.

    (a) Where the value of oil has been determined under Sec. 1206.52 
or Sec. 1206.53 of this subpart at a point (e.g., sales point or point 
of value determination) off the lease, ONNR shall allow a deduction for 
the reasonable, actual costs incurred by the lessee to transport oil to 
a point off the lease; provided, however, that no transportation 
allowance will be granted for transporting oil taken as Royalty-In-Kind 
(RIK); or
    (b)(1) Except as provided in paragraph (b)(2) of this section, the 
transportation allowance deduction on the basis of a sales type code may 
not exceed 50 percent of the value of the oil at the point of sale as 
determined under Sec. 1206.52 of this subpart. Transportation costs 
cannot be transferred between sales type codes or to other products.
    (2) Upon request of a lessee, ONNR may approve a transportation 
allowance deduction in excess of the limitation prescribed by paragraph 
(b)(1) of this section. The lessee must demonstrate that the 
transportation costs incurred in excess of the limitation prescribed in 
paragraph (b)(1) of this section were reasonable, actual, and necessary. 
An application for exception (using Form MMS-4393, Request to Exceed 
Regulatory Allowance Limitation) must contain all relevant and 
supporting documentation necessary for ONNR to make a determination. 
Under no circumstances may the value, for royalty purposes, under any 
sales type code, be reduced to zero.
    (c) Transportation costs must be allocated among all products 
produced and transported as provided in Sec. 1206.57. Transportation 
allowances for oil shall be expressed as dollars per barrel.
    (d) If, after a review or audit, ONNR determines that a lessee has 
improperly determined a transportation allowance authorized by this 
subpart, then the lessee will pay any additional royalties, plus 
interest determined in accordance with Sec. 1218.54 of this chapter, or 
will be entitled to a credit without interest.

[61 FR 5455, Feb. 12, 1996. Redesignated and amended at 72 FR 71241, 
Dec. 17, 2007; 73 FR 15890, Mar. 26, 2008]



Sec. 1206.57  Determination of transportation allowances.

    (a) Arm's-length transportation contracts. (1)(i) For transportation 
costs incurred by a lessee under an arm's-length contract, the 
transportation allowance shall be the reasonable, actual costs incurred 
by the lessee for transporting oil under that contract, except as 
provided in paragraphs (a)(1)(ii) and (a)(1)(iii) of this section, 
subject to monitoring, review, audit, and adjustment. The lessee shall 
have the burden of demonstrating that its contract is arm's-length. Such 
allowances shall be subject to the provisions of paragraph (f) of this 
section. Before any deduction may be taken, the lessee must submit a 
completed page one of Form MMS-4110 (and Schedule 1), Oil Transportation 
Allowance Report, in accordance with paragraph (c)(1) of this section. A 
transportation allowance may be claimed retroactively for a period of 
not more than 3 months prior to the first day of the month that Form 
MMS-4110 is filed with ONNR, unless ONNR approves a longer period upon a 
showing of good cause by the lessee.
    (ii) In conducting reviews and audits, ONNR will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the transporter for the 
transportation. If the contract reflects more than the total 
consideration, then ONNR may require that the transportation allowance 
be determined in accordance with paragraph (b) of this section.
    (iii) If ONNR determines that the consideration paid under an arm's-
length transportation contract does not reflect the reasonable value of 
the transportation because of misconduct by or between the contracting 
parties, or because the lessee otherwise has breached its duty to the 
lessor to market the production for the mutual benefit of the lessee and 
the lessor, then

[[Page 743]]

ONNR shall require that the transportation allowance be determined in 
accordance with paragraph (b) of this section. When ONNR determines that 
the value of the transportation may be unreasonable, ONNR will notify 
the lessee and give the lessee an opportunity to provide written 
information justifying the lessee's transportation costs.
    (2)(i) If an arm's-length transportation contract includes more than 
one liquid product, and the transportation costs attributable to each 
product cannot be determined from the contract, then the total 
transportation costs shall be allocated in a consistent and equitable 
manner to each of the liquid products transported in the same proportion 
as the ratio of the volume of each product (excluding waste products 
which have no value) to the volume of all liquid products (excluding 
waste products which have no value). Except as provided in this 
paragraph, no allowance may be taken for the costs of transporting lease 
production which is not royalty-bearing without ONNR approval.
    (ii) Notwithstanding the requirements of paragraph (i), the lessee 
may propose to ONNR a cost allocation method on the basis of the values 
of the products transported. ONNR shall approve the method unless it 
determines that it is not consistent with the purposes of the 
regulations in this part.
    (3) If an arm's-length transportation contract includes both gaseous 
and liquid products, and the transportation costs attributable to each 
product cannot be determined from the contract, the lessee shall propose 
an allocation procedure to ONNR. The lessee may use the oil 
transportation allowance determined in accordance with its proposed 
allocation procedure until ONNR issues its determination on the 
acceptability of the cost allocation. The lessee shall submit all 
available data to support its proposal. The initial proposal must be 
submitted by June 30, 1988 or within 3 months after the last day of the 
month for which the lessee requests a transportation allowance, 
whichever is later (unless ONNR approves a longer period). ONNR shall 
then determine the oil transportation allowance based upon the lessee's 
proposal and any additional information ONNR deems necessary.
    (4) Where the lessee's payments for transportation under an arm's-
length contract are not on a dollar-per-unit basis, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent for 
the purposes of this section.
    (5) Where an arm's-length sales contract price, or a posted price, 
includes a provision whereby the listed price is reduced by a 
transportation factor, ONNR will not consider the transportation factor 
to be a transportation allowance. The transportation factor may be used 
in determining the lessee's gross proceeds for the sale of the product. 
The transportation factor may not exceed 50 percent of the base price of 
the product without ONNR approval.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length transportation contract or has no contract, including those 
situations where the lessee performs transportation services for itself, 
the transportation allowance will be based upon the lessee's reasonable, 
actual costs as provided in this paragraph. All transportation 
allowances deducted under a non-arms-length or no-contract situation are 
subject to monitoring, review, audit, and adjustment. Before any 
estimated or actual deduction may be taken, the lessee must submit a 
completed Form MMS-4110 in its entirety in accordance with paragraph 
(c)(2) of this section. A transportation allowance may be claimed 
retroactively for a period of not more than 3 months prior to the first 
day of the month that Form MMS-4110 is filed with ONNR, unless ONNR 
approves a longer period upon a showing of good cause by the lessee. 
ONNR will monitor the allowance deductions to determine whether lessees 
are taking deductions that are reasonable and allowable. When necessary 
or appropriate, ONNR may direct a lessee to modify its actual 
transportation allowance deduction.
    (2) The transportation allowance for non-arms-length or no-contract 
situations shall be based upon the lessee's actual costs for 
transportation during

[[Page 744]]

the reporting period, including operating and maintenance expenses, 
overhead, and either depreciation and a return on undepreciated capital 
investment in accordance with paragraph (b)(2)(iv)(A) of this section, 
or a cost equal to the initial capital investment in the transportation 
system multiplied by a rate of return in accordance with paragraph 
(b)(2)(iv)(B) of this section. Allowable capital costs are generally 
those for depreciable fixed assets (including costs of delivery and 
installation of capital equipment) which are an integral part of the 
transportation system.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
transportation system; maintenance of equipment; maintenance labor; and 
other directly allocable and attributable maintenance expenses which the 
lessee can document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the transportation system is an allowable expense. 
State and Federal income taxes and severance taxes and other fees, 
including royalties, are not allowable expenses.
    (iv) A lessee may use either depreciation or a return on depreciable 
capital investment. After a lessee has elected to use either method for 
a transportation system, the lessee may not later elect to change to the 
other alternative without approval of ONNR.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the transportation system services or on 
a unit-of-production method. After an election is made, the lessee may 
not change methods without ONNR approval. A change in ownership of a 
transportation system shall not alter the depreciation schedule 
established by the original transporter/lessee for purposes of the 
allowance calculation. With or without a change in ownership, a 
transportation system shall be depreciated only once. Equipment shall 
not be depreciated below a reasonable salvage value.
    (B) ONNR shall allow as a cost an amount equal to the initial 
capital investment in the transportation system multiplied by the rate 
of return determined under paragraph (b)(2)(v) of this section. No 
allowance shall be provided for depreciation. This alternative shall 
apply only to transportation facilities first placed in service after 
March 1, 1988.
    (v) The rate of return shall be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return shall be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month of the reporting period for which the allowance is 
applicable and shall be effective during the reporting period. The rate 
shall be redetermined at the beginning of each subsequent transportation 
allowance reporting period (which is determined under paragraph (c) of 
this section).
    (3)(i) The deduction for transportation costs shall be determined on 
the basis of the lessee's cost of transporting each product through each 
individual transportation system. Where more than one liquid product is 
transported, allocation of costs to each of the liquid products 
transported shall be in the same proportion as the ratio of the volume 
of each liquid product (excluding waste products which have no value) to 
the volume of all liquid products (excluding waste products which have 
no value) and such allocation shall be made in a consistent and 
equitable manner. Except as provided in this paragraph, the lessee may 
not take an allowance for transporting lease production which is not 
royalty-bearing without ONNR approval.
    (ii) Notwithstanding the requirements of paragraph (i), the lessee 
may propose to ONNR a cost allocation method on the basis of the values 
of the products transported. ONNR shall approve the method unless it 
determines that it is not consistent with the purposes of the 
regulations in this part.
    (4) Where both gaseous and liquid products are transported through 
the

[[Page 745]]

same transportation system, the lessee shall propose a cost allocation 
procedure to ONNR. The lessee may use the oil transportation allowance 
determined in accordance with its proposed allocation procedure until 
ONNR issues its determination on the acceptability of the cost 
allocation. The lessee shall submit all available data to support its 
proposal. The initial proposal must be submitted by June 30, 1988 or 
within 3 months after the last day of the month for which the lessee 
requests a transportation allowance, whichever is later (unless ONNR 
approves a longer period). ONNR shall then determine the oil 
transportation allowance on the basis of the lessee's proposal and any 
additional information ONNR deems necessary.
    (5) A lessee may apply to ONNR for an exception from the requirement 
that it compute actual costs in accordance with paragraphs (b)(1) 
through (b)(4) of this section. ONNR will grant the exception only if 
the lessee has a tariff for the transportation system approved by the 
Federal Energy Regulatory Commission (FERC) for Indian leases. ONNR 
shall deny the exception request if it determines that the tariff is 
excessive as compared to arm's-length transportation charges by 
pipelines, owned by the lessee or others, providing similar 
transportation services in that area. If there are no arm's-length 
transportation charges, ONNR shall deny the exception request if:
    (i) No FERC cost analysis exists and the FERC has declined to 
investigate under ONNR timely objections upon filing; and
    (ii) the tariff significantly exceeds the lessee's actual costs for 
transportation as determined under this section.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) With the 
exception of those transportation allowances specified in paragraphs 
(c)(1)(v) and (c)(1)(vi) of this section, the lessee shall submit page 
one of the initial Form MMS-4110 (and Schedule 1), Oil Transportation 
Allowance Report, prior to, or at the same time as, the transportation 
allowance determined, under an arm's-length contract, is reported on 
Form MMS-2014, Report of Sales and Royalty Remittance. A Form MMS-4110 
received by the end of the month that the Form MMS-2014 is due shall be 
considered to be timely received.
    (ii) The initial Form MMS-4110 shall be effective for a reporting 
period beginning the month that the lessee is first authorized to deduct 
a transportation allowance and shall continue until the end of the 
calendar year, or until the applicable contract or rate terminates or is 
modified or amended, whichever is earlier.
    (iii) After the initial reporting period and for succeeding 
reporting periods, lessees must submit page one of Form MMS-4110 (and 
Schedule 1) within 3 months after the end of the calendar year, or after 
the applicable contract or rate terminates or is modified or amended, 
whichever is earlier, unless ONNR approves a longer period (during which 
period the lessee shall continue to use the allowance from the previous 
reporting period).
    (iv) ONNR may require that a lessee submit arm's-length 
transportation contracts, production agreements, operating agreements, 
and related documents. Documents shall be submitted within a reasonable 
time, as determined by ONNR.
    (v) Transportation allowances which are based on arm's-length 
contracts and which are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For the purposes of this section, only those allowances that have been 
approved by ONNR in writing shall qualify as being in effect at the time 
these regulations become effective.
    (vi) ONNR may establish, in appropriate circumstances, reporting 
requirements which are different from the requirements of this section.
    (2) Non-arm's-length or no contract. (i) With the exception of those 
transportation allowances specified in paragraphs (c)(2)(v), (c)(2)(vii) 
and (c)(2)(viii) of this section, the lessee shall submit an initial 
Form MMS-4110 prior to, or at the same time as, the transportation 
allowance determined under a non-arm's-length contract or no-contract 
situation is reported on Form MMS-2014. A Form MMS-4110 received by the 
end of the month that

[[Page 746]]

the Form MMS-2014 is due shall be considered to be timely received. The 
initial report may be based upon estimated costs.
    (ii) The initial Form MMS-4110 shall be effective for a reporting 
period beginning the month that the lessee first is authorized to deduct 
a transportation allowance and shall continue until the end of the 
calendar year, or until transportation under the non-arm's-length 
contract or the no-contract situation terminates, whichever is earlier.
    (iii) For calendar-year reporting periods succeeding the initial 
reporting period, the lessee shall submit a completed Form MMS-4110 
containing the actual costs for the previous reporting period. If oil 
transportation is continuing, the lessee shall include on Form MMS-4110 
its estimated costs for the next calendar year. The estimated oil 
transportation allowance shall be based on the actual costs for the 
previous reporting period plus or minus any adjustments which are based 
on the lessee's knowledge of decreases or increases that will affect the 
allowance. ONNR must receive the Form MMS-4110 within 3 months after the 
end of the previous reporting period, unless ONNR approves a longer 
period (during which period the lessee shall continue to use the 
allowance from the previous reporting period).
    (iv) For new transportation facilities or arrangements, the lessee's 
initial Form MMS-4110 shall include estimates of the allowable oil 
transportation costs for the applicable period. Cost estimates shall be 
based upon the most recently available operations data for the 
transportation system or, if such data are not available, the lessee 
shall use estimates based upon industry data for similar transportation 
systems.
    (v) Non-arm's-length contract or no-contract transportation 
allowances which are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For the purposes of this section, only those allowances that have been 
approved by ONNR in writing shall qualify as being in effect at the time 
these regulations become effective.
    (vi) Upon request by ONNR, the lessee shall submit all data used to 
prepare its Form MMS-4110. The data shall be provided within a 
reasonable period of time, as determined by ONNR.
    (vii) ONNR may establish, in appropriate circumstances, reporting 
requirements which are different from the requirements of this section.
    (viii) If the lessee is authorized to use its FERC-approved tariff 
as its transportation cost in accordance with paragraph (b)(5) of this 
section, it shall follow the reporting requirements of paragraph (c)(1) 
of this section.
    (3) may establish reporting dates for individual lessees different 
from those specified in this subpart in order to provide more effective 
administration. Lessees will be notified of any change in their 
reporting period.
    (4) Transportation allowances must be reported as a separate entry 
on Form MMS-2014, unless ONNR approves a different reporting procedure.
    (d) Interest assessments for incorrect or late reports and for 
failure to report. (1) If a lessee deducts a transportation allowance on 
its Form MMS-2014 without complying with the requirements of this 
section, the lessee shall pay interest only on the amount of such 
deduction until the requirements of this section are complied with. The 
lessee also shall repay the amount of any allowance which is disallowed 
by this section.
    (2) If a lessee erroneously reports a transportation allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with Sec. 1218.54 of this chapter.
    (e) Adjustments. (1) If the actual transportation allowance is less 
than the amount the lessee has taken on Form MMS-2014 for each month 
during the allowance form reporting period, the lessee must pay 
additional royalties due plus interest computed under Sec. 1218.54 of 
this chapter, retroactive to the first day of the first month the lessee 
is authorized to deduct a transportation allowance. If the actual 
transportation allowance is greater than the amount the lessee has taken 
on Form

[[Page 747]]

MMS-2014 for each month during the allowance form reporting period, the 
lessee will be entitled to a credit without interest.
    (2) For lessees transporting production from Indian leases, the 
lessee must submit a corrected Form MMS-2014 to reflect actual costs, 
together with any payment, in accordance with instructions provided 
byONRR.
    (f) Actual or theoretical losses. Notwithstanding any other 
provisions of this subpart, for other than arm's-length contracts, no 
cost shall be allowed for oil transportation which results from payments 
(either volumetric or for value) for actual or theoretical losses. This 
section does not apply when the transportation allowance is based upon a 
FERC or State regulatory agency approved tariff.
    (g) Other transportation cost determinations. The provisions of this 
section shall apply to determine transportation costs when establishing 
value using a netback valuation procedure or any other procedure that 
requires deduction of transportation costs.

[61 FR 5455, Feb. 12, 1996. Redesignated at 72 FR 71241, Dec. 17, 2007, 
as amended at 73 FR 15890, Mar. 26, 2008]



Sec. 1206.58  What must I do if ONRR finds that I have not properly determined 

value?

    (a) If ONRR finds that you have not properly determined value, you 
must:
    (1) Pay the difference, if any, between the royalty payments you 
made and those that are due, based upon the value ONRR establishes; and
    (2) Pay interest on the difference computed under Sec. 1218.54 of 
this chapter.
    (b) If you are entitled to a credit due to overpayment on Indian 
leases, see Sec. 1218.53 of this chapter. The credit will be without 
interest.

[72 FR 71244, Dec. 17, 2007]



Sec. 1206.59  May I ask ONRR for valuation guidance?

    You may ask ONRR for guidance in determining value. You may propose 
a value method to ONRR. Submit all available data related to your 
proposal and any additional information ONRR deems necessary. We will 
promptly review your proposal and provide you with non-binding guidance.

[72 FR 71244, Dec. 17, 2007]



Sec. 1206.60  What are the quantity and quality bases for royalty settlement?

    (a) You must compute royalties on the quantity and quality of oil as 
measured at the point of settlement approved by BLM for the lease.
    (b) If you determine the value of oil under Sec. 1206.52, Sec. 
1206.53, or Sec. 1206.54 of this subpart based on a quantity or quality 
different from the quantity or quality at the point of royalty 
settlement approved by BLM for the lease, you must adjust the value for 
those quantity or quality differences.
    (c) You may not deduct from the royalty volume or royalty value 
actual or theoretical losses incurred before the royalty settlement 
point unless BLM determines that any actual loss was unavoidable.

[72 FR 71244, Dec. 17, 2007]



Sec. 1206.61  What records must I keep and produce?

    (a) On request, you must make available sales, volume, and 
transportation data for production you sold, purchased, or obtained from 
the field or area. You must make this data available to ONRR, Indian 
representatives, or other authorized persons.
    (b) You must retain all data relevant to the determination of 
royalty value. Document retention and recordkeeping requirements are 
found at Sec. Sec. 1207.5, 1212.50, and 1212.51 of this chapter. The 
ONRR, Indian representatives, or other authorized persons may review and 
audit such data you possess, and ONRR will direct you to use a different 
value if it determines that the reported value is inconsistent with the 
requirements of this subpart or the lease.

[72 FR 71244, Dec. 17, 2007]



Sec. 1206.62  Does ONRR protect information I provide?

    The ONRR will keep confidential, to the extent allowed under 
applicable laws and regulations, any data or other information you 
submit that is privileged, confidential, or otherwise exempt from 
disclosure. All requests for

[[Page 748]]

information must be submitted under the Freedom of Information Act 
regulations of the Department of the Interior, 43 CFR part 2.

[72 FR 71244, Dec. 17, 2007]



                          Subpart C_Federal Oil

    Source: 65 FR 14088, Mar. 15, 2000, unless otherwise noted.



Sec. 1206.100  What is the purpose of this subpart?

    (a) This subpart applies to all oil produced from Federal oil and 
gas leases onshore and on the Outer Continental Shelf (OCS). It explains 
how you as a lessee must calculate the value of production for royalty 
purposes consistent with the mineral leasing laws, other applicable 
laws, and lease terms.
    (b) If you are a designee and if you dispose of production on behalf 
of a lessee, the terms ``you'' and ``your'' in this subpart refer to you 
and not to the lessee. In this circumstance, you must determine and 
report royalty value for the lessee's oil by applying the rules in this 
subpart to your disposition of the lessee's oil.
    (c) If you are a designee and only report for a lessee, and do not 
dispose of the lessee's production, references to ``you'' and ``your'' 
in this subpart refer to the lessee and not the designee. In this 
circumstance, you as a designee must determine and report royalty value 
for the lessee's oil by applying the rules in this subpart to the 
lessee's disposition of its oil.
    (d) If the regulations in this subpart are inconsistent with:
    (1) A Federal statute;
    (2) A settlement agreement between the United States and a lessee 
resulting from administrative or judicial litigation;
    (3) A written agreement between the lessee and the ONRR Director 
establishing a method to determine the value of production from any 
lease that ONRR expects at least would approximate the value established 
under this subpart; or
    (4) An express provision of an oil and gas lease subject to this 
subpart, then the statute, settlement agreement, written agreement, or 
lease provision will govern to the extent of the inconsistency.
    (e) ONRR may audit and adjust all royalty payments.



Sec. 1206.101  What definitions apply to this subpart?

    The following definitions apply to this subpart:
    Affiliate means a person who controls, is controlled by, or is under 
common control with another person. For purposes of this subpart:
    (1) Ownership or common ownership of more than 50 percent of the 
voting securities, or instruments of ownership, or other forms of 
ownership, of another person constitutes control. Ownership of less than 
10 percent constitutes a presumption of noncontrol that ONRR may rebut.
    (2) If there is ownership or common ownership of 10 through 50 
percent of the voting securities or instruments of ownership, or other 
forms of ownership, of another person, ONRR will consider the following 
factors in determining whether there is control under the circumstances 
of a particular case:
    (i) The extent to which there are common officers or directors;
    (ii) With respect to the voting securities, or instruments of 
ownership, or other forms of ownership: the percentage of ownership or 
common ownership, the relative percentage of ownership or common 
ownership compared to the percentage(s) of ownership by other persons, 
whether a person is the greatest single owner, or whether there is an 
opposing voting bloc of greater ownership;
    (iii) Operation of a lease, plant, or other facility;
    (iv) The extent of participation by other owners in operations and 
day-to-day management of a lease, plant, or other facility; and
    (v) Other evidence of power to exercise control over or common 
control with another person.
    (3) Regardless of any percentage of ownership or common ownership, 
relatives, either by blood or marriage, are affiliates.
    ANS means Alaska North Slope (ANS).
    Area means a geographic region at least as large as the limits of an 
oil

[[Page 749]]

field, in which oil has similar quality, economic, and legal 
characteristics.
    Arm's-length contract means a contract or agreement between 
independent persons who are not affiliates and who have opposing 
economic interests regarding that contract. To be considered arm's 
length for any production month, a contract must satisfy this definition 
for that month, as well as when the contract was executed.
    Audit means a review, conducted under generally accepted accounting 
and auditing standards, of royalty payment compliance activities of 
lessees, designees or other persons who pay royalties, rents, or bonuses 
on Federal leases.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Condensate means liquid hydrocarbons (normally exceeding 40 degrees 
of API gravity) recovered at the surface without processing. Condensate 
is the mixture of liquid hydrocarbons resulting from condensation of 
petroleum hydrocarbons existing initially in a gaseous phase in an 
underground reservoir.
    Contract means any oral or written agreement, including amendments 
or revisions, between two or more persons, that is enforceable by law 
and that with due consideration creates an obligation.
    Designee means the person the lessee designates to report and pay 
the lessee's royalties for a lease.
    Exchange agreement means an agreement where one person agrees to 
deliver oil to another person at a specified location in exchange for 
oil deliveries at another location. Exchange agreements may or may not 
specify prices for the oil involved. They frequently specify dollar 
amounts reflecting location, quality, or other differentials. Exchange 
agreements include buy/sell agreements, which specify prices to be paid 
at each exchange point and may appear to be two separate sales within 
the same agreement. Examples of other types of exchange agreements 
include, but are not limited to, exchanges of produced oil for specific 
types of crude oil (e.g., West Texas Intermediate); exchanges of 
produced oil for other crude oil at other locations (Location Trades); 
exchanges of produced oil for other grades of oil (Grade Trades); and 
multi-party exchanges.
    Field means a geographic region situated over one or more subsurface 
oil and gas reservoirs and encompassing at least the outermost 
boundaries of all oil and gas accumulations known within those 
reservoirs, vertically projected to the land surface. State oil and gas 
regulatory agencies usually name onshore fields and designate their 
official boundaries. ONRR names and designates boundaries of OCS fields.
    Gathering means the movement of lease production to a central 
accumulation or treatment point on the lease, unit, or communitized 
area, or to a central accumulation or treatment point off the lease, 
unit, or communitized area that BLM or ONRR approves for onshore and 
offshore leases, respectively.
    Gross proceeds means the total monies and other consideration 
accruing for the disposition of oil produced. Gross proceeds also 
include, but are not limited to, the following examples:
    (1) Payments for services such as dehydration, marketing, 
measurement, or gathering which the lessee must perform at no cost to 
the Federal Government;
    (2) The value of services, such as salt water disposal, that the 
producer normally performs but that the buyer performs on the producer's 
behalf;
    (3) Reimbursements for harboring or terminaling fees;
    (4) Tax reimbursements, even though the Federal royalty interest may 
be exempt from taxation;
    (5) Payments made to reduce or buy down the purchase price of oil to 
be produced in later periods, by allocating such payments over the 
production whose price the payment reduces and including the allocated 
amounts as proceeds for the production as it occurs; and
    (6) Monies and all other consideration to which a seller is 
contractually or legally entitled, but does not seek to collect through 
reasonable efforts.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by

[[Page 750]]

the United States under a mineral leasing law that authorizes 
exploration for, development or extraction of, or removal of oil or 
gas--or the land area covered by that authorization, whichever the 
context requires.
    Lessee means any person to whom the United States issues an oil and 
gas lease, an assignee of all or a part of the record title interest, or 
any person to whom operating rights in a lease have been assigned.
    Location differential means an amount paid or received (whether in 
money or in barrels of oil) under an exchange agreement that results 
from differences in location between oil delivered in exchange and oil 
received in the exchange. A location differential may represent all or 
part of the difference between the price received for oil delivered and 
the price paid for oil received under a buy/sell exchange agreement.
    Market center means a major point ONRR recognizes for oil sales, 
refining, or transshipment. Market centers generally are locations where 
ONRR-approved publications publish oil spot prices.
    Marketable condition means oil sufficiently free from impurities and 
otherwise in a condition a purchaser will accept under a sales contract 
typical for the field or area.
    Netting means reducing the reported sales value to account for 
transportation instead of reporting a transportation allowance as a 
separate entry on Form MMS-2014.
    NYMEX price means the average of the New York Mercantile Exchange 
(NYMEX) settlement prices for light sweet crude oil delivered at 
Cushing, Oklahoma, calculated as follows:
    (1) Sum the prices published for each day during the calendar month 
of production (excluding weekends and holidays) for oil to be delivered 
in the prompt month corresponding to each such day; and
    (2) Divide the sum by the number of days on which those prices are 
published (excluding weekends and holidays).
    Oil means a mixture of hydrocarbons that existed in the liquid phase 
in natural underground reservoirs, remains liquid at atmospheric 
pressure after passing through surface separating facilities, and is 
marketed or used as a liquid. Condensate recovered in lease separators 
or field facilities is oil.
    ONRR-approved publication means a publication ONRR approves for 
determining ANS spot prices or WTI differentials.
    Outer Continental Shelf (OCS) means all submerged lands lying 
seaward and outside of the area of lands beneath navigable waters as 
defined in Section 2 of the Submerged Lands Act (43 U.S.C. 1301) and of 
which the subsoil and seabed appertain to the United States and are 
subject to its jurisdiction and control.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Prompt month means the nearest month of delivery for which NYMEX 
futures prices are published during the trading month.
    Quality differential means an amount paid or received under an 
exchange agreement (whether in money or in barrels of oil) that results 
from differences in API gravity, sulfur content, viscosity, metals 
content, and other quality factors between oil delivered and oil 
received in the exchange. A quality differential may represent all or 
part of the difference between the price received for oil delivered and 
the price paid for oil received under a buy/sell agreement.
    Rocky Mountain Region means the States of Colorado, Montana, North 
Dakota, South Dakota, Utah, and Wyoming, except for those portions of 
the San Juan Basin and other oil-producing fields in the ``Four 
Corners'' area that lie within Colorado and Utah.
    Roll means an adjustment to the NYMEX price that is calculated as 
follows:
    Roll = .6667 x (P0-P1) + .3333 x 
(P0-P2), where: P0 = the average of the 
daily NYMEX settlement prices for deliveries during the prompt month 
that is the same as the month of production, as published for each day 
during the trading month for which the month of production is the prompt 
month; P1 = the average of the daily NYMEX settlement prices 
for deliveries during the month following the month of production, 
published for each day during the

[[Page 751]]

trading month for which the month of production is the prompt month; and 
P2 = the average of the daily NYMEX settlement prices for 
deliveries during the second month following the month of production, as 
published for each day during the trading month for which the month of 
production is the prompt month. Calculate the average of the daily NYMEX 
settlement prices using only the days on which such prices are published 
(excluding weekends and holidays).
    (1) Example 1. Prices in Out Months are Lower Going Forward: The 
month of production for which you must determine royalty value is March. 
March was the prompt month (for year 2003) from January 22 through 
February 20. April was the first month following the month of 
production, and May was the second month following the month of 
production. P0 therefore is the average of the daily NYMEX 
settlement prices for deliveries during March published for each 
business day between January 22 and February 20. P1 is the 
average of the daily NYMEX settlement prices for deliveries during April 
published for each business day between January 22 and February 20. 
P2 is the average of the daily NYMEX settlement prices for 
deliveries during May published for each business day between January 22 
and February 20. In this example, assume that P0 = $28.00 per 
bbl, P1 = $27.70 per bbl, and P2 = $27.10 per bbl. 
In this example (a declining market), Roll = .6667 x ($28.00-$27.70) + 
.3333 x ($28.00-$27.10) = $.20 + $.30 = $.50. You add this number to the 
NYMEX price.
    (2) Example 2. Prices in Out Months are Higher Going Forward: The 
month of production for which you must determine royalty value is July. 
July 2003 was the prompt month from May 21 through June 20. August was 
the first month following the month of production, and September was the 
second month following the month of production. P0 therefore 
is the average of the daily NYMEX settlement prices for deliveries 
during July published for each business day between May 21 and June 20. 
P1 is the average of the daily NYMEX settlement prices for 
deliveries during August published for each business day between May 21 
and June 20. P2 is the average of the daily NYMEX settlement 
prices for deliveries during September published for each business day 
between May 21 and June 20. In this example, assume that P0 = 
$28.00 per bbl, P1 = $28.90 per bbl, and P2 = 
$29.50 per bbl. In this example (a rising market), Roll = .6667 x 
($28.00-$28.90) + .3333 x ($28.00-$29.50) = (-$.60) + (-$.50) = -$1.10. 
You add this negative number to the NYMEX price (effectively a 
subtraction from the NYMEX price).
    Sale means a contract between two persons where:
    (1) The seller unconditionally transfers title to the oil to the 
buyer and does not retain any related rights such as the right to buy 
back similar quantities of oil from the buyer elsewhere;
    (2) The buyer pays money or other consideration for the oil; and
    (3) The parties' intent is for a sale of the oil to occur.
    Spot price means the price under a spot sales contract where:
    (1) A seller agrees to sell to a buyer a specified amount of oil at 
a specified price over a specified period of short duration;
    (2) No cancellation notice is required to terminate the sales 
agreement; and
    (3) There is no obligation or implied intent to continue to sell in 
subsequent periods.
    Tendering program means a producer's offer of a portion of its crude 
oil produced from a field or area for competitive bidding, regardless of 
whether the production is offered or sold at or near the lease or unit 
or away from the lease or unit.
    Trading month means the period extending from the second business 
day before the 25th day of the second calendar month preceding the 
delivery month (or, if the 25th day of that month is a non-business day, 
the second business day before the last business day preceding the 25th 
day of that month) through the third business day before the 25th day of 
the calendar month preceding the delivery month (or, if the 25th day of 
that month is a non-business day, the third business day before the last 
business day preceding the 25th day of that month), unless the NYMEX 
publishes a different

[[Page 752]]

definition or different dates on its official Web site, www.nymex.com, 
in which case the NYMEX definition will apply.
    Transportation allowance means a deduction in determining royalty 
value for the reasonable, actual costs of moving oil to a point of sale 
or delivery off the lease, unit area, or communitized area. The 
transportation allowance does not include gathering costs.
    WTI differential means the average of the daily mean differentials 
for location and quality between a grade of crude oil at a market center 
and West Texas Intermediate (WTI) crude oil at Cushing published for 
each day for which price publications perform surveys for deliveries 
during the production month, calculated over the number of days on which 
those differentials are published (excluding weekends and holidays). 
Calculate the daily mean differentials by averaging the daily high and 
low differentials for the month in the selected publication. Use only 
the days and corresponding differentials for which such differentials 
are published.
    (1) Example. Assume the production month was March 2003. Industry 
trade publications performed their price surveys and determined 
differentials during January 26 through February 25 for oil delivered in 
March. The WTI differential (for example, the West Texas Sour crude at 
Midland, Texas, spread versus WTI) applicable to valuing oil produced in 
the March 2003 production month would be determined using all the 
business days for which differentials were published during the period 
January 26 through February 25 excluding weekends and holidays (22 
days). To calculate the WTI differential, add together all of the daily 
mean differentials published for January 26 through February 25 and 
divide that sum by 22.
    (2) [Reserved]

[65 FR 14088, Mar. 15, 2000, as amended at 69 FR 24975, May 5, 2004]



Sec. 1206.102  How do I calculate royalty value for oil that I or my affiliate 

sell(s) under an arm's-length contract?

    (a) The value of oil under this section is the gross proceeds 
accruing to the seller under the arm's-length contract, less applicable 
allowances determined under Sec. 1206.110 or Sec. 1206.111. This value 
does not apply if you exercise an option to use a different value 
provided in paragraph (d)(1) or (d)(2)(i) of this section, or if one of 
the exceptions in paragraph (c) of this section applies. Use this 
paragraph (a) to value oil that:
    (1) You sell under an arm's-length sales contract; or
    (2) You sell or transfer to your affiliate or another person under a 
non-arm's-length contract and that affiliate or person, or another 
affiliate of either of them, then sells the oil under an arm's-length 
contract, unless you exercise the option provided in paragraph (d)(2)(i) 
of this section.
    (b) If you have multiple arm's-length contracts to sell oil produced 
from a lease that is valued under paragraph (a) of this section, the 
value of the oil is the volume-weighted average of the values 
established under this section for each contract for the sale of oil 
produced from that lease.
    (c) This paragraph contains exceptions to the valuation rule in 
paragraph (a) of this section. Apply these exceptions on an individual 
contract basis.
    (1) In conducting reviews and audits, if ONRR determines that any 
arm's-length sales contract does not reflect the total consideration 
actually transferred either directly or indirectly from the buyer to the 
seller, ONRR may require that you value the oil sold under that contract 
either under Sec. 1206.103 or at the total consideration received.
    (2) You must value the oil under Sec. 1206.103 if ONRR determines 
that the value under paragraph (a) of this section does not reflect the 
reasonable value of the production due to either:
    (i) Misconduct by or between the parties to the arm's-length 
contract; or
    (ii) Breach of your duty to market the oil for the mutual benefit of 
yourself and the lessor.
    (A) ONRR will not use this provision to simply substitute its 
judgment of the market value of the oil for the proceeds received by the 
seller under an arm's-length sales contract.
    (B) The fact that the price received by the seller under an arm's 
length contract is less than other measures of

[[Page 753]]

market price, such as index prices, is insufficient to establish breach 
of the duty to market unless ONRR finds additional evidence that the 
seller acted unreasonably or in bad faith in the sale of oil from the 
lease.
    (d)(1) If you enter into an arm's-length exchange agreement, or 
multiple sequential arm's-length exchange agreements, and following the 
exchange(s) you or your affiliate sell(s) the oil received in the 
exchange(s) under an arm's-length contract, then you may use either 
Sec. 1206.102(a) or Sec. 1206.103 to value your production for royalty 
purposes.
    (i) If you use Sec. 1206.102(a), your gross proceeds are the gross 
proceeds under your or your affiliate's arm's-length sales contract 
after the exchange(s) occur(s). You must adjust your gross proceeds for 
any location or quality differential, or other adjustments, you received 
or paid under the arm's-length exchange agreement(s). If ONRR determines 
that any arm's-length exchange agreement does not reflect reasonable 
location or quality differentials, ONRR may require you to value the oil 
under Sec. 1206.103. You may not otherwise use the price or 
differential specified in an arm's-length exchange agreement to value 
your production.
    (ii) When you elect under Sec. 1206.102(d)(1) to use Sec. 
1206.102(a) or Sec. 1206.103, you must make the same election for all 
of your production from the same unit, communitization agreement, or 
lease (if the lease is not part of a unit or communitization agreement) 
sold under arm's-length contracts following arm's-length exchange 
agreements. You may not change your election more often than once every 
2 years.
    (2)(i) If you sell or transfer your oil production to your affiliate 
and that affiliate or another affiliate then sells the oil under an 
arm's-length contract, you may use either Sec. 1206.102(a) or Sec. 
1206.103 to value your production for royalty purposes.
    (ii) When you elect under Sec. 1206.102(d)(2)(i) to use Sec. 
1206.102(a) or Sec. 1206.103, you must make the same election for all 
of your production from the same unit, communitization agreement, or 
lease (if the lease is not part of a unit or communitization agreement) 
that your affiliates resell at arm's length. You may not change your 
election more often than once every 2 years.
    (e) If you value oil under paragraph (a) of this section:
    (1) ONRR may require you to certify that your or your affiliate's 
arm's-length contract provisions include all of the consideration the 
buyer must pay, either directly or indirectly, for the oil.
    (2) You must base value on the highest price the seller can receive 
through legally enforceable claims under the contract.
    (i) If the seller fails to take proper or timely action to receive 
prices or benefits it is entitled to, you must pay royalty at a value 
based upon that obtainable price or benefit. But you will owe no 
additional royalties unless or until the seller receives monies or 
consideration resulting from the price increase or additional benefits, 
if:
    (A) The seller makes timely application for a price increase or 
benefit allowed under the contract;
    (B) The purchaser refuses to comply; and
    (C) The seller takes reasonable documented measures to force 
purchaser compliance.
    (ii) Paragraph (e)(2)(i) of this section will not permit you to 
avoid your royalty payment obligation where a purchaser fails to pay, 
pays only in part, or pays late. Any contract revisions or amendments 
that reduce prices or benefits to which the seller is entitled must be 
in writing and signed by all parties to the arm's-length contract.



Sec. 1206.103  How do I value oil that is not sold under an arm's-length 

contract?

    This section explains how to value oil that you may not value under 
Sec. 1206.102 or that you elect under Sec. 1206.102(d) to value under 
this section. First determine whether paragraph (a), (b), or (c) of this 
section applies to production from your lease, or whether you may apply 
paragraph (d) or (e) with ONRR approval.
    (a) Production from leases in California or Alaska. Value is the 
average of the daily mean ANS spot prices published

[[Page 754]]

in any ONRR-approved publication during the trading month most 
concurrent with the production month. (For example, if the production 
month is June, compute the average of the daily mean prices using the 
daily ANS spot prices published in the ONRR-approved publication for all 
the business days in June.)
    (1) To calculate the daily mean spot price, average the daily high 
and low prices for the month in the selected publication.
    (2) Use only the days and corresponding spot prices for which such 
prices are published.
    (3) You must adjust the value for applicable location and quality 
differentials, and you may adjust it for transportation costs, under 
Sec. 1206.112.
    (4) After you select an ONRR-approved publication, you may not 
select a different publication more often than once every 2 years, 
unless the publication you use is no longer published or ONRR revokes 
its approval of the publication. If you are required to change 
publications, you must begin a new 2-year period.
    (b) Production from leases in the Rocky Mountain Region. This 
paragraph provides methods and options for valuing your production under 
different factual situations. You must consistently apply paragraph 
(b)(1), (b)(2), or (b)(3) of this section to value all of your 
production from the same unit, communitization agreement, or lease (if 
the lease or a portion of the lease is not part of a unit or 
communitization agreement) that you cannot value under Sec. 1206.102 or 
that you elect under Sec. 1206.102(d) to value under this section.
    (1) If you have an ONRR-approved tendering program, you must value 
oil produced from leases in the area the tendering program covers at the 
highest winning bid price for tendered volumes.
    (i) The minimum requirements for ONRR to approve your tendering 
program are:
    (A) You must offer and sell at least 30 percent of your or your 
affiliates' production from both Federal and non-Federal leases in the 
area under your tendering program; and
    (B) You must receive at least three bids for the tendered volumes 
from bidders who do not have their own tendering programs that cover 
some or all of the same area.
    (ii) If you do not have an ONRR-approved tendering program, you may 
elect to value your oil under either paragraph (b)(2) or (b)(3) of this 
section. After you select either paragraph (b)(2) or (b)(3) of this 
section, you may not change to the other method more often than once 
every 2 years, unless the method you have been using is no longer 
applicable and you must apply the other paragraph. If you change 
methods, you must begin a new 2-year period.
    (2) Value is the volume-weighted average of the gross proceeds 
accruing to the seller under your or your affiliates' arm's-length 
contracts for the purchase or sale of production from the field or area 
during the production month.
    (i) The total volume purchased or sold under those contracts must 
exceed 50 percent of your and your affiliates' production from both 
Federal and non-Federal leases in the same field or area during that 
month.
    (ii) Before calculating the volume-weighted average, you must 
normalize the quality of the oil in your or your affiliates' arm's-
length purchases or sales to the same gravity as that of the oil 
produced from the lease.
    (3) Value is the NYMEX price (without the roll), adjusted for 
applicable location and quality differentials and transportation costs 
under Sec. 1206.112.
    (4) If you demonstrate to ONRR's satisfaction that paragraphs (b)(1) 
through (b)(3) of this section result in an unreasonable value for your 
production as a result of circumstances regarding that production, the 
ONRR Director may establish an alternative valuation method.
    (c) Production from leases not located in California, Alaska, or the 
Rocky Mountain Region. (1) Value is the NYMEX price, plus the roll, 
adjusted for applicable location and quality differentials and 
transportation costs under Sec. 1206.112.
    (2) If the ONRR Director determines that use of the roll no longer 
reflects prevailing industry practice in crude oil sales contracts or 
that the most common formula used by industry to

[[Page 755]]

calculate the roll changes, ONRR may terminate or modify use of the roll 
under paragraph (c)(1) of this section at the end of each 2-year period 
following July 6, 2004, through notice published in the Federal Register 
not later than 60 days before the end of the 2-year period. ONRR will 
explain the rationale for terminating or modifying the use of the roll 
in this notice.
    (d) Unreasonable value. If ONRR determines that the NYMEX price or 
ANS spot price does not represent a reasonable royalty value in any 
particular case, ONRR may establish reasonable royalty value based on 
other relevant matters.
    (e) Production delivered to your refinery and the NYMEX price or ANS 
spot price is an unreasonable value. (1) Instead of valuing your 
production under paragraph (a), (b), or (c) of this section, you may 
apply to the ONRR Director to establish a value representing the market 
at the refinery if:
    (i) You transport your oil directly to your or your affiliate's 
refinery, or exchange your oil for oil delivered to your or your 
affiliate's refinery; and
    (ii) You must value your oil under this section at the NYMEX price 
or ANS spot price; and
    (iii) You believe that use of the NYMEX price or ANS spot price 
results in an unreasonable royalty value.
    (2) You must provide adequate documentation and evidence 
demonstrating the market value at the refinery. That evidence may 
include, but is not limited to:
    (i) Costs of acquiring other crude oil at or for the refinery;
    (ii) How adjustments for quality, location, and transportation were 
factored into the price paid for other oil;
    (iii) Volumes acquired for and refined at the refinery; and
    (iv) Any other appropriate evidence or documentation that ONRR 
requires.
    (3) If the ONRR Director establishes a value representing market 
value at the refinery, you may not take an allowance against that value 
under Sec. 1206.112(b) unless it is included in the Director's 
approval.

[65 FR 14088, Mar. 15, 2002, as amended at 67 FR 19111, Apr. 18, 2002; 
69 FR 24976, May 5, 2004]



Sec. 1206.104  What publications are acceptable to ONRR?

    (a) ONRR periodically will publish in the Federal Register a list of 
acceptable publications for the NYMEX price and ANS spot price based on 
certain criteria, including, but not limited to:
    (1) Publications buyers and sellers frequently use;
    (2) Publications frequently mentioned in purchase or sales 
contracts;
    (3) Publications that use adequate survey techniques, including 
development of estimates based on daily surveys of buyers and sellers of 
crude oil, and, for ANS spot prices, buyers and sellers of ANS crude 
oil; and
    (4) Publications independent from ONRR, other lessors, and lessees.
    (b) Any publication may petition ONRR to be added to the list of 
acceptable publications.
    (c) ONRR will specify the tables you must use in the acceptable 
publications.
    (d) ONRR may revoke its approval of a particular publication if it 
determines that the prices or differentials published in the publication 
do not accurately represent NYMEX prices or differentials or ANS spot 
market prices or differentials.

[65 FR 14088, Mar. 15, 2000, as amended at 69 FR 24976, May 5, 2004]



Sec. 1206.105  What records must I keep to support my calculations of value 

under this subpart?

    If you determine the value of your oil under this subpart, you must 
retain all data relevant to the determination of royalty value.
    (a) You must be able to show:
    (1) How you calculated the value you reported, including all 
adjustments for location, quality, and transportation, and
    (2) How you complied with these rules.
    (b) Recordkeeping requirements are found at part 1207 of this 
chapter.
    (c) ONRR may review and audit your data, and ONRR will direct you to 
use a different value if it determines that the reported value is 
inconsistent with the requirements of this subpart.

[[Page 756]]



Sec. 1206.106  What are my responsibilities to place production into 

marketable condition and to market production?

    You must place oil in marketable condition and market the oil for 
the mutual benefit of the lessee and the lessor at no cost to the 
Federal Government. If you use gross proceeds under an arm's-length 
contract in determining value, you must increase those gross proceeds to 
the extent that the purchaser, or any other person, provides certain 
services that the seller normally would be responsible to perform to 
place the oil in marketable condition or to market the oil.



Sec. 1206.107  How do I request a value determination?

    (a) You may request a value determination from ONRR regarding any 
Federal lease oil production. Your request must:
    (1) Be in writing;
    (2) Identify specifically all leases involved, the record title or 
operating rights owners of those leases, and the designees for those 
leases;
    (3) Completely explain all relevant facts. You must inform ONRR of 
any changes to relevant facts that occur before we respond to your 
request;
    (4) Include copies of all relevant documents;
    (5) Provide your analysis of the issue(s), including citations to 
all relevant precedents (including adverse precedents); and
    (6) Suggest your proposed valuation method.
    (b) ONRR will reply to requests expeditiously. ONRR may either:
    (1) Issue a value determination signed by the Assistant 
Secretary,Policy, Management and Budget; or
    (2) Issue a value determination by ONRR; or
    (3) Inform you in writing that ONRR will not provide a value 
determination. Situations in which ONRR typically will not provide any 
value determination include, but are not limited to:
    (i) Requests for guidance on hypothetical situations; and
    (ii) Matters that are the subject of pending litigation or 
administrative appeals.
    (c)(1) A value determination signed by the Assistant Secretary, 
Policy, Management and Budget, is binding on both you and ONRR until the 
Assistant Secretary modifies or rescinds it.
    (2) After the Assistant Secretary issues a value determination, you 
must make any adjustments in royalty payments that follow from the 
determination and, if you owe additional royalties, pay late payment 
interest under Sec. 1218.54 of this chapter.
    (3) A value determination signed by the Assistant Secretary is the 
final action of the Department and is subject to judicial review under 5 
U.S.C. 701-706.
    (d) A value determination issued by ONRR is binding on ONRR and 
delegated States with respect to the specific situation addressed in the 
determination unless the ONRR (for ONRR-issued value determinations) or 
the Assistant Secretary modifies or rescinds it.
    (1) A value determination by ONRR is not an appealable decision or 
order under 30 CFR part 1290.
    (2) If you receive an order requiring you to pay royalty on the same 
basis as the value determination, you may appeal that order under 30 CFR 
part 1290.
    (e) In making a value determination, ONRR or the Assistant Secretary 
may use any of the applicable valuation criteria in this subpart.
    (f) A change in an applicable statute or regulation on which any 
value determination is based takes precedence over the value 
determination, regardless of whether the ONRR or the Assistant Secretary 
modifies or rescinds the value determination.
    (g) The ONRR or the Assistant Secretary generally will not 
retroactively modify or rescind a value determination issued under 
paragraph (d) of this section, unless:
    (1) There was a misstatement or omission of material facts; or
    (2) The facts subsequently developed are materially different from 
the facts on which the guidance was based.
    (h) ONRR may make requests and replies under this section available 
to the public, subject to the confidentiality requirements under Sec. 
1206.108.

[[Page 757]]



Sec. 1206.108  Does ONRR protect information I provide?

    Certain information you submit to ONRR regarding valuation of oil, 
including transportation allowances, may be exempt from disclosure. To 
the extent applicable laws and regulations permit, ONRR will keep 
confidential any data you submit that is privileged, confidential, or 
otherwise exempt from disclosure. All requests for information must be 
submitted under the Freedom of Information Act regulations of the 
Department of the Interior at 43 CFR part 2.



Sec. 1206.109  When may I take a transportation allowance in determining 

value?

    (a) Transportation allowances permitted when value is based on gross 
proceeds. ONRR will allow a deduction for the reasonable, actual costs 
to transport oil from the lease to the point off the lease under Sec. 
1206.110 or Sec. 1206.111, as applicable. This paragraph applies when:
    (1) You value oil under Sec. 1206.102 based on gross proceeds from 
a sale at a point off the lease, unit, or communitized area where the 
oil is produced, and
    (2) The movement to the sales point is not gathering.
    (b) Transportation allowances and other adjustments that apply when 
value is based on NYMEX prices or ANS spot prices. If you value oil 
using NYMEX prices or ANS spot prices under Sec. 1206.103, ONRR will 
allow an adjustment for certain location and quality differentials and 
certain costs associated with transporting oil as provided under Sec. 
1206.112.
    (c) Limits on transportation allowances. (1) Except as provided in 
paragraph (c)(2) of this section, your transportation allowance may not 
exceed 50 percent of the value of the oil as determined under Sec. 
1206.102 or Sec. 1206.103 of this subpart. You may not use 
transportation costs incurred to move a particular volume of production 
to reduce royalties owed on production for which those costs were not 
incurred.
    (2) You may ask ONRR to approve a transportation allowance in excess 
of the limitation in paragraph (c)(1) of this section. You must 
demonstrate that the transportation costs incurred were reasonable, 
actual, and necessary. Your application for exception (using Form MMS-
4393, Request to Exceed Regulatory Allowance Limitation) must contain 
all relevant and supporting documentation necessary for ONRR to make a 
determination. You may never reduce the royalty value of any production 
to zero.
    (d) Allocation of transportation costs. You must allocate 
transportation costs among all products produced and transported as 
provided in Sec. Sec. 1206.110 and 1206.111. You must express 
transportation allowances for oil as dollars per barrel.
    (e) Liability for additional payments. If ONRR determines that you 
took an excessive transportation allowance, then you must pay any 
additional royalties due, plus interest under Sec. 1218.54 of this 
chapter. You also could be entitled to a credit with interest under 
applicable rules if you understated your transportation allowance. If 
you take a deduction for transportation on Form MMS-2014 by improperly 
netting the allowance against the sales value of the oil instead of 
reporting the allowance as a separate entry, ONRR may assess you an 
amount under Sec. 1206.116.

[65 FR 14088, Mar. 15, 2000, as amended at 69 FR 24976, May 5, 2004]



Sec. 1206.110  How do I determine a transportation allowance under an arm's-

length transportation contract?

    (a) If you or your affiliate incur transportation costs under an 
arm's-length transportation contract, you may claim a transportation 
allowance for the reasonable, actual costs incurred as more fully 
explained in paragraph (b) of this section, except as provided in 
paragraphs (a)(1) and (a)(2) of this section and subject to the 
limitation in Sec. 1206.109(c). You must be able to demonstrate that 
your or your affiliate's contract is at arm's length. You do not need 
ONRR approval before reporting a transportation allowance for costs 
incurred under an arm's-length transportation contract.
    (1) If ONRR determines that the contract reflects more than the 
consideration actually transferred either directly or indirectly from 
you or your affiliate to the transporter for the

[[Page 758]]

transportation, ONRR may require that you calculate the transportation 
allowance under Sec. 1206.111.
    (2) You must calculate the transportation allowance under Sec. 
1206.111 if ONRR determines that the consideration paid under an arm's-
length transportation contract does not reflect the reasonable value of 
the transportation due to either:
    (i) Misconduct by or between the parties to the arm's-length 
contract; or
    (ii) Breach of your duty to market the oil for the mutual benefit of 
yourself and the lessor.
    (A) ONRR will not use this provision to simply substitute its 
judgment of the reasonable oil transportation costs incurred by you or 
your affiliate under an arm's-length transportation contract.
    (B) The fact that the cost you or your affiliate incur in an arm's 
length transaction is higher than other measures of transportation 
costs, such as rates paid by others in the field or area, is 
insufficient to establish breach of the duty to market unless ONRR finds 
additional evidence that you or your affiliate acted unreasonably or in 
bad faith in transporting oil from the lease.
    (b) You may deduct any of the following actual costs you (including 
your affiliates) incur for transporting oil. You may not use as a 
deduction any cost that duplicates all or part of any other cost that 
you use under this paragraph.
    (1) The amount that you pay under your arm's-length transportation 
contract or tariff.
    (2) Fees paid (either in volume or in value) for actual or 
theoretical line losses.
    (3) Fees paid for administration of a quality bank.
    (4) The cost of carrying on your books as inventory a volume of oil 
that the pipeline operator requires you to maintain, and that you do 
maintain, in the line as line fill. You must calculate this cost as 
follows:
    (i) Multiply the volume that the pipeline requires you to maintain, 
and that you do maintain, in the pipeline by the value of that volume 
for the current month calculated under Sec. 1206.102 or Sec. 1206.103, 
as applicable; and
    (ii) Multiply the value calculated under paragraph (b)(4)(i) of this 
section by the monthly rate of return, calculated by dividing the rate 
of return specified in Sec. 1206.111(i)(2) by 12.
    (5) Fees paid to a terminal operator for loading and unloading of 
crude oil into or from a vessel, vehicle, pipeline, or other conveyance.
    (6) Fees paid for short-term storage (30 days or less) incidental to 
transportation as required by a transporter.
    (7) Fees paid to pump oil to another carrier's system or vehicles as 
required under a tariff.
    (8) Transfer fees paid to a hub operator associated with physical 
movement of crude oil through the hub when you do not sell the oil at 
the hub. These fees do not include title transfer fees.
    (9) Payments for a volumetric deduction to cover shrinkage when 
high-gravity petroleum (generally in excess of 51 degrees API) is mixed 
with lower-gravity crude oil for transportation.
    (10) Costs of securing a letter of credit, or other surety, that the 
pipeline requires you as a shipper to maintain.
    (c) You may not deduct any costs that are not actual costs of 
transporting oil, including but not limited to the following:
    (1) Fees paid for long-term storage (more than 30 days).
    (2) Administrative, handling, and accounting fees associated with 
terminalling.
    (3) Title and terminal transfer fees.
    (4) Fees paid to track and match receipts and deliveries at a market 
center or to avoid paying title transfer fees.
    (5) Fees paid to brokers.
    (6) Fees paid to a scheduling service provider.
    (7) Internal costs, including salaries and related costs, rent/space 
costs, office equipment costs, legal fees, and other costs to schedule, 
nominate, and account for sale or movement of production.
    (8) Gauging fees.
    (d) If your arm's-length transportation contract includes more than 
one liquid product, and the transportation costs attributable to each 
product cannot be determined from the contract,

[[Page 759]]

then you must allocate the total transportation costs to each of the 
liquid products transported.
    (1) Your allocation must use the same proportion as the ratio of the 
volume of each product (excluding waste products with no value) to the 
volume of all liquid products (excluding waste products with no value).
    (2) You may not claim an allowance for the costs of transporting 
lease production that is not royalty-bearing.
    (3) You may propose to ONRR a cost allocation method on the basis of 
the values of the products transported. ONRR will approve the method 
unless it is not consistent with the purposes of the regulations in this 
subpart.
    (e) If your arm's-length transportation contract includes both 
gaseous and liquid products, and the transportation costs attributable 
to each product cannot be determined from the contract, then you must 
propose an allocation procedure to ONRR.
    (1) You may use your proposed procedure to calculate a 
transportation allowance until ONRR accepts or rejects your cost 
allocation. If ONRR rejects your cost allocation, you must amend your 
Form MMS-2014 for the months that you used the rejected method and pay 
any additional royalty and interest due.
    (2) You must submit your initial proposal, including all available 
data, within 3 months after first claiming the allocated deductions on 
Form MMS-2014.
    (f) If your payments for transportation under an arm's-length 
contract are not on a dollar-per-unit basis, you must convert whatever 
consideration is paid to a dollar-value equivalent.
    (g) If your arm's-length sales contract includes a provision 
reducing the contract price by a transportation factor, do not 
separately report the transportation factor as a transportation 
allowance on Form MMS-2014.
    (1) You may use the transportation factor in determining your gross 
proceeds for the sale of the product.
    (2) You must obtain ONRR approval before claiming a transportation 
factor in excess of 50 percent of the base price of the product.

[65 FR 14088, Mar. 15, 2000, as amended at 69 FR 24976, May 5, 2004]



Sec. 1206.111  How do I determine a transportation allowance if I do not have 

an arm's-length transportation contract or arm's-length tariff?

    (a) This section applies if you or your affiliate do not have an 
arm's-length transportation contract, including situations where you or 
your affiliate provide your own transportation services. Calculate your 
transportation allowance based on your or your affiliate's reasonable, 
actual costs for transportation during the reporting period using the 
procedures prescribed in this section.
    (b) Your or your affiliate's actual costs include the following:
    (1) Operating and maintenance expenses under paragraphs (d) and (e) 
of this section;
    (2) Overhead under paragraph (f) of this section;
    (3) Depreciation under paragraphs (g) and (h) of this section;
    (4) A return on undepreciated capital investment under paragraph (i) 
of this section; and
    (5) Once the transportation system has been depreciated below ten 
percent of total capital investment, a return on ten percent of total 
capital investment under paragraph (j) of this section.
    (6) To the extent not included in costs identified in paragraphs (d) 
through (j) of this section, you may also deduct the following actual 
costs. You may not use any cost as a deduction that duplicates all or 
part of any other cost that you use under this section:
    (i) Volumetric adjustments for actual (not theoretical) line losses.
    (ii) The cost of carrying on your books as inventory a volume of oil 
that the pipeline operator requires you as a shipper to maintain, and 
that you do maintain, in the line as line fill. You must calculate this 
cost as follows:
    (A) Multiply the volume that the pipeline requires you to maintain, 
and that you do maintain, in the pipeline by the value of that volume 
for the current month calculated under Sec. 1206.102 or Sec. 1206.103, 
as applicable; and
    (B) Multiply the value calculated under paragraph (b)(6)(ii)(A) of 
this section by the monthly rate of return, calculated by dividing the 
rate of return specified in Sec. 1206.111(i)(2) by 12.

[[Page 760]]

    (iii) Fees paid to a non-affiliated terminal operator for loading 
and unloading of crude oil into or from a vessel, vehicle, pipeline, or 
other conveyance.
    (iv) Transfer fees paid to a hub operator associated with physical 
movement of crude oil through the hub when you do not sell the oil at 
the hub. These fees do not include title transfer fees.
    (v) A volumetric deduction to cover shrinkage when high-gravity 
petroleum (generally in excess of 51 degrees API) is mixed with lower-
gravity crude oil for transportation.
    (vi) Fees paid to a non-affiliated quality bank administrator for 
administration of a quality bank.
    (7) You may not deduct any costs that are not actual costs of 
transporting oil, including but not limited to the following:
    (i) Fees paid for long-term storage (more than 30 days).
    (ii) Administrative, handling, and accounting fees associated with 
terminalling.
    (iii) Title and terminal transfer fees.
    (iv) Fees paid to track and match receipts and deliveries at a 
market center or to avoid paying title transfer fees.
    (v) Fees paid to brokers.
    (vi) Fees paid to a scheduling service provider.
    (vii) Internal costs, including salaries and related costs, rent/
space costs, office equipment costs, legal fees, and other costs to 
schedule, nominate, and account for sale or movement of production.
    (viii) Theoretical line losses.
    (ix) Gauging fees.
    (c) Allowable capital costs are generally those for depreciable 
fixed assets (including costs of delivery and installation of capital 
equipment) which are an integral part of the transportation system.
    (d) Allowable operating expenses include:
    (i) Operations supervision and engineering;
    (ii) Operations labor;
    (iii) Fuel;
    (iv) Utilities;
    (v) Materials;
    (vi) Ad valorem property taxes;
    (vii) Rent;
    (viii) Supplies; and
    (ix) Any other directly allocable and attributable operating expense 
which you can document.
    (e) Allowable maintenance expenses include:
    (i) Maintenance of the transportation system;
    (ii) Maintenance of equipment;
    (iii) Maintenance labor; and
    (iv) Other directly allocable and attributable maintenance expenses 
which you can document.
    (f) Overhead directly attributable and allocable to the operation 
and maintenance of the transportation system is an allowable expense. 
State and Federal income taxes and severance taxes and other fees, 
including royalties, are not allowable expenses.
    (g) To compute depreciation, you may elect to use either a straight-
line depreciation method based on the life of equipment or on the life 
of the reserves which the transportation system services, or a unit-of-
production method. After you make an election, you may not change 
methods without ONRR approval. You may not depreciate equipment below a 
reasonable salvage value.
    (h) This paragraph describes the basis for your depreciation 
schedule.
    (1) If you or your affiliate own a transportation system on June 1, 
2000, you must base your depreciation schedule used in calculating 
actual transportation costs for production after June 1, 2000, on your 
total capital investment in the system (including your original purchase 
price or construction cost and subsequent reinvestment).
    (2) If you or your affiliate purchased the transportation system at 
arm's length before June 1, 2000, you must incorporate depreciation on 
the schedule based on your purchase price (and subsequent reinvestment) 
into your transportation allowance calculations for production after 
June 1, 2000, beginning at the point on the depreciation schedule 
corresponding to that date. You must prorate your depreciation for 
calendar year 2000 by claiming part-year depreciation for the period 
from June 1, 2000 until December 31, 2000. You may not adjust your 
transportation costs for production before June 1, 2000,

[[Page 761]]

using the depreciation schedule based on your purchase price.
    (3) If you are the original owner of the transportation system on 
June 1, 2000, or if you purchased your transportation system before 
March 1, 1988, you must continue to use your existing depreciation 
schedule in calculating actual transportation costs for production in 
periods after June 1, 2000.
    (4) If you or your affiliate purchase a transportation system at 
arm's length from the original owner after June 1, 2000, you must base 
your depreciation schedule used in calculating actual transportation 
costs on your total capital investment in the system (including your 
original purchase price and subsequent reinvestment). You must prorate 
your depreciation for the year in which you or your affiliate purchased 
the system to reflect the portion of that year for which you or your 
affiliate own the system.
    (5) If you or your affiliate purchase a transportation system at 
arm's length after June 1, 2000, from anyone other than the original 
owner, you must assume the depreciation schedule of the person from whom 
you bought the system. Include in the depreciation schedule any 
subsequent reinvestment.
    (i)(1) To calculate a return on undepreciated capital investment, 
multiply the remaining undepreciated capital balance as of the beginning 
of the period for which you are calculating the transportation allowance 
by the rate of return provided in paragraph (i)(2) of this section.
    (2) The rate of return is 1.3 times the industrial bond yield index 
for Standard & Poor's BBB bond rating. Use the monthly average rate 
published in ``Standard & Poor's Bond Guide'' for the first month of the 
reporting period for which the allowance applies. Calculate the rate at 
the beginning of each subsequent transportation allowance reporting 
period.
    (j)(1) After a transportation system has been depreciated at or 
below a value equal to ten percent of your total capital investment, you 
may continue to include in the allowance calculation a cost equal to ten 
percent of your total capital investment in the transportation system 
multiplied by a rate of return under paragraph (i)(2) of this section.
    (2) You may apply this paragraph to a transportation system that 
before June 1, 2000, was depreciated at or below a value equal to ten 
percent of your total capital investment.
    (k) Calculate the deduction for transportation costs based on your 
or your affiliate's cost of transporting each product through each 
individual transportation system. Where more than one liquid product is 
transported, allocate costs consistently and equitably to each of the 
liquid products transported. Your allocation must use the same 
proportion as the ratio of the volume of each liquid product (excluding 
waste products with no value) to the volume of all liquid products 
(excluding waste products with no value).
    (1) You may not take an allowance for transporting lease production 
that is not royalty-bearing.
    (2) You may propose to ONRR a cost allocation method on the basis of 
the values of the products transported. ONRR will approve the method if 
it is consistent with the purposes of the regulations in this subpart.
    (l)(1) Where you transport both gaseous and liquid products through 
the same transportation system, you must propose a cost allocation 
procedure to ONRR.
    (2) You may use your proposed procedure to calculate a 
transportation allowance until ONRR accepts or rejects your cost 
allocation. If ONRR rejects your cost allocation, you must amend your 
Form MMS-2014 for the months that you used the rejected method and pay 
any additional royalty and interest due.
    (3) You must submit your initial proposal, including all available 
data, within 3 months after first claiming the allocated deductions on 
Form MMS-2014.

[65 FR 14088, Mar. 15, 2000, as amended at 69 FR 24977, May 5, 2004]



Sec. 1206.112  What adjustments and transportation allowances apply when I 

value oil production from my lease using NYMEX prices or ANS spot prices?

    This section applies when you use NYMEX prices or ANS spot prices to

[[Page 762]]

calculate the value of production under Sec. 1206.103. As specified in 
this section, adjust the NYMEX price to reflect the difference in value 
between your lease and Cushing, Oklahoma, or adjust the ANS spot price 
to reflect the difference in value between your lease and the 
appropriate ONRR-recognized market center at which the ANS spot price is 
published (for example, Long Beach, California, or San Francisco, 
California). Paragraph (a) of this section explains how you adjust the 
value between the lease and the market center, and paragraph (b) of this 
section explains how you adjust the value between the market center and 
Cushing when you use NYMEX prices. Paragraph (c) of this section 
explains how adjustments may be made for quality differentials that are 
not accounted for through exchange agreements. Paragraph (d) of this 
section gives some examples. References in this section to ``you'' 
include your affiliates as applicable.
    (a) To adjust the value between the lease and the market center:
    (1)(i) For oil that you exchange at arm's length between your lease 
and the market center (or between any intermediate points between those 
locations), you must calculate a lease-to-market center differential by 
the applicable location and quality differentials derived from your 
arm's-length exchange agreement applicable to production during the 
production month.
    (ii) For oil that you exchange between your lease and the market 
center (or between any intermediate points between those locations) 
under an exchange agreement that is not at arm's length, you must obtain 
approval from ONRR for a location and quality differential. Until you 
obtain such approval, you may use the location and quality differential 
derived from that exchange agreement applicable to production during the 
production month. If ONRR prescribes a different differential, you must 
apply ONRR's differential to all periods for which you used your 
proposed differential. You must pay any additional royalties owed 
resulting from using ONRR's differential plus late payment interest from 
the original royalty due date, or you may report a credit for any 
overpaid royalties plus interest under 30 U.S.C. 1721(h).
    (2) For oil that you transport between your lease and the market 
center (or between any intermediate points between those locations), you 
may take an allowance for the cost of transporting that oil between the 
relevant points as determined under Sec. 1206.110 or Sec. 1206.111, as 
applicable.
    (3) If you transport or exchange at arm's length (or both transport 
and exchange) at least 20 percent, but not all, of your oil produced 
from the lease to a market center, determine the adjustment between the 
lease and the market center for the oil that is not transported or 
exchanged (or both transported and exchanged) to or through a market 
center as follows:
    (i) Determine the volume-weighted average of the lease-to-market 
center adjustment calculated under paragraphs (a)(1) and (a)(2) of this 
section for the oil that you do transport or exchange (or both transport 
and exchange) from your lease to a market center.
    (ii) Use that volume-weighted average lease-to-market center 
adjustment as the adjustment for the oil that you do not transport or 
exchange (or both transport and exchange) from your lease to a market 
center.
    (4) If you transport or exchange (or both transport and exchange) 
less than 20 percent of the crude oil produced from your lease between 
the lease and a market center, you must propose to ONRR an adjustment 
between the lease and the market center for the portion of the oil that 
you do not transport or exchange (or both transport and exchange) to a 
market center. Until you obtain such approval, you may use your proposed 
adjustment. If ONRR prescribes a different adjustment, you must apply 
ONRR's adjustment to all periods for which you used your proposed 
adjustment. You must pay any additional royalties owed resulting from 
using ONRR's adjustment plus late payment interest from the original 
royalty due date, or you may report a credit for any overpaid royalties 
plus interest under 30 U.S.C. 1721(h).
    (5) You may not both take a transportation allowance and use a 
location and quality adjustment or exchange

[[Page 763]]

differential for the same oil between the same points.
    (b) For oil that you value using NYMEX prices, adjust the value 
between the market center and Cushing, Oklahoma, as follows:
    (1) If you have arm's-length exchange agreements between the market 
center and Cushing under which you exchange to Cushing at least 20 
percent of all the oil you own at the market center during the 
production month, you must use the volume-weighted average of the 
location and quality differentials from those agreements as the 
adjustment between the market center and Cushing for all the oil that 
you produce from the leases during that production month for which that 
market center is used.
    (2) If paragraph (b)(1) of this section does not apply, you must use 
the WTI differential published in an ONRR-approved publication for the 
market center nearest your lease, for crude oil most similar in quality 
to your production, as the adjustment between the market center and 
Cushing. (For example, for light sweet crude oil produced offshore of 
Louisiana, use the WTI differential for Light Louisiana Sweet crude oil 
at St. James, Louisiana.) After you select an ONRR-approved publication, 
you may not select a different publication more often than once every 2 
years, unless the publication you use is no longer published or ONRR 
revokes its approval of the publication. If you are required to change 
publications, you must begin a new 2-year period.
    (3) If neither paragraph (b)(1) nor (b)(2) of this section applies, 
you may propose an alternative differential to ONRR. Until you obtain 
such approval, you may use your proposed differential. If ONRR 
prescribes a different differential, you must apply ONRR's differential 
to all periods for which you used your proposed differential. You must 
pay any additional royalties owed resulting from using ONRR's 
differential plus late payment interest from the original royalty due 
date, or you may report a credit for any overpaid royalties plus 
interest under 30 U.S.C. 1721(h).
    (c)(1) If you adjust for location and quality differentials or for 
transportation costs under paragraphs (a) and (b) of this section, also 
adjust the NYMEX price or ANS spot price for quality based on premiums 
or penalties determined by pipeline quality bank specifications at 
intermediate commingling points or at the market center if those points 
are downstream of the royalty measurement point approved by BOEMRE or 
BLM, as applicable. Make this adjustment only if and to the extent that 
such adjustments were not already included in the location and quality 
differentials determined from your arm's-length exchange agreements.
    (2) If the quality of your oil as adjusted is still different from 
the quality of the representative crude oil at the market center after 
making the quality adjustments described in paragraphs (a), (b) and 
(c)(1) of this section, you may make further gravity adjustments using 
posted price gravity tables. If quality bank adjustments do not 
incorporate or provide for adjustments for sulfur content, you may make 
sulfur adjustments, based on the quality of the representative crude oil 
at the market center, of 5.0 cents per one-tenth percent difference in 
sulfur content, unless ONRR approves a higher adjustment.
    (d) The examples in this paragraph illustrate how to apply the 
requirement of this section.
    (1) Example. Assume that a Federal lessee produces crude oil from a 
lease near Artesia, New Mexico. Further, assume that the lessee 
transports the oil to Roswell, New Mexico, and then exchanges the oil to 
Midland, Texas. Assume the lessee refines the oil received in exchange 
at Midland. Assume that the NYMEX price is $30.00/bbl, adjusted for the 
roll; that the WTI differential (Cushing to Midland) is -$.10/bbl; that 
the lessee's exchange agreement between Roswell and Midland results in a 
location and quality differential of -$.08/bbl; and that the lessee's 
actual cost of transporting the oil from Artesia to Roswell is $.40/bbl. 
In this example, the royalty value of the oil is $30.00-$.10-$.08--$.40 
= $29.42/bbl.
    (2) Example. Assume the same facts as in the example in paragraph 
(1), except that the lessee transports and exchanges to Midland 40 
percent of the

[[Page 764]]

production from the lease near Artesia, and transports the remaining 60 
percent directly to its own refinery in Ohio. In this example, the 40 
percent of the production would be valued at $29.42/bbl, as explained in 
the previous example. In this example, the other 60 percent also would 
be valued at $29.42/bbl.
    (3) Example. Assume that a Federal lessee produces crude oil from a 
lease near Bakersfield, California. Further, assume that the lessee 
transports the oil to Hynes Station, and then exchanges the oil to 
Cushing which it further exchanges with oil it refines. Assume that the 
ANS spot price is $20.00/bbl, and that the lessee's actual cost of 
transporting the oil from Bakersfield to Hynes Station is $.28/bbl. The 
lessee must request approval from ONRR for a location and quality 
adjustment between Hynes Station and Long Beach. For example, the lessee 
likely would propose using the tariff on Line 63 from Hynes Station to 
Long Beach as the adjustment between those points. Assume that 
adjustment to be $.72, including the sulfur and gravity bank 
adjustments, and that ONRR approves the lessee's request. In this 
example, the preliminary (because the location and quality adjustment is 
subject to ONRR review) royalty value of the oil is $20.00-$.72-$.28 = 
$19.00/bbl. The fact that oil was exchanged to Cushing does not change 
use of ANS spot prices for royalty valuation.

[69 FR 24978, May 5, 2004]



Sec. 1206.113  How will ONRR identify market centers?

     ONRR periodically will publish in the Federal Register a list of 
market centers. ONRR will monitor market activity and, if necessary, add 
to or modify the list of market centers and will publish such 
modifications in the Federal Register. ONRR will consider the following 
factors and conditions in specifying market centers:
    (a) Points where ONRR-approved publications publish prices useful 
for index purposes;
    (b) Markets served;
    (c) Input from industry and others knowledgeable in crude oil 
marketing and transportation;
    (d) Simplification; and
    (e) Other relevant matters.



Sec. 1206.114  What are my reporting requirements under an arm's-length 

transportation contract?

    You or your affiliate must use a separate entry on Form MMS-2014 to 
notify ONRR of an allowance based on transportation costs you or your 
affiliate incur. ONRR may require you or your affiliate to submit arm's-
length transportation contracts, production agreements, operating 
agreements, and related documents. Recordkeeping requirements are found 
at part 1207 of this chapter.



Sec. 1206.115  What are my reporting requirements under a non-arm's-length 

transportation arrangement?

    (a) You or your affiliate must use a separate entry on Form MMS-2014 
to notify ONRR of an allowance based on transportation costs you or your 
affiliate incur.
    (b) For new transportation facilities or arrangements, base your 
initial deduction on estimates of allowable oil transportation costs for 
the applicable period. Use the most recently available operations data 
for the transportation system or, if such data are not available, use 
estimates based on data for similar transportation systems. Section 
1206.117 will apply when you amend your report based on your actual 
costs.
    (c) ONRR may require you or your affiliate to submit all data used 
to calculate the allowance deduction. Recordkeeping requirements are 
found at part 1207 of this chapter.



Sec. 1206.116  What interest applies if I improperly report a transportation 

allowance?

    (a) If you or your affiliate deducts a transportation allowance on 
Form MMS-2014 that exceeds 50 percent of the value of the oil 
transported without obtaining ONRR's prior approval under Sec. 
1206.109, you must pay interest on the excess allowance amount taken 
from the date that amount is taken to the date you or your affiliate 
files an exception request that ONRR approves. If you do not file an 
exception request, or if ONRR does not approve your request, you must 
pay interest on the excess allowance amount taken from the

[[Page 765]]

date that amount is taken until the date you pay the additional 
royalties owed.
    (b) If you or your affiliate takes a deduction for transportation on 
Form MMS-2014 by improperly netting an allowance against the oil instead 
of reporting the allowance as a separate entry, ONRR may assess a civil 
penalty under 30 CFR part 1241.

[73 FR 15890, Mar. 26, 2008]



Sec. 1206.117  What reporting adjustments must I make for transportation 

allowances?

    (a) If your or your affiliate's actual transportation allowance is 
less than the amount you claimed on Form MMS-2014 for each month during 
the allowance reporting period, you must pay additional royalties plus 
interest computed under Sec. 218.54 of this chapter from the date you 
took the deduction to the date you repay the difference.
    (b) If the actual transportation allowance is greater than the 
amount you claimed on Form MMS-2014 for any month during the allowance 
form reporting period, you are entitled to a credit plus interest under 
applicable rules.



Sec. 1206.119  How are royalty quantity and quality determined?

    (a) Compute royalties based on the quantity and quality of oil as 
measured at the point of settlement approved by BLM for onshore leases 
or BOEMRE for offshore leases.
    (b) If the value of oil determined under this subpart is based upon 
a quantity or quality different from the quantity or quality at the 
point of royalty settlement approved by the BLM for onshore leases or 
BOEMRE for offshore leases, adjust the value for those differences in 
quantity or quality.
    (c) Any actual loss that you may incur before the royalty settlement 
metering or measurement point is not subject to royalty if BLM orBOEMRE, 
as appropriate, determines that the loss is unavoidable.
    (d) Except as provided in paragraph (b) of this section, royalties 
are due on 100 percent of the volume measured at the approved point of 
royalty settlement. You may not claim a reduction in that measured 
volume for actual losses beyond the approved point of royalty settlement 
or for theoretical losses that are claimed to have taken place either 
before or after the approved point of royalty settlement.

[65 FR 14088, Mar. 15, 2000, as amended at 69 FR 24979, May 5, 2004]



Sec. 1206.120  How are operating allowances determined?

    BOEMRE may use an operating allowance for the purpose of computing 
payment obligations when specified in the notice of sale and the lease. 
BOEMRE will specify the allowance amount or formula in the notice of 
sale and in the lease agreement.



                          Subpart D_Federal Gas

    Source: 53 FR 1272, Jan. 15, 1988, unless otherwise noted.



Sec. 1206.150  Purpose and scope.

    (a) This subpart is applicable to all gas production from Federal 
oil and gas leases. The purpose of this subpart is to establish the 
value of production for royalty purposes consistent with the mineral 
leasing laws, other applicable laws and lease terms.
    (b) If the regulations in this subpart are inconsistent with:
    (1) A Federal statute;
    (2) A settlement agreement between the United States and a lessee 
resulting from administrative or judicial litigation;
    (3) A written agreement between the lessee and the ONRR Director 
establishing a method to determine the value of production from any 
lease that ONRR expects at least would approximate the value established 
under this subpart; or
    (4) An express provision of an oil and gas lease subject to this 
subpart; then the statute, settlement agreement, written agreement, or 
lease provision will govern to the extent of the inconsistency.
    (c) All royalty payments made to ONRR are subject to audit and 
adjustment.

[[Page 766]]

    (d) The regulations in this subpart are intended to ensure that the 
administration of oil and gas leases is discharged in accordance with 
the requirements of the governing mineral leasing laws and lease terms.

[61 FR 5464, Feb. 12, 1996, as amended at 70 FR 11877, Mar. 10, 2005]



Sec. 1206.151  Definitions.

    For purposes of this subpart:
    Affiliate means a person who controls, is controlled by, or is under 
common control with another person. For purposes of this subpart:
    (1) Ownership or common ownership of more than 50 percent of the 
voting securities, or instruments of ownership, or other forms of 
ownership, of another person constitutes control. Ownership of less than 
10 percent constitutes a presumption of noncontrol that ONRR may rebut.
    (2) If there is ownership or common ownership of 10 through 50 
percent of the voting securities or instruments of ownership, or other 
forms of ownership, of another person, ONRR will consider the following 
factors in determining whether there is control under the circumstances 
of a particular case:
    (i) The extent to which there are common officers or directors;
    (ii) With respect to the voting securities, or instruments of 
ownership, or other forms of ownership: The percentage of ownership or 
common ownership, the relative percentage of ownership or common 
ownership compared to the percentage(s) of ownership by other persons, 
whether a person is the greatest single owner, or whether there is an 
opposing voting bloc of greater ownership;
    (iii) Operation of a lease, plant, pipeline, or other facility;
    (iv) The extent of participation by other owners in operations and 
day-to-day management of a lease, plant, pipeline, or other facility; 
and
    (v) Other evidence of power to exercise control over or common 
control with another person.
    (3) Regardless of any percentage of ownership or common ownership, 
relatives, either by blood or marriage, are affiliates.
    Allowance means a deduction in determining value for royalty 
purposes. Processing allowance means an allowance for the reasonable, 
actual costs of processing gas determined under this subpart. 
Transportation allowance means an allowance for the reasonable, actual 
costs of moving unprocessed gas, residue gas, or gas plant products to a 
point of sale or delivery off the lease, unit area, or communitized 
area, or away from a processing plant. The transportation allowance does 
not include gathering costs.
    Area means a geographic region at least as large as the defined 
limits of an oil and/or gas field, in which oil and/or gas lease 
products have similar quality, economic, and legal characteristics.
    Arm's-length contract means a contract or agreement between 
independent persons who are not affiliates and who have opposing 
economic interests regarding that contract. To be considered arm's 
length for any production month, a contract must satisfy this definition 
for that month, as well as when the contract was executed.
    Audit means a review, conducted in accordance with generally 
accepted accounting and auditing standards, of royalty payment 
compliance activities of lessees or other interest holders who pay 
royalties, rents, or bonuses on Federal leases.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Compression means the process of raising the pressure of gas.
    Condensate means liquid hydrocarbons (normally exceeding 40 degrees 
of API gravity) recovered at the surface without resorting to 
processing. Condensate is the mixture of liquid hydrocarbons that 
results from condensation of petroleum hydrocarbons existing initially 
in a gaseous phase in an underground reservoir.
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Field means a geographic region situated over one or more subsurface 
oil and gas reservoirs encompassing at least the outermost boundaries of 
all oil and gas accumulations known to be

[[Page 767]]

within those reservoirs vertically projected to the land surface. 
Onshore fields are usually given names and their official boundaries are 
often designated by oil and gas regulatory agencies in the respective 
States in which the fields are located. Outer Continental Shelf (OCS) 
fields are named and their boundaries are designated byBOEMRE.
    Gas means any fluid, either combustible or noncombustible, 
hydrocarbon or nonhydrocarbon, which is extracted from a reservoir and 
which has neither independent shape nor volume, but tends to expand 
indefinitely. It is a substance that exists in a gaseous or rarefied 
state under standard temperature and pressure conditions.
    Gas plant products means separate marketable elements, compounds, or 
mixtures, whether in liquid, gaseous, or solid form, resulting from 
processing gas, excluding residue gas.
    Gathering means the movement of lease production to a central 
accumulation and/or treatment point on the lease, unit or communitized 
area, or to a central accumulation or treatment point off the lease, 
unit or communitized area as approved by BLM or BOEMRE OCS operations 
personnel for onshore and OCS leases, respectively.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to an oil and gas lessee for the 
disposition of the gas, residue gas, and gas plant products produced. 
Gross proceeds includes, but is not limited to, payments to the lessee 
for certain services such as dehydration, measurement, and/or gathering 
to the extent that the lessee is obligated to perform them at no cost to 
the Federal Government. Tax reimbursements are part of the gross 
proceeds accruing to a lessee even though the Federal royalty interest 
may be exempt from taxation. Monies and other consideration, including 
the forms of consideration identified in this paragraph, to which a 
lessee is contractually or legally entitled but which it does not seek 
to collect through reasonable efforts are also part of gross proceeds.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States under a 
mineral leasing law that authorizes exploration for, development or 
extraction of, or removal of lease products--or the land area covered by 
that authorization, whichever is required by the context.
    Lease products means any leased minerals attributable to, 
originating from, or allocated to Outer Continental Shelf or onshore 
Federal leases.
    Lessee means any person to whom the United States issues a lease, 
and any person who has been assigned an obligation to make royalty or 
other payments required by the lease. This includes any person who has 
an interest in a lease as well as an operator or payor who has no 
interest in the lease but who has assumed the royalty payment 
responsibility.
    Like-quality lease products means lease products which have similar 
chemical, physical, and legal characteristics.
    Marketable condition means lease products which are sufficiently 
free from impurities and otherwise in a condition that they will be 
accepted by a purchaser under a sales contract typical for the field or 
area.
    Marketing affiliate means an affiliate of the lessee whose function 
is to acquire only the lessee's production and to market that 
production.
    Minimum royalty means that minimum amount of annual royalty that the 
lessee must pay as specified in the lease or in applicable leasing 
regulations.
    Net-back method (or work-back method) means a method for calculating 
market value of gas at the lease. Under this method, costs of 
transportation, processing, or manufacturing are deducted from the 
proceeds received for the gas, residue gas or gas plant products, and 
any extracted, processed, or manufactured products, or from the value of 
the gas, residue gas or gas plant products, and any extracted, 
processed, or manufactured products, at the first point at which 
reasonable values for any such products may be determined by a sale 
pursuant to an arm's-length contract or comparison to other sales of 
such products, to ascertain value at the lease.

[[Page 768]]

    Net output means the quantity of residue gas and each gas plant 
product that a processing plant produces.
    Net profit share (for applicable Federal leases) means the specified 
share of the net profit from production of oil and gas as provided in 
the agreement.
    Netting means the deduction of an allowance from the sales value by 
reporting a net sales value, instead of correctly reporting the 
deduction as a separate entry on Form MMS-2014.
    Outer Continental Shelf (OCS) means all submerged lands lying 
seaward and outside of the area of land beneath navigable waters as 
defined in section 2 of the Submerged Lands Act (43 U.S.C. 1301) and of 
which the subsoil and seabed appertain to the United States and are 
subject to its jurisdiction and control.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Posted price means the price, net of all adjustments for quality and 
location, specified in publicly available price bulletins or other price 
notices available as part of normal business operations for quantities 
of unprocessed gas, residue gas, or gas plant products in marketable 
condition.
    Processing means any process designed to remove elements or 
compounds (hydrocarbon and nonhydrocarbon) from gas, including 
absorption, adsorption, or refrigeration. Field processes which normally 
take place on or near the lease, such as natural pressure reduction, 
mechanical separation, heating, cooling, dehydration, and compression, 
are not considered processing. The changing of pressures and/or 
temperatures in a reservoir is not considered processing.
    Residue gas means that hydrocarbon gas consisting principally of 
methane resulting from processing gas.
    Sales type code means the contract type or general disposition 
(e.g., arm's-length or non-arm's-length) of production from the lease. 
The sales type code applies to the sales contract, or other disposition, 
and not to the arm's-length or non-arm's-length nature of a 
transportation or processing allowance.
    Section 6 lease means an OCS lease subject to section 6 of the Outer 
Continental Shelf Lands Act, as amended, 43 U.S.C. 1335.
    Spot sales agreement means a contract wherein a seller agrees to 
sell to a buyer a specified amount of unprocessed gas, residue gas, or 
gas plant products at a specified price over a fixed period, usually of 
short duration, which does not normally require a cancellation notice to 
terminate, and which does not contain an obligation, nor imply an 
intent, to continue in subsequent periods.
    Warranty contract means a long-term contract entered into prior to 
1970, including any amendments thereto, for the sale of gas wherein the 
producer agrees to sell a specific amount of gas and the gas delivered 
in satisfaction of this obligation may come from fields or sources 
outside of the designated fields.

[53 FR 1272, Jan. 15, 1988, as amended at 53 FR 45084, Nov. 8, 1988; 61 
FR 5464, Feb. 12, 1996; 64 FR 43288, Aug. 10, 1999; 70 FR 11878, Mar. 
10, 2005; 73 FR 15890, Mar. 26, 2008]



Sec. 1206.152  Valuation standards--unprocessed gas.

    (a)(1) This section applies to the valuation of all gas that is not 
processed and all gas that is processed but is sold or otherwise 
disposed of by the lessee pursuant to an arm's-length contract prior to 
processing (including all gas where the lessee's arm's-length contract 
for the sale of that gas prior to processing provides for the value to 
be determined on the basis of a percentage of the purchaser's proceeds 
resulting from processing the gas). This section also applies to 
processed gas that must be valued prior to processing in accordance with 
Sec. 1206.155 of this part. Where the lessee's contract includes a 
reservation of the right to process the gas and the lessee exercises 
that right, Sec. 1206.153 of this part shall apply instead of this 
section.
    (2) The value of production, for royalty purposes, of gas subject to 
this subpart shall be the value of gas determined under this section 
less applicable allowances.
    (b)(1)(i) The value of gas sold under an arm's-length contract is 
the gross proceeds accruing to the lessee except

[[Page 769]]

as provided in paragraphs (b)(1)(ii), (iii), and (iv) of this section. 
The lessee shall have the burden of demonstrating that its contract is 
arm's-length. The value which the lessee reports, for royalty purposes, 
is subject to monitoring, review, and audit. For purposes of this 
section, gas which is sold or otherwise transferred to the lessee's 
marketing affiliate and then sold by the marketing affiliate pursuant to 
an arm's-length contract shall be valued in accordance with this 
paragraph based upon the sale by the marketing affiliate. Also, where 
the lessee's arm's-length contract for the sale of gas prior to 
processing provides for the value to be determined based upon a 
percentage of the purchaser's proceeds resulting from processing the 
gas, the value of production, for royalty purposes, shall never be less 
than a value equivalent to 100 percent of the value of the residue gas 
attributable to the processing of the lessee's gas.
    (ii) In conducting reviews and audits, ONRR will examine whether the 
contract reflects the total consideration actually transferred either 
directly or indirectly from the buyer to the seller for the gas. If the 
contract does not reflect the total consideration, then the ONRR may 
require that the gas sold pursuant to that contract be valued in 
accordance with paragraph (c) of this section. Value may not be less 
than the gross proceeds accruing to the lessee, including the additional 
consideration.
    (iii) If the ONRR determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the production because of misconduct by or between 
the contracting parties, or because the lessee otherwise has breached 
its duty to the lessor to market the production for the mutual benefit 
of the lessee and the lessor, then ONRR shall require that the gas 
production be valued pursuant to paragraph (c)(2) or (c)(3) of this 
section, and in accordance with the notification requirements of 
paragraph (e) of this section. When ONRR determines that the value may 
be unreasonable, ONRR will notify the lessee and give the lessee an 
opportunity to provide written information justifying the lessee's 
value.
    (iv) How to value over-delivered volumes under a cash-out program. 
This paragraph applies to situations where a pipeline purchases gas from 
a lessee according to a cash-out program under a transportation 
contract. For all over-delivered volumes, the royalty value is the price 
the pipeline is required to pay for volumes within the tolerances for 
over-delivery specified in the transportation contract. Use the same 
value for volumes that exceed the over-delivery tolerances even if those 
volumes are subject to a lower price under the transportation contract. 
However, if ONRR determines that the price specified in the 
transportation contract for over-delivered volumes is unreasonably low, 
the lessee must value all over-delivered volumes under paragraph (c)(2) 
or (c)(3) of this section.
    (2) Notwithstanding the provisions of paragraph (b)(1) of this 
section, the value of gas sold pursuant to a warranty contract shall be 
determined by ONRR, and due consideration will be given to all valuation 
criteria specified in this section. The lessee must request a value 
determination in accordance with paragraph (g) of this section for gas 
sold pursuant to a warranty contract; provided, however, that any value 
determination for a warranty contract in effect on the effective date of 
these regulations shall remain in effect until modified by ONRR.
    (3) ONRR may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the gas.
    (c) The value of gas subject to this section which is not sold 
pursuant to an arm's-length contract shall be the reasonable value 
determined in accordance with the first applicable of the following 
methods:
    (1) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract (or other disposition other than by 
an arm's-length contract), provided that those gross proceeds are 
equivalent to the gross proceeds derived from, or paid under, comparable 
arm's-length contracts for purchases, sales, or other dispositions of 
like-quality gas in the same field (or, if necessary to obtain a 
reasonable

[[Page 770]]

sample, from the same area). In evaluating the comparability of arm's-
length contracts for the purposes of these regulations, the following 
factors shall be considered: price, time of execution, duration, market 
or markets served, terms, quality of gas, volume, and such other factors 
as may be appropriate to reflect the value of the gas;
    (2) A value determined by consideration of other information 
relevant in valuing like-quality gas, including gross proceeds under 
arm's-length contracts for like-quality gas in the same field or nearby 
fields or areas, posted prices for gas, prices received in arm's-length 
spot sales of gas, other reliable public sources of price or market 
information, and other information as to the particular lease operation 
or the saleability of the gas; or
    (3) A net-back method or any other reasonable method to determine 
value.
    (d)(1) Notwithstanding any other provisions of this section, except 
paragraph (h) of this section, if the maximum price permitted by Federal 
law at which gas may be sold is less than the value determined pursuant 
to this section, then ONRR shall accept such maximum price as the value. 
For purposes of this section, price limitations set by any State or 
local government shall not be considered as a maximum price permitted by 
Federal law.
    (2) The limitation prescribed in paragraph (d)(1) of this section 
shall not apply to gas sold pursuant to a warranty contract and valued 
pursuant to paragraph (b)(2) of this section.
    (e)(1) Where the value is determined pursuant to paragraph (c) of 
this section, the lessee shall retain all data relevant to the 
determination of royalty value. Such data shall be subject to review and 
audit, and ONRR will direct a lessee to use a different value if it 
determines that the reported value is inconsistent with the requirements 
of these regulations.
    (2) Any Federal lessee will make available upon request to the 
authorized ONRR or State representatives, to the Office of the Inspector 
General of the Department of the Interior, or other person authorized to 
receive such information, arm's-length sales and volume data for like-
quality production sold, purchased or otherwise obtained by the lessee 
from the field or area or from nearby fields or areas.
    (3) A lessee shall notify ONRR if it has determined value pursuant 
to paragraph (c)(2) or (c)(3) of this section. The notification shall be 
by letter to the ONRR Director for Office of Natural Resources Revenue 
or his/her designee. The letter shall identify the valuation method to 
be used and contain a brief description of the procedure to be followed. 
The notification required by this paragraph is a one-time notification 
due no later than the end of the month following the month the lessee 
first reports royalties on a Form MMS-2014 using a valuation method 
authorized by paragraph (c)(2) or (c)(3) of this section, and each time 
there is a change in a method under paragraph (c)(2) or (c)(3) of this 
section.
    (f) If ONRR determines that a lessee has not properly determined 
value, the lessee shall pay the difference, if any, between royalty 
payments made based upon the value it has used and the royalty payments 
that are due based upon the value established by ONRR. The lessee shall 
also pay interest on that difference computed pursuant to Sec. 1218.54 
of this chapter. If the lessee is entitled to a credit, ONRR will 
provide instructions for the taking of that credit.
    (g) The lessee may request a value determination from ONRR. In that 
event, the lessee shall propose to ONRR a value determination method, 
and may use that method in determining value for royalty purposes until 
ONRR issues its decision. The lessee shall submit all available data 
relevant to its proposal. The ONRR shall expeditiously determine the 
value based upon the lessee's proposal and any additional information 
ONRR deems necessary. In making a value determination ONRR may use any 
of the valuation criteria authorized by this subpart. That determination 
shall remain effective for the period stated therein. After ONRR issues 
its determination, the lessee shall make the adjustments in accordance 
with paragraph (f) of this section.

[[Page 771]]

    (h) Notwithstanding any other provision of this section, under no 
circumstances shall the value of production for royalty purposes be less 
than the gross proceeds accruing to the lessee for lease production, 
less applicable allowances.
    (i) The lessee must place gas in marketable condition and market the 
gas for the mutual benefit of the lessee and the lessor at no cost to 
the Federal Government. Where the value established under this section 
is determined by a lessee's gross proceeds, that value will be increased 
to the extent that the gross proceeds have been reduced because the 
purchaser, or any other person, is providing certain services the cost 
of which ordinarily is the responsibility of the lessee to place the gas 
in marketable condition or to market the gas.
    (j) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. If there 
is no contract revision or amendment, and the lessee fails to take 
proper or timely action to receive prices or benefits to which it is 
entitled, it must pay royalty at a value based upon that obtainable 
price or benefit. Contract revisions or amendments shall be in writing 
and signed by all parties to an arm's-length contract. If the lessee 
makes timely application for a price increase or benefit allowed under 
its contract but the purchaser refuses, and the lessee takes reasonable 
measures, which are documented, to force purchaser compliance, the 
lessee will owe no additional royalties unless or until monies or 
consideration resulting from the price increase or additional benefits 
are received. This paragraph shall not be construed to permit a lessee 
to avoid its royalty payment obligation in situations where a purchaser 
fails to pay, in whole or in part or timely, for a quantity of gas.
    (k) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by ONRR of value under this section 
shall be considered final or binding as against the Federal Government 
or its beneficiaries until the audit period is formally closed.
    (l) Certain information submitted to ONRR to support valuation 
proposals, including transportation or extraordinary cost allowances, is 
exempted from disclosure by the Freedom of Information Act, 5 U.S.C. 
Sec. 552, or other Federal law. Any data specified by law to be 
privileged, confidential, or otherwise exempt will be maintained in a 
confidential manner in accordance with applicable law and regulations. 
All requests for information about determinations made under this 
subpart are to be submitted in accordance with the Freedom of 
Information Act regulation of the Department of the Interior, 43 CFR 
part 2.

[53 FR 1272, Jan. 15, 1988, as amended at 56 FR 46530, Sept. 13, 1991; 
61 FR 5464, Feb. 12, 1996; 62 FR 65761, 65762, Dec. 16, 1997]



Sec. 1206.153  Valuation standards--processed gas.

    (a)(1) This section applies to the valuation of all gas that is 
processed by the lessee and any other gas production to which this 
subpart applies and that is not subject to the valuation provisions of 
Sec. 1206.152 of this part. This section applies where the lessee's 
contract includes a reservation of the right to process the gas and the 
lessee exercises that right.
    (2) The value of production, for royalty purposes, of gas subject to 
this section shall be the combined value of the residue gas and all gas 
plant products determined pursuant to this section, plus the value of 
any condensate recovered downstream of the point of royalty settlement 
without resorting to processing determined pursuant to Sec. 1206.102 of 
this part, less applicable transportation allowances and processing 
allowances determined pursuant to this subpart.
    (b)(1)(i) The value of residue gas or any gas plant product sold 
under an arm's-length contract is the gross proceeds accruing to the 
lessee, except as provided in paragraphs (b)(1)(ii), (iii), and (iv) of 
this section. The lessee shall have the burden of demonstrating that its 
contract is arm's-length. The value that the lessee reports for royalty 
purposes is subject to monitoring, review, and audit. For purposes of 
this section, residue gas or any gas plant product which is sold or 
otherwise transferred

[[Page 772]]

to the lessee's marketing affiliate and then sold by the marketing 
affiliate pursuant to an arm's-length contract shall be valued in 
accordance with this paragraph based upon the sale by the marketing 
affiliate.
    (ii) In conducting these reviews and audits, ONRR will examine 
whether or not the contract reflects the total consideration actually 
transferred either directly or indirectly from the buyer to the seller 
for the residue gas or gas plant product. If the contract does not 
reflect the total consideration, then the ONRR may require that the 
residue gas or gas plant product sold pursuant to that contract be 
valued in accordance with paragraph (c) of this section. Value may not 
be less than the gross proceeds accruing to the lessee, including the 
additional consideration.
    (iii) If the ONRR determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the residue gas or gas plant product because of 
misconduct by or between the contracting parties, or because the lessee 
otherwise has breached its duty to the lessor to market the production 
for the mutual benefit of the lessee and the lessor, then ONRR shall 
require that the residue gas or gas plant product be valued pursuant to 
paragraph (c)(2) or (c)(3) of this section, and in accordance with the 
notification requirements of paragraph (e) of this section. When ONRR 
determines that the value may be unreasonable, ONRR will notify the 
lessee and give the lessee an opportunity to provide written information 
justifying the lessee's value.
    (iv) How to value over-delivered volumes under a cash-out program. 
This paragraph applies to situations where a pipeline purchases gas from 
a lessee according to a cash-out program under a transportation 
contract. For all over-delivered volumes, the royalty value is the price 
the pipeline is required to pay for volumes within the tolerances for 
over-delivery specified in the transportation contract. Use the same 
value for volumes that exceed the over-delivery tolerances even if those 
volumes are subject to a lower price under the transportation contract. 
However, if ONRR determines that the price specified in the 
transportation contract for over-delivered volumes is unreasonably low, 
the lessee must value all over-delivered volumes under paragraph (c)(2) 
or (c)(3) of this section.
    (2) Notwithstanding the provisions of paragraph (b)(1) of this 
section, the value of residue gas sold pursuant to a warranty contract 
shall be determined by ONRR, and due consideration will be given to all 
valuation criteria specified in this section. The lessee must request a 
value determination in accordance with paragraph (g) of this section for 
gas sold pursuant to a warranty contract; provided, however, that any 
value determination for a warranty contract in effect on the effective 
date of these regulations shall remain in effect until modified by ONRR.
    (3) ONRR may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the residue gas or gas plant 
product.
    (c) The value of residue gas or any gas plant product which is not 
sold pursuant to an arm's-length contract shall be the reasonable value 
determined in accordance with the first applicable of the following 
methods:
    (1) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract (or other disposition other than by 
an arm's-length contract), provided that those gross proceeds are 
equivalent to the gross proceeds derived from, or paid under, comparable 
arm's-length contracts for purchases, sales, or other dispositions of 
like quality residue gas or gas plant products from the same processing 
plant (or, if necessary to obtain a reasonable sample, from nearby 
plants). In evaluating the comparability of arm's-length contracts for 
the purposes of these regulations, the following factors shall be 
considered: price, time of execution, duration, market or markets 
served, terms, quality of residue gas or gas plant products, volume, and 
such other factors as may be appropriate to reflect the value of the 
residue gas or gas plant products;
    (2) A value determined by consideration of other information 
relevant in valuing like-quality residue gas or gas plant products, 
including gross proceeds under arm's-length contracts for

[[Page 773]]

like-quality residue gas or gas plant products from the same gas plant 
or other nearby processing plants, posted prices for residue gas or gas 
plant products, prices received in spot sales of residue gas or gas 
plant products, other reliable public sources of price or market 
information, and other information as to the particular lease operation 
or the saleability of such residue gas or gas plant products; or
    (3) A net-back method or any other reasonable method to determine 
value.
    (d)(1) Notwithstanding any other provisions of this section, except 
paragraph (h) of this section, if the maximum price permitted by Federal 
law at which any residue gas or gas plant products may be sold is less 
than the value determined pursuant to this section, then ONRR shall 
accept such maximum price as the value. For the purposes of this 
section, price limitations set by any State or local government shall 
not be considered as a maximum price permitted by Federal law.
    (2) The limitation prescribed by paragraph (d)(1) of this section 
shall not apply to residue gas sold pursuant to a warranty contract and 
valued pursuant to paragraph (b)(2) of this section.
    (e)(1) Where the value is determined pursuant to paragraph (c) of 
this section, the lessee shall retain all data relevant to the 
determination of royalty value. Such data shall be subject to review and 
audit, and ONRR will direct a lessee to use a different value if it 
determines upon review or audit that the reported value is inconsistent 
with the requirements of these regulations.
    (2) Any Federal lessee will make available upon request to the 
authorized ONRR or State representatives, to the Office of the Inspector 
General of the Department of the Interior, or other persons authorized 
to receive such information, arm's-length sales and volume data for 
like-quality residue gas and gas plant products sold, purchased or 
otherwise obtained by the lessee from the same processing plant or from 
nearby processing plants.
    (3) A lessee shall notify ONRR if it has determined any value 
pursuant to paragraph (c)(2) or (c)(3) of this section. The notification 
shall be by letter to the ONRR Director for Office of Natural Resources 
or his/her designee. The letter shall identify the valuation method to 
be used and contain a brief description of the procedure to be followed. 
The notification required by this paragraph is a one-time notification 
due no later than the end of the month following the month the lessee 
first reports royalties on a Form MMS-2014 using a valuation method 
authorized by paragraph (c)(2) or (c)(3) of this section, and each time 
there is a change in a method under paragraph (c)(2) or (c)(3) of this 
section.
    (f) If ONRR determines that a lessee has not properly determined 
value, the lessee shall pay the difference, if any, between royalty 
payments made based upon the value it has used and the royalty payments 
that are due based upon the value established by ONRR. The lessee shall 
also pay interest computed on that difference pursuant to Sec. 1218.54 
of this chapter. If the lessee is entitled to a credit, ONRR will 
provide instructions for the taking of that credit.
    (g) The lessee may request a value determination from ONRR. In that 
event, the lessee shall propose to ONRR a value determination method, 
and may use that method in determining value for royalty purposes until 
ONRR issues its decision. The lessee shall submit all available data 
relevant to its proposal. The ONRR shall expeditiously determine the 
value based upon the lessee's proposal and any additional information 
ONRR deems necessary. In making a value determination, ONRR may use any 
of the valuation criteria authorized by this subpart. That determination 
shall remain effective for the period stated therein. After ONRR issues 
its determination, the lessee shall make the adjustments in accordance 
with paragraph (f) of this section.
    (h) Notwithstanding any other provision of this section, under no 
circumstances shall the value of production for royalty purposes be less 
than the gross proceeds accruing to the lessee for residue gas and/or 
any gas plant products, less applicable transportation allowances and 
processing allowances determined pursuant to this subpart.
    (i) The lessee must place residue gas and gas plant products in 
marketable condition and market the residue gas

[[Page 774]]

and gas plant products for the mutual benefit of the lessee and the 
lessor at no cost to the Federal Government. Where the value established 
under this section is determined by a lessee's gross proceeds, that 
value will be increased to the extent that the gross proceeds have been 
reduced because the purchaser, or any other person, is providing certain 
services the cost of which ordinarily is the responsibility of the 
lessee to place the residue gas or gas plant products in marketable 
condition or to market the residue gas and gas plant products.
    (j) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. Absent 
contract revision or amendment, if the lessee fails to take proper or 
timely action to receive prices or benefits to which it is entitled it 
must pay royalty at a value based upon that obtainable price or benefit. 
Contract revisions or amendments shall be in writing and signed by all 
parties to an arm's-length contract. If the lessee makes timely 
application for a price increase or benefit allowed under its contract 
but the purchaser refuses, and the lessee takes reasonable measures, 
which are documented, to force purchaser compliance, the lessee will owe 
no additional royalties unless or until monies or consideration 
resulting from the price increase or additional benefits are received. 
This paragraph shall not be construed to permit a lessee to avoid its 
royalty payment obligation in situations where a purchaser fails to pay, 
in whole or in part, or timely, for a quantity of residue gas or gas 
plant product.
    (k) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by ONRR of value under this section 
shall be considered final or binding against the Federal Government or 
its beneficiaries until the audit period is formally closed.
    (l) Certain information submitted to ONRR to support valuation 
proposals, including transportation allowances, processing allowances or 
extraordinary cost allowances, is exempted from disclosure by the 
Freedom of Information Act, 5 U.S.C. 552, or other Federal law. Any data 
specified by law to be privileged, confidential, or otherwise exempt, 
will be maintained in a confidential manner in accordance with 
applicable law and regulations. All requests for information about 
determinations made under this part are to be submitted in accordance 
with the Freedom of Information Act regulation of the Department of the 
Interior, 43 CFR part 2.

[53 FR 1272, Jan. 15, 1988, as amended at 56 FR 46530, Sept. 13, 1991; 
61 FR 5465, Feb. 12, 1996; 62 FR 65762, Dec. 16, 1997]



Sec. 1206.154  Determination of quantities and qualities for computing 

royalties.

    (a)(1) Royalties shall be computed on the basis of the quantity and 
quality of unprocessed gas at the point of royalty settlement approved 
by BLM or BOEMRE for onshore and OCS leases, respectively.
    (2) If the value of gas determined pursuant to Sec. 1206.152 of 
this subpart is based upon a quantity and/or quality that is different 
from the quantity and/or quality at the point of royalty settlement, as 
approved by BLM orBOEMRE, that value shall be adjusted for the 
differences in quantity and/or quality.
    (b)(1) For residue gas and gas plant products, the quantity basis 
for computing royalties due is the monthly net output of the plant even 
though residue gas and/or gas plant products may be in temporary 
storage.
    (2) If the value of residue gas and/or gas plant products determined 
pursuant to Sec. 1206.153 of this subpart is based upon a quantity and/
or quality of residue gas and/or gas plant products that is different 
from that which is attributable to a lease, determined in accordance 
with paragraph (c) of this section, that value shall be adjusted for the 
differences in quantity and/or quality.
    (c) The quantity of the residue gas and gas plant products 
attributable to a lease shall be determined according to the following 
procedure:
    (1) When the net output of the processing plant is derived from gas 
obtained from only one lease, the quantity of the residue gas and gas 
plant products on which computations of

[[Page 775]]

royalty are based is the net output of the plant.
    (2) When the net output of a processing plant is derived from gas 
obtained from more than one lease producing gas of uniform content, the 
quantity of the residue gas and gas plant products allocable to each 
lease shall be in the same proportions as the ratios obtained by 
dividing the amount of gas delivered to the plant from each lease by the 
total amount of gas delivered from all leases.
    (3) When the net output of a processing plant is derived from gas 
obtained from more than one lease producing gas of nonuniform content, 
the quantity of the residue gas allocable to each lease will be 
determined by multiplying the amount of gas delivered to the plant from 
the lease by the residue gas content of the gas, and dividing the 
arithmetical product thus obtained by the sum of the similar 
arithmetical products separately obtained for all leases from which gas 
is delivered to the plant, and then multiplying the net output of the 
residue gas by the arithmetic quotient obtained. The net output of gas 
plant products allocable to each lease will be determined by multiplying 
the amount of gas delivered to the plant from the lease by the gas plant 
product content of the gas, and dividing the arithmetical product thus 
obtained by the sum of the similar arithmetical products separately 
obtained for all leases from which gas is delivered to the plant, and 
then multiplying the net output of each gas plant product by the 
arithmetic quotient obtained.
    (4) A lessee may request ONRR approval of other methods for 
determining the quantity of residue gas and gas plant products allocable 
to each lease. If approved, such method will be applicable to all gas 
production from Federal leases that is processed in the same plant.
    (d)(1) No deductions may be made from the royalty volume or royalty 
value for actual or theoretical losses. Any actual loss of unprocessed 
gas that may be sustained prior to the royalty settlement metering or 
measurement point will not be subject to royalty provided that such loss 
is determined to have been unavoidable by BLM orBOEMRE, as appropriate.
    (2) Except as provided in paragraph (d)(1) of this section and Sec. 
1202.151(c), royalties are due on 100 percent of the volume determined 
in accordance with paragraphs (a) through (c) of this section. There can 
be no reduction in that determined volume for actual losses after the 
quantity basis has been determined or for theoretical losses that are 
claimed to have taken place. Royalties are due on 100 percent of the 
value of the unprocessed gas, residue gas, and/or gas plant products as 
provided in this subpart, less applicable allowances. There can be no 
deduction from the value of the unprocessed gas, residue gas, and/or gas 
plant products to compensate for actual losses after the quantity basis 
has been determined, or for theoretical losses that are claimed to have 
taken place.

[53 FR 1272, Jan. 15, 1988, as amended at 61 FR 5465, Feb. 12, 1996]



Sec. 1206.155  Accounting for comparison.

    (a) Except as provided in paragraph (b) of this section, where the 
lessee (or a person to whom the lessee has transferred gas pursuant to a 
non-arm's-length contract or without a contract) processes the lessee's 
gas and after processing the gas the residue gas is not sold pursuant to 
an arm's-length contract, the value, for royalty purposes, shall be the 
greater of (1) the combined value, for royalty purposes, of the residue 
gas and gas plant products resulting from processing the gas determined 
pursuant to Sec. 1206.153 of this subpart, plus the value, for royalty 
purposes, of any condensate recovered downstream of the point of royalty 
settlement without resorting to processing determined pursuant to Sec. 
1206.102 of this subpart; or (2) the value, for royalty purposes, of the 
gas prior to processing determined in accordance with Sec. 1206.152 of 
this subpart.
    (b) The requirement for accounting for comparison contained in the 
terms of leases will govern as provided in Sec. 1206.150(b) of this 
subpart. When accounting for comparison is required by the lease terms, 
such accounting for

[[Page 776]]

comparison shall be determined in accordance with paragraph (a) of this 
section.

[53 FR 1272, Jan. 15, 1988, as amended at 61 FR 5465, Feb. 12, 1996]



Sec. 1206.156  Transportation allowances--general.

    (a) Where the value of gas has been determined pursuant to Sec. 
1206.152 or Sec. 1206.153 of this subpart at a point (e.g., sales point 
or point of value determination) off the lease, ONRR shall allow a 
deduction for the reasonable actual costs incurred by the lessee to 
transport unprocessed gas, residue gas, and gas plant products from a 
lease to a point off the lease including, if appropriate, transportation 
from the lease to a gas processing plant off the lease and from the 
plant to a point away from the plant.
    (b) Transportation costs must be allocated among all products 
produced and transported as provided in Sec. 1206.157.
    (c)(1) Except as provided in paragraph (c)(3) of this section, for 
unprocessed gas valued in accordance with Sec. 1206.152 of this 
subpart, the transportation allowance deduction on the basis of a sales 
type code may not exceed 50 percent of the value of the unprocessed gas 
determined under Sec. 1206.152 of this subpart.
    (2) Except as provided in paragraph (c)(3) of this section, for gas 
production valued in accordance with Sec. 1206.153 of this subpart, the 
transportation allowance deduction on the basis of a sales type code may 
not exceed 50 percent of the value of the residue gas or gas plant 
product determined under Sec. 1206.153 of this subpart. For purposes of 
this section, natural gas liquids will be considered one product.
    (3) Upon request of a lessee, ONRR may approve a transportation 
allowance deduction in excess of the limitations prescribed by 
paragraphs (c)(1) and (c)(2) of this section. The lessee must 
demonstrate that the transportation costs incurred in excess of the 
limitations prescribed in paragraphs (c)(1) and (c)(2) of this section 
were reasonable, actual, and necessary. An application for exception 
(using Form MMS-4393, Request to Exceed Regulatory Allowance Limitation) 
must contain all relevant and supporting documentation necessary for 
ONRR to make a determination. Under no circumstances may the value for 
royalty purposes under any sales type code be reduced to zero.
    (d) If, after a review or audit, ONRR determines that a lessee has 
improperly determined a transportation allowance authorized by this 
subpart, then the lessee must pay any additional royalties, plus 
interest, determined in accordance with Sec. 1218.54 of this chapter, 
or will be entitled to a credit, with interest. If the lessee takes a 
deduction for transportation on Form MMS-2014 by improperly netting the 
allowance against the sales value of the unprocessed gas, residue gas, 
and gas plant products instead of reporting the allowance as a separate 
entry, ONRR may assess a civil penalty under 30 CFR part 1241.

[53 FR 1272, Jan. 15, 1988, as amended at 61 FR 5465, Feb. 12, 1996; 64 
FR 43288, Aug. 10, 1999; 73 FR 15890, Mar. 26, 2008]



Sec. 1206.157  Determination of transportation allowances.

    (a) Arm's-length transportation contracts. (1)(i) For transportation 
costs incurred by a lessee under an arm's-length contract, the 
transportation allowance shall be the reasonable, actual costs incurred 
by the lessee for transporting the unprocessed gas, residue gas and/or 
gas plant products under that contract, except as provided in paragraphs 
(a)(1)(ii) and (a)(1)(iii) of this section, subject to monitoring, 
review, audit, and adjustment. The lessee shall have the burden of 
demonstrating that its contract is arm's-length. ONRR' prior approval is 
not required before a lessee may deduct costs incurred under an arm's-
length contract. Such allowances shall be subject to the provisions of 
paragraph (f) of this section. The lessee must claim a transportation 
allowance by reporting it as a separate entry on the Form MMS-2014.
    (ii) In conducting reviews and audits, ONRR will examine whether or 
not the contract reflects more than the consideration actually 
transferred either directly or indirectly from the lessee to the 
transporter for the transportation. If the contract reflects more than 
the total consideration, then the ONRR

[[Page 777]]

may require that the transportation allowance be determined in 
accordance with paragraph (b) of this section.
    (iii) If the ONRR determines that the consideration paid pursuant to 
an arm's-length transportation contract does not reflect the reasonable 
value of the transportation because of misconduct by or between the 
contracting parties, or because the lessee otherwise has breached its 
duty to the lessor to market the production for the mutual benefit of 
the lessee and the lessor, then ONRR shall require that the 
transportation allowance be determined in accordance with paragraph (b) 
of this section. When ONRR determines that the value of the 
transportation may be unreasonable, ONRR will notify the lessee and give 
the lessee an opportunity to provide written information justifying the 
lessee's transportation costs.
    (2)(i) If an arm's-length transportation contract includes more than 
one product in a gaseous phase and the transportation costs attributable 
to each product cannot be determined from the contract, the total 
transportation costs shall be allocated in a consistent and equitable 
manner to each of the products transported in the same proportion as the 
ratio of the volume of each product (excluding waste products which have 
no value) to the volume of all products in the gaseous phase (excluding 
waste products which have no value). Except as provided in this 
paragraph, no allowance may be taken for the costs of transporting lease 
production which is not royalty bearing without ONRR approval.
    (ii) Notwithstanding the requirements of paragraph (i), the lessee 
may propose to ONRR a cost allocation method on the basis of the values 
of the products transported. ONRR shall approve the method unless it 
determines that it is not consistent with the purposes of the 
regulations in this part.
    (3) If an arm's-length transportation contract includes both gaseous 
and liquid products and the transportation costs attributable to each 
cannot be determined from the contract, the lessee shall propose an 
allocation procedure toONRR. The lessee may use the transportation 
allowance determined in accordance with its proposed allocation 
procedure until ONRR issues its determination on the acceptability of 
the cost allocation. The lessee shall submit all relevant data to 
support its proposal. ONRR shall then determine the gas transportation 
allowance based upon the lessee's proposal and any additional 
information ONRR deems necessary. The lessee must submit the allocation 
proposal within 3 months of claiming the allocated deduction on the Form 
MMS-2014.
    (4) Where the lessee's payments for transportation under an arm's-
length contract are not based on a dollar per unit, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent for 
the purposes of this section.
    (5) Where an arm's-length sales contract price or a posted price 
includes a provision whereby the listed price is reduced by a 
transportation factor, ONRR will not consider the transportation factor 
to be a transportation allowance. The transportation factor may be used 
in determining the lessee's gross proceeds for the sale of the product. 
The transportation factor may not exceed 50 percent of the base price of 
the product without ONRR approval.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length transportation contract or has no contract, including those 
situations where the lessee performs transportation services for itself, 
the transportation allowance will be based upon the lessee's reasonable 
actual costs as provided in this paragraph. All transportation 
allowances deducted under a non-arm's-length or no contract situation 
are subject to monitoring, review, audit, and adjustment. The lessee 
must claim a transportation allowance by reporting it as a separate 
entry on the Form MMS-2014. When necessary or appropriate, ONRR may 
direct a lessee to modify its estimated or actual transportation 
allowance deduction.
    (2) The transportation allowance for non-arm's-length or no-contract 
situations shall be based upon the lessee's actual costs for 
transportation during

[[Page 778]]

the reporting period, including operating and maintenance expenses, 
overhead, and either depreciation and a return on undepreciated capital 
investment in accordance with paragraph (b)(2)(iv)(A) of this section, 
or a cost equal to the initial depreciable investment in the 
transportation system multiplied by a rate of return in accordance with 
paragraph (b)(2)(iv)(B) of this section. Allowable capital costs are 
generally those costs for depreciable fixed assets (including costs of 
delivery and installation of capital equipment) which are an integral 
part of the transportation system.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
transportation system; maintenance of equipment; maintenance labor; and 
other directly allocable and attributable maintenance expenses which the 
lessee can document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the transportation system is an allowable expense. 
State and Federal income taxes and severance taxes and other fees, 
including royalties, are not allowable expenses.
    (iv) A lessee may use either depreciation or a return on depreciable 
capital investment. After a lessee has elected to use either method for 
a transportation system, the lessee may not later elect to change to the 
other alternative without approval of the ONRR .
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the transportation system services, or a 
unit of production method. After an election is made, the lessee may not 
change methods without ONRR approval. A change in ownership of a 
transportation system shall not alter the depreciation schedule 
established by the original transporter/lessee for purposes of the 
allowance calculation. With or without a change in ownership, a 
transportation system shall be depreciated only once. Equipment shall 
not be depreciated below a reasonable salvage value.
    (B) The ONRR shall allow as a cost an amount equal to the allowable 
initial capital investment in the transportation system multiplied by 
the rate of return determined pursuant to paragraph (b)(2)(v) of this 
section. No allowance shall be provided for depreciation. This 
alternative shall apply only to transportation facilities first placed 
in service after March 1, 1988.
    (v) The rate of return must be 1.3 times the industrial rate 
associated with Standard & Poor's BBB rating. The BBB rate must be the 
monthly average rate as published in Standard & Poor's Bond Guide for 
the first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3)(i) The deduction for transportation costs shall be determined on 
the basis of the lessee's cost of transporting each product through each 
individual transportation system. Where more than one product in a 
gaseous phase is transported, the allocation of costs to each of the 
products transported shall be made in a consistent and equitable manner 
in the same proportion as the ratio of the volume of each product 
(excluding waste products which have no value) to the volume of all 
products in the gaseous phase (excluding waste products which have no 
value). Except as provided in this paragraph, the lessee may not take an 
allowance for transporting a product which is not royalty bearing 
without ONRR approval.
    (ii) Notwithstanding the requirements of paragraph (b)(3)(i), the 
lessee may propose to the ONRR a cost allocation method on the basis of 
the values of the products transported. ONRR shall approve the method 
unless it determines that it is not consistent with the purposes of the 
regulations in this part.
    (4) Where both gaseous and liquid products are transported through 
the same transportation system, the lessee shall propose a cost 
allocation procedure to ONRR. The lessee may use the transportation 
allowance determined

[[Page 779]]

in accordance with its proposed allocation procedure until ONRR issues 
its determination on the acceptability of the cost allocation. The 
lessee shall submit all relevant data to support its proposal. ONRR 
shall then determine the transportation allowance based upon the 
lessee's proposal and any additional information ONRR deems necessary. 
The lessee must submit the allocation proposal within 3 months of 
claiming the allocated deduction on the Form MMS-2014.
    (5) You may apply for an exception from the requirement to compute 
actual costs under paragraphs (b)(1) through (b)(4) of this section.
    (i) ONRR will grant the exception if:
    (A) The transportation system has a tariff filed with the Federal 
Energy Regulatory Commission (FERC) or a state regulatory agency, that 
FERC or the state regulatory agency has permitted to become effective, 
and
    (B) Third parties are paying prices, including discounted prices, 
under the tariff to transport gas on the system under arm's-length 
transportation contracts.
    (ii) If ONRR approves the exception, you must calculate your 
transportation allowance for each production month based on the lesser 
of the volume-weighted average of the rates paid by the third parties 
under arm's-length transportation contracts during that production month 
or the non-arm's-length payment by the lessee to the pipeline.
    (iii) If during any production month there are no prices paid under 
the tariff by third parties to transport gas on the system under arm's-
length transportation contracts, you may use the volume-weighted average 
of the rates paid by third parties under arm's-length transportation 
contracts in the most recent preceding production month in which the 
tariff remains in effect and third parties paid such rates, for up to 
five successive production months. You must use the non-arm's-length 
payment by the lessee to the pipeline if it is less than the volume-
weighted average of the rates paid by third parties under arm's-length 
contracts.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) You must 
use a separate entry on Form MMS-2014 to notify ONRR of a transportation 
allowance.
    (ii) ONRR may require you to submit arm's-length transportation 
contracts, production agreements, operating agreements, and related 
documents. Recordkeeping requirements are found at part 1207 of this 
chapter.
    (iii) You may not use a transportation allowance that was in effect 
before March 1, 1988. You must use the provisions of this subpart to 
determine your transportation allowance.
    (2) Non-arm's-length or no contract. (i) You must use a separate 
entry on Form MMS-2014 to notify ONRR of a transportation allowance.
    (ii) For new transportation facilities or arrangements, base your 
initial deduction on estimates of allowable gas transportation costs for 
the applicable period. Use the most recently available operations data 
for the transportation system or, if such data are not available, use 
estimates based on data for similar transportation systems. Paragraph 
(e) of this section will apply when you amend your report based on your 
actual costs.
    (iii) ONRR may require you to submit all data used to calculate the 
allowance deduction. Recordkeeping requirements are found at part 1207 
of this chapter.
    (iv) If you are authorized under paragraph (b)(5) of this section to 
use an exception to the requirement to calculate your actual 
transportation costs, you must follow the reporting requirements of 
paragraph (c)(1) of this section.
    (v) You may not use a transportation allowance that was in effect 
before March 1, 1988. You must use the provisions of this subpart to 
determine your transportation allowance.
    (d) Interest and assessments. (1) If a lessee deducts a 
transportation allowance on its Form MMS-2014 that exceeds 50 percent of 
the value of the gas transported without obtaining prior approval of 
ONRR under Sec. 1206.156, the lessee shall pay interest on the excess 
allowance amount taken from the date such amount is taken to the date 
the lessee files an exception request with ONRR.
    (2) If a lessee erroneously reports a transportation allowance which 
results

[[Page 780]]

in an underpayment of royalties, interest shall be paid on the amount of 
that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with Sec. 1218.54 of this chapter.
    (e) Adjustments. (1) If the actual transportation allowance is less 
than the amount the lessee has taken on Form MMS-2014 for each month 
during the allowance reporting period, the lessee shall be required to 
pay additional royalties due plus interest computed under Sec. 1218.54 
of this chapter from the allowance reporting period when the lessee took 
the deduction to the date the lessee repays the difference to ONRR. If 
the actual transportation allowance is greater than the amount the 
lessee has taken on Form MMS-2014 for each month during the allowance 
reporting period, the lessee shall be entitled to a credit without 
interest.
    (2) For lessees transporting production from onshore Federal leases, 
the lessee must submit a corrected Form MMS-2014 to reflect actual 
costs, together with any payment, in accordance with instructions 
provided by ONRR.
    (3) For lessees transporting gas production from leases on the OCS, 
if the lessee's estimated transportation allowance exceeds the allowance 
based on actual costs, the lessee must submit a corrected Form MMS-2014 
to reflect actual costs, together with its payment, in accordance with 
instructions provided by ONRR. If the lessee's estimated transportation 
allowance is less than the allowance based on actual costs, the refund 
procedure will be specified by ONRR.
    (f) Allowable costs in determining transportation allowances. You 
may include, but are not limited to (subject to the requirements of 
paragraph (g) of this section), the following costs in determining the 
arm's-length transportation allowance under paragraph (a) of this 
section or the non-arm's-length transportation allowance under paragraph 
(b) of this section. You may not use any cost as a deduction that 
duplicates all or part of any other cost that you use under this 
paragraph.
    (1) Firm demand charges paid to pipelines. You may deduct firm 
demand charges or capacity reservation fees paid to a pipeline, 
including charges or fees for unused firm capacity that you have not 
sold before you report your allowance. If you receive a payment from any 
party for release or sale of firm capacity after reporting a 
transportation allowance that included the cost of that unused firm 
capacity, or if you receive a payment or credit from the pipeline for 
penalty refunds, rate case refunds, or other reasons, you must reduce 
the firm demand charge claimed on the Form MMS-2014 by the amount of 
that payment. You must modify the Form MMS-2014 by the amount received 
or credited for the affected reporting period, and pay any resulting 
royalty and late payment interest due;
    (2) Gas supply realignment (GSR) costs. The GSR costs result from a 
pipeline reforming or terminating supply contracts with producers to 
implement the restructuring requirements of FERC Orders in 18 CFR part 
284;
    (3) Commodity charges. The commodity charge allows the pipeline to 
recover the costs of providing service;
    (4) Wheeling costs. Hub operators charge a wheeling cost for 
transporting gas from one pipeline to either the same or another 
pipeline through a market center or hub. A hub is a connected manifold 
of pipelines through which a series of incoming pipelines are 
interconnected to a series of outgoing pipelines;
    (5) Gas Research Institute (GRI) fees. The GRI conducts research, 
development, and commercialization programs on natural gas related 
topics for the benefit of the U.S. gas industry and gas customers. GRI 
fees are allowable provided such fees are mandatory in FERC-approved 
tariffs;
    (6) Annual Charge Adjustment (ACA) fees. FERC charges these fees to 
pipelines to pay for its operating expenses;
    (7) Payments (either volumetric or in value) for actual or 
theoretical losses. However, theoretical losses are not deductible in 
non-arm's-length transportation arrangements unless the transportation 
allowance is based on arm's-length transportation rates charged under a 
FERC- or state regulatory-approved tariff under paragraph (b)(5) of this 
section. If you receive volumes or credit for line gain, you must reduce

[[Page 781]]

your transportation allowance accordingly and pay any resulting 
royalties and late payment interest due;
    (8) Temporary storage services. This includes short duration storage 
services offered by market centers or hubs (commonly referred to as 
``parking'' or ``banking''), or other temporary storage services 
provided by pipeline transporters, whether actual or provided as a 
matter of accounting. Temporary storage is limited to 30 days or less; 
and
    (9) Supplemental costs for compression, dehydration, and treatment 
of gas. ONRR allows these costs only if such services are required for 
transportation and exceed the services necessary to place production 
into marketable condition required under Sec. Sec. 1206.152(i) and 
1206.153(i) of this part.
    (10) Costs of surety. You may deduct the costs of securing a letter 
of credit, or other surety, that the pipeline requires you as a shipper 
to maintain under an arm's-length transportation contract.
    (g) Nonallowable costs in determining transportation allowances. 
Lessees may not include the following costs in determining the arm's-
length transportation allowance under paragraph (a) of this section or 
the non-arm's-length transportation allowance under paragraph (b) of 
this section:
    (1) Fees or costs incurred for storage. This includes storing 
production in a storage facility, whether on or off the lease, for more 
than 30 days;
    (2) Aggregator/marketer fees. This includes fees you pay to another 
person (including your affiliates) to market your gas, including 
purchasing and reselling the gas, or finding or maintaining a market for 
the gas production;
    (3) Penalties you incur as shipper. These penalties include, but are 
not limited to:
    (i) Over-delivery cash-out penalties. This includes the difference 
between the price the pipeline pays you for over-delivered volumes 
outside the tolerances and the price you receive for over-delivered 
volumes within the tolerances;
    (ii) Scheduling penalties. This includes penalties you incur for 
differences between daily volumes delivered into the pipeline and 
volumes scheduled or nominated at a receipt or delivery point;
    (iii) Imbalance penalties. This includes penalties you incur 
(generally on a monthly basis) for differences between volumes delivered 
into the pipeline and volumes scheduled or nominated at a receipt or 
delivery point; and
    (iv) Operational penalties. This includes fees you incur for 
violation of the pipeline's curtailment or operational orders issued to 
protect the operational integrity of the pipeline;
    (4) Intra-hub transfer fees. These are fees you pay to hub operators 
for administrative services (e.g., title transfer tracking) necessary to 
account for the sale of gas within a hub;
    (5) Fees paid to brokers. This includes fees paid to parties who 
arrange marketing or transportation, if such fees are separately 
identified from aggregator/marketer fees;
    (6) Fees paid to scheduling service providers. This includes fees 
paid to parties who provide scheduling services, if such fees are 
separately identified from aggregator/marketer fees;
    (7) Internal costs. This includes salaries and related costs, rent/
space costs, office equipment costs, legal fees, and other costs to 
schedule, nominate, and account for sale or movement of production; and
    (8) Other nonallowable costs. Any cost you incur for services you 
are required to provide at no cost to the lessor.
    (h) Other transportation cost determinations. Use this section when 
calculating transportation costs to establish value using a netback 
procedure or any other procedure that requires deduction of 
transportation costs.

[53 FR 1272, Jan. 15, 1988, as amended at 53 FR 45762, Nov. 14, 1988; 61 
FR 5465, Feb. 12, 1996; 62 FR 65762, Dec. 16, 1997; 70 FR 11878, Mar. 
10, 2005; 73 FR 15891, Mar. 26, 2008]



Sec. 1206.158  Processing allowances--general.

    (a) Where the value of gas is determined pursuant to Sec. 1206.153 
of this subpart, a deduction shall be allowed for the reasonable actual 
costs of processing.
    (b) Processing costs must be allocated among the gas plant products. 
A separate processing allowance must be determined for each gas plant 
product

[[Page 782]]

and processing plant relationship. Natural gas liquids (NGL's) shall be 
considered as one product.
    (c)(1) Except as provided in paragraph (d)(2) of this section, the 
processing allowance shall not be applied against the value of the 
residue gas. Where there is no residue gas ONRR may designate an 
appropriate gas plant product against which no allowance may be applied.
    (2) Except as provided in paragraph (c)(3) of this section, the 
processing allowance deduction on the basis of an individual product 
shall not exceed 66\2/3\ percent of the value of each gas plant product 
determined in accordance with Sec. 1206.153 of this subpart (such value 
to be reduced first for any transportation allowances related to 
postprocessing transportation authorized by Sec. 1206.156 of this 
subpart).
    (3) Upon request of a lessee, ONRR may approve a processing 
allowance in excess of the limitation prescribed by paragraph (c)(2) of 
this section. The lessee must demonstrate that the processing costs 
incurred in excess of the limitation prescribed in paragraph (c)(2) of 
this section were reasonable, actual, and necessary. An application for 
exception (using Form MMS-4393, Request to Exceed Regulatory Allowance 
Limitation) shall contain all relevant and supporting documentation for 
ONRR to make a determination. Under no circumstances shall the value for 
royalty purposes of any gas plant product be reduced to zero.
    (d)(1) Except as provided in paragraph (d)(2) of this section, no 
processing cost deduction shall be allowed for the costs of placing 
lease products in marketable condition, including dehydration, 
separation, compression, or storage, even if those functions are 
performed off the lease or at a processing plant. Where gas is processed 
for the removal of acid gases, commonly referred to as ``sweetening,'' 
no processing cost deduction shall be allowed for such costs unless the 
acid gases removed are further processed into a gas plant product. In 
such event, the lessee shall be eligible for a processing allowance as 
determined in accordance with this subpart. However, ONRR will not grant 
any processing allowance for processing lease production which is not 
royalty bearing.
    (2)(i) If the lessee incurs extraordinary costs for processing gas 
production from a gas production operation, it may apply to ONRR for an 
allowance for those costs which shall be in addition to any other 
processing allowance to which the lessee is entitled pursuant to this 
section. Such an allowance may be granted only if the lessee can 
demonstrate that the costs are, by reference to standard industry 
conditions and practice, extraordinary, unusual, or unconventional.
    (ii) Prior ONRR approval to continue an extraordinary processing 
cost allowance is not required. However, to retain the authority to 
deduct the allowance the lessee must report the deduction to ONRR in a 
form and manner prescribed by ONRR.
    (e) If ONRR determines that a lessee has improperly determined a 
processing allowance authorized by this subpart, then the lessee must 
pay any additional royalties, plus interest determined under Sec. 
1218.54 of this chapter, or will be entitled to a credit with interest. 
If the lessee takes a deduction for processing on Form MMS-2014 by 
improperly netting the allowance against the sales value of the gas 
plant products instead of reporting the allowance as a separate entry, 
ONRR may assess a civil penalty under 30 CFR part 1241.

[53 FR 1272, Jan. 15, 1988, as amended at 61 FR 5466, Feb. 12, 1996; 64 
FR 43288, Aug. 10, 1999; 73 FR 15891, Mar. 26, 2008]



Sec. 1206.159  Determination of processing allowances.

    (a) Arm's-length processing contracts. (1)(i) For processing costs 
incurred by a lessee under an arm's-length contract, the processing 
allowance shall be the reasonable actual costs incurred by the lessee 
for processing the gas under that contract, except as provided in 
paragraphs (a)(1)(ii) and (a)(1)(iii) of this section, subject to 
monitoring, review, audit, and adjustment. The lessee shall have the 
burden of demonstrating that its contract is arm's-length. ONRR' prior 
approval is not required before a lessee may deduct costs incurred under 
an arm's-length contract. The lessee must claim a processing allowance 
by

[[Page 783]]

reporting it as a separate entry on the Form MMS-2014.
    (ii) In conducting reviews and audits, ONRR will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the processor for the 
processing. If the contract reflects more than the total consideration, 
then the ONRR may require that the processing allowance be determined in 
accordance with paragraph (b) of this section.
    (iii) If ONRR determines that the consideration paid pursuant to an 
arm's-length processing contract does not reflect the reasonable value 
of the processing because of misconduct by or between the contracting 
parties, or because the lessee otherwise has breached its duty to the 
lessor to market the production for the mutual benefit of the lessee and 
lessor, then ONRR shall require that the processing allowance be 
determined in accordance with paragraph (b) of this section. When ONRR 
determines that the value of the processing may be unreasonable, ONRR 
will notify the lessee and give the lessee an opportunity to provide 
written information justifying the lessee's processing costs.
    (2) If an arm's-length processing contract includes more than one 
gas plant product and the processing costs attributable to each product 
can be determined from the contract, then the processing costs for each 
gas plant product shall be determined in accordance with the contract. 
No allowance may be taken for the costs of processing lease production 
which is not royalty-bearing.
    (3) If an arm's-length processing contract includes more than one 
gas plant product and the processing costs attributable to each product 
cannot be determined from the contract, the lessee shall propose an 
allocation procedure to ONRR. The lessee may use its proposed allocation 
procedure until ONRR issues its determination. The lessee shall submit 
all relevant data to support its proposal. ONRR shall then determine the 
processing allowance based upon the lessee's proposal and any additional 
information ONRR deems necessary. No processing allowance will be 
granted for the costs of processing lease production which is not 
royalty bearing. The lessee must submit the allocation proposal within 3 
months of claiming the allocated deduction on Form MMS-2014.
    (4) Where the lessee's payments for processing under an arm's-length 
contract are not based on a dollar per unit basis, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent for 
the purposes of this section.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length processing contract or has no contract, including those 
situations where the lessee performs processing for itself, the 
processing allowance will be based upon the lessee's reasonable actual 
costs as provided in this paragraph. All processing allowances deducted 
under a non-arm's-length or no-contract situation are subject to 
monitoring, review, audit, and adjustment. The lessee must claim a 
processing allowance by reflecting it as a separate entry on the Form 
MMS-2014. When necessary or appropriate, ONRR may direct a lessee to 
modify its estimated or actual processing allowance.
    (2) The processing allowance for non-arm's-length or no-contract 
situations shall be based upon the lessee's actual costs for processing 
during the reporting period, including operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the initial 
depreciable investment in the processing plant multiplied by a rate of 
return in accordance with paragraph (b)(2)(iv)(B) of this section. 
Allowable capital costs are generally those costs for depreciable fixed 
assets (including costs of delivery and installation of capital 
equipment) which are an integral part of the processing plant.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
processing

[[Page 784]]

plant; maintenance of equipment; maintenance labor; and other directly 
allocable and attributable maintenance expenses which the lessee can 
document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the processing plant is an allowable expense. State 
and Federal income taxes and severance taxes, including royalties, are 
not allowable expenses.
    (iv) A lessee may use either depreciation or a return on depreciable 
capital investment. When a lessee has elected to use either method for a 
processing plant, the lessee may not later elect to change to the other 
alternative without approval of the ONRR.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the processing plant services, or a unit-
of-production method. After an election is made, the lessee may not 
change methods without ONRR approval. A change in ownership of a 
processing plant shall not alter the depreciation schedule established 
by the original processor/lessee for purposes of the allowance 
calculation. With or without a change in ownership, a processing plant 
shall be depreciated only once. Equipment shall not be depreciated below 
a reasonable salvage value.
    (B) The ONRR shall allow as a cost an amount equal to the allowable 
initial capital investment in the processing plant multiplied by the 
rate of return determined pursuant to paragraph (b)(2)(v) of this 
section. No allowance shall be provided for depreciation. This 
alternative shall apply only to plants first placed in service after 
March 1, 1988.
    (v) The rate of return must be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return must be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3) The processing allowance for each gas plant product shall be 
determined based on the lessee's reasonable and actual cost of 
processing the gas. Allocation of costs to each gas plant product shall 
be based upon generally accepted accounting principles. The lessee may 
not take an allowance for the costs of processing lease production which 
is not royalty bearing.
    (4) A lessee may apply to ONRR for an exception from the requirement 
that it compute actual costs in accordance with paragraphs (b)(1) 
through (b)(3) of this section. The ONRR may grant the exception only 
if: (i) The lessee has arm's-length contracts for processing other gas 
production at the same processing plant; and (ii) at least 50 percent of 
the gas processed annually at the plant is processed pursuant to arm's-
length processing contracts; if the ONRR grants the exception, the 
lessee shall use as its processing allowance the volume weighted average 
prices charged other persons pursuant to arm's-length contracts for 
processing at the same plant.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) The 
lessee must notify ONRR of an allowance based on incurred costs by using 
a separate entry on the Form MMS-2014.
    (ii) ONRR may require that a lessee submit arm's-length processing 
contracts and related documents. Documents shall be submitted within a 
reasonable time, as determined by ONRR.
    (2) Non-arm's-length or no contract. (i) The lessee must notify ONRR 
of an allowance based on the incurred costs by using a separate entry on 
the Form MMS-2014.
    (ii) For new processing plants, the lessee's initial deduction shall 
include estimates of the allowable gas processing costs for the 
applicable period. Cost estimates shall be based upon the most recently 
available operations data for the plant or, if such data are not 
available, the lessee shall use estimates based upon industry data for 
similar gas processing plants.
    (iii) Upon request by ONRR, the lessee shall submit all data used to 
prepare the allowance deduction. The data shall be provided within a 
reasonable period of time, as determined by ONRR.
    (iv) If the lessee is authorized to use the volume weighted average 
prices

[[Page 785]]

charged other persons as its processing allowance in accordance with 
paragraph (b)(4) of this section, it shall follow the reporting 
requirements of paragraph (c)(1) of this section.
    (d) Interest. (1) If a lessee deducts a processing allowance on its 
Form MMS-2014 that exceeds 66\2/3\ percent of the value of the gas 
processed without obtaining prior approval of ONRR under Sec. 1206.158, 
the lessee shall pay interest on the excess allowance amount taken from 
the date such amount is taken to the date the lessee files an exception 
request with ONRR.
    (2) If a lessee erroneously reports a processing allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with Sec. 1218.54 of this chapter.
    (e) Adjustments. (1) If the actual processing allowance is less than 
the amount the lessee has taken on Form MMS-2014 for each month during 
the allowance reporting period, the lessee shall pay additional 
royalties due plus interest computed under Sec. 1218.54 of this chapter 
from the allowance reporting period when the lessee took the deduction 
to the date the lessee repays the difference to ONRR. If the actual 
processing allowance is greater than the amount the lessee has taken on 
Form MMS-2014 for each month during the allowance reporting period, the 
lessee shall be entitled to a credit with interest.
    (2) For lessees processing production from onshore Federal leases, 
the lessee must submit a corrected Form MMS-2014 to reflect actual 
costs, together with any payment, in accordance with instructions 
provided by ONRR.
    (3) For lessees processing gas production from leases on the OCS, if 
the lessee's estimated processing allowance exceeds the allowance based 
on actual costs, the lessee must submit a corrected Form MMS-2014 to 
reflect actual costs, together with its payment, in accordance with 
instructions provided by ONRR. If the lessee's estimated costs were less 
than the actual costs, the refund procedure will be specified by ONRR.
    (f) Other processing cost determinations. The provisions of this 
section shall apply to determine processing costs when establishing 
value using a net back valuation procedure or any other procedure that 
requires deduction of processing costs.

[53 FR 1272, Jan. 15, 1988, as amended at 53 FR 45762, Nov. 14, 1988; 61 
FR 5466, Feb. 12, 1996; 64 FR 43288, Aug. 10, 1999; 73 FR 15891, Mar. 
26, 2008]



Sec. 1206.160  Operating allowances.

    Notwithstanding any other provisions in these regulations, an 
operating allowance may be used for the purpose of computing payment 
obligations when specified in the notice of sale and the lease. The 
allowance amount or formula shall be specified in the notice of sale and 
in the lease agreement.

[61 FR 3804, Feb. 2, 1996]



                          Subpart E_Indian Gas

    Source: 64 FR 43515, Aug. 10, 1999, unless otherwise noted.



Sec. 1206.170  What does this subpart contain?

    This subpart contains royalty valuation provisions applicable to 
Indian lessees.
    (a) This subpart applies to all gas production from Indian (tribal 
and allotted) oil and gas leases (except leases on the Osage Indian 
Reservation). The purpose of this subpart is to establish the value of 
production for royalty purposes consistent with the mineral leasing 
laws, other applicable laws, and lease terms. This subpart does not 
apply to Federal leases.
    (b) If the specific provisions of any Federal statute, treaty, 
negotiated agreement, settlement agreement resulting from any 
administrative or judicial proceeding, or Indian oil and gas lease are 
inconsistent with any regulation in this subpart, then the Federal 
statute, treaty, negotiated agreement, settlement agreement, or lease 
will govern to the extent of that inconsistency.
    (c) You may calculate the value of production for royalty purposes 
under methods other than those the regulations in this title require, 
but only if

[[Page 786]]

you, the tribal lessor, and ONRR jointly agree to the valuation 
methodology. For leases on Indian allotted lands, you and ONRR must 
agree to the valuation methodology.
    (d) All royalty payments you make to ONRR are subject to monitoring, 
review, audit, and adjustment.
    (e) The regulations in this subpart are intended to ensure that the 
trust responsibilities of the United States with respect to the 
administration of Indian oil and gas leases are discharged in accordance 
with the requirements of the governing mineral leasing laws, treaties, 
and lease terms.



Sec. 1206.171  What definitions apply to this subpart?

    The following definitions apply to this subpart and to subpart J of 
part 1202 of this title:
    Accounting for comparison means the same as dual accounting.
    Active spot market means a market where one or more ONRR-acceptable 
publications publish bidweek prices (or if bidweek prices are not 
available, first of the month prices) for at least one index-pricing 
point in the index zone.
    Allowance means a deduction in determining value for royalty 
purposes. Processing allowance means an allowance for the reasonable, 
actual costs of processing gas determined under this subpart. 
Transportation allowance means an allowance for the reasonable, actual 
cost of transportation determined under this subpart.
    Approved Federal Agreement (AFA) means a unit or communitization 
agreement approved under departmental regulations.
    Area means a geographic region at least as large as the defined 
limits of an oil or gas field, in which oil or gas lease products have 
similar quality, economic, or legal characteristics. An area may be all 
lands within the boundaries of an Indian reservation.
    Arm's-length contract means a contract or agreement that has been 
arrived at in the marketplace between independent, nonaffiliated persons 
with opposing economic interests regarding that contract. For purposes 
of this subpart, two persons are affiliated if one person controls, is 
controlled by, or is under common control with another person. The 
following percentages (based on the instruments of ownership of the 
voting securities of an entity, or based on other forms of ownership) 
determine if persons are affiliated:
    (1) Ownership in excess of 50 percent constitutes control.
    (2) Ownership of 10 through 50 percent creates a presumption of 
control.
    (3) Ownership of less than 10 percent creates a presumption of 
noncontrol which ONRR may rebut if it demonstrates actual or legal 
control, including the existence of interlocking directorates. 
Notwithstanding any other provisions of this subpart, contracts between 
relatives, either by blood or by marriage, are not arm's-length 
contracts. ONRR may require the lessee to certify the percentage of 
ownership or control of the entity. To be considered arm's-length for 
any production month, a contract must meet the requirements of this 
definition for that production month as well as when the contract was 
executed.
    Audit means a review, conducted under generally accepted accounting 
and auditing standards, of royalty payment compliance activities of 
lessees or other persons who pay royalties, rents, or bonuses on Indian 
leases.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Compression means raising the pressure of gas.
    Condensate means liquid hydrocarbons (normally exceeding 40 degrees 
of API gravity) recovered at the surface without resorting to 
processing. Condensate is the mixture of liquid hydrocarbons that 
results from condensation of petroleum hydrocarbons existing initially 
in a gaseous phase in an underground reservoir.
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Dedicated means a contractual commitment to deliver gas production 
(or a specified portion of production) from a lease or well when that 
production is

[[Page 787]]

specified in a sales contract and that production must be sold pursuant 
to that contract to the extent that production occurs from that lease or 
well.
    Drip condensate means any condensate recovered downstream of the 
facility measurement point without resorting to processing. Drip 
condensate includes condensate recovered as a result of its becoming a 
liquid during the transportation of the gas removed from the lease or 
recovered at the inlet of a gas processing plant by mechanical means, 
often referred to as scrubber condensate.
    Dual Accounting (or accounting for comparison) refers to the 
requirement to pay royalty based on a value which is the higher of the 
value of gas prior to processing less any applicable allowances as 
compared to the combined value of drip condensate, residue gas, and gas 
plant products after processing, less applicable allowances.
    Entitlement (or entitled share) means the gas production from a 
lease, or allocable to lease acreage under the terms of an AFA, 
multiplied by the operating rights owner's percentage of interest 
ownership in the lease or the acreage.
    Facility measurement point (or point of royalty settlement) means 
the point where the BLM-approved measurement device is located for 
determining the volume of gas removed from the lease. The facility 
measurement point may be on the lease or off-lease with BLM approval.
    Field means a geographic region situated over one or more subsurface 
oil and gas reservoirs encompassing at least the outermost boundaries of 
all oil and gas accumulations known to be within those reservoirs 
vertically projected to the land surface. Onshore fields are usually 
given names and their official boundaries are often designated by oil 
and gas regulatory agencies in the respective States in which the fields 
are located.
    Gas means any fluid, either combustible or noncombustible, 
hydrocarbon or nonhydrocarbon, which is extracted from a reservoir and 
which has neither independent shape nor volume, but tends to expand 
indefinitely. It is a substance that exists in a gaseous or rarefied 
state under standard temperature and pressure conditions.
    Gas plant products means separate marketable elements, compounds, or 
mixtures, whether in liquid, gaseous, or solid form, resulting from 
processing gas. However, it does not include residue gas.
    Gathering means the movement of lease production to a central 
accumulation or treatment point on the lease, unit, or communitized 
area; or a central accumulation or treatment point off the lease, unit, 
or communitized area as approved by BLM operations personnel.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to an oil and gas lessee for the 
disposition of unprocessed gas, residue gas, and gas plant products 
produced. Gross proceeds includes, but is not limited to, payments to 
the lessee for certain services such as compression, dehydration, 
measurement, or field gathering to the extent that the lessee is 
obligated to perform them at no cost to the Indian lessor, and payments 
for gas processing rights. Gross proceeds, as applied to gas, also 
includes but is not limited to reimbursements for severance taxes and 
other reimbursements. Tax reimbursements are part of the gross proceeds 
accruing to a lessee even though the Indian royalty interest is exempt 
from taxation. Monies and other consideration, including the forms of 
consideration identified in this paragraph, to which a lessee is 
contractually or legally entitled but which it does not seek to collect 
through reasonable efforts are also part of gross proceeds.
    Index means the calculated composite price ($/MMBtu) of spot-market 
sales published by a publication that meets ONRR-established criteria 
for acceptability at the index-pricing point.
    Index-pricing point (IPP) means any point on a pipeline for which 
there is an index.
    Index zone means a field or an area with an active spot market and 
published indices applicable to that field or area that are acceptable 
to ONRR under Sec. 1206.172(d)(2).
    Indian allottee means any Indian for whom land or an interest in 
land is

[[Page 788]]

held in trust by the United States or who holds title subject to Federal 
restriction against alienation.
    Indian tribe means any Indian tribe, band, nation, pueblo, 
community, rancheria, colony, or other group of Indians for which any 
land or interest in land is held in trust by the United States or which 
is subject to Federal restriction against alienation.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States under a 
mineral leasing law that authorizes exploration for, development or 
extraction of, or removal of lease products--or the land area covered by 
that authorization, whichever is required by the context. For purposes 
of this subpart, this definition excludes Federal leases.
    Lease products means any leased minerals attributable to, 
originating from, or allocated to a lease.
    Lessee means any person to whom the United States, a tribe, and/or 
individual Indian landowner issues a lease, and any person who has been 
assigned an obligation to make royalty or other payments required by the 
lease. This includes any person who has an interest in a lease 
(including operating rights owners) as well as an operator or payor who 
has no interest in the lease but who has assumed the royalty payment 
responsibility.
    Like-quality lease products means lease products which have similar 
chemical, physical, and legal characteristics.
    Marketable condition means a condition in which lease products are 
sufficiently free from impurities and otherwise so conditioned that a 
purchaser will accept them under a sales contract typical for the field 
or area.
    Minimum royalty means that minimum amount of annual royalty that the 
lessee must pay as specified in the lease or in applicable leasing 
regulations.
    Natural gas liquids (NGL's) means those gas plant products 
consisting of ethane, propane, butane, or heavier liquid hydrocarbons.
    Net-back method (or work-back method) means a method for calculating 
market value of gas at the lease under which costs of transportation, 
processing, and manufacturing are deducted from the proceeds received 
for, or the value of, the gas, residue gas, or gas plant products, and 
any extracted, processed, or manufactured products, at the first point 
at which reasonable values for any such products may be determined by a 
sale under an arm's-length contract or comparison to other sales of such 
products.
    Net output means the quantity of residue gas and each gas plant 
product that a processing plant produces.
    Net profit share means the specified share of the net profit from 
production of oil and gas as provided in the agreement.
    ONRR means the Office of Natural Resources Revenue, Department of 
the Interior. ONRR includes, where appropriate, tribal auditors acting 
under agreements under the Federal Oil and Gas Royalty Management Act of 
1982, 30 U.S.C. 1701 et seq. or other applicable agreements.
    Operating rights owner (or working interest owner) means any person 
who owns operating rights in a lease subject to this subpart. A record 
title owner is the owner of operating rights under a lease except to the 
extent that the operating rights or a portion thereof have been 
transferred from record title (see BLM regulations at 43 CFR 3100.0-
5(d)).
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Point of royalty measurement means the same as facility measurement 
point.
    Processing means any process designed to remove elements or 
compounds (hydrocarbon and nonhydrocarbon) from gas, including 
absorption, adsorption, or refrigeration. Field processes which normally 
take place on or near the lease, such as natural pressure reduction, 
mechanical separation, heating, cooling, dehydration, desulphurization 
(or ``sweetening''), and compression, are not considered processing. The 
changing of pressures and/or temperatures in a reservoir is not 
considered processing.
    Residue gas means that hydrocarbon gas consisting principally of 
methane resulting from processing gas.

[[Page 789]]

    Sales type code means the contract type or general disposition 
(e.g., arm's-length or non-arm's-length) of production from the lease. 
The sales type code applies to the sales contract, or other disposition, 
and not to the arm's-length or non-arm's-length nature of a 
transportation or processing allowance.
    Spot sales agreement means a contract wherein a seller agrees to 
sell to a buyer a specified amount of unprocessed gas, residue gas, or 
gas plant products at a specified price over a fixed period, usually of 
short duration. It also does not normally require a cancellation notice 
to terminate, and does not contain an obligation, or imply an intent, to 
continue in subsequent periods.
    Takes means when the operating rights owner sells or removes 
production from, or allocated to, the lease, or when such sale or 
removal occurs for the benefit of an operating rights owner.
    Work-back method means the same as net-back method.

[64 FR 43515, Aug. 10, 1999, as amended at 73 FR 15891, Mar. 26, 2008]



Sec. 1206.172  How do I value gas produced from leases in an index zone?

    (a) What leases this section applies to. This section explains how 
lessees must value, for royalty purposes, gas produced from Indian 
leases located in an index zone. For other leases, value must be 
determined under Sec. 1206.174.
    (1) You must use the valuation provision of this section if your 
lease is in an index zone and meets one of the following two 
requirements:
    (i) Has a major portion provision;
    (ii) Does not have a major portion provision, but provides for the 
Secretary to determine the value of production.
    (2) This section does not apply to carbon dioxide, nitrogen, or 
other non-hydrocarbon components of the gas stream. However, if they are 
recovered and sold separately from the gas stream, you must determine 
the value of these products under Sec. 1206.174.
    (b) Valuing residue gas and gas before processing. (1) Except as 
provided in paragraphs (e), (f), and (g) of this section, this paragraph 
(b) explains how you must value the following four types of gas:
    (i) Gas production before processing;
    (ii) Gas production that you certify on Form MMS-4410, Certification 
for Not Performing Accounting for Comparison (Dual Accounting), is not 
processed before it flows into a pipeline with an index but which may be 
processed later;
    (iii) Residue gas after processing; and
    (iv) Gas that is never processed.
    (2) The value of gas production that is not sold under an arm's-
length dedicated contract is the index-based value determined under 
paragraph (d) of this section unless the gas was subject to a previous 
contract which was part of a gas contract settlement. If the previous 
contract was subject to a gas contract settlement and if the royalty-
bearing contract settlement proceeds per MMBtu added to the 80 percent 
of the safety net prices calculated at Sec. 1206.172(e)(4)(i) exceeds 
the index-based value that applies to the gas under this section 
(including any adjustments required under Sec. 1206.176), then the 
value of the gas is the higher of the value determined under this 
section (including any adjustments required under Sec. 1206.176) or 
Sec. 1206.174.
    (3) The value of gas production that is sold under an arm's-length 
dedicated contract is the higher of the index-based value under 
paragraph (d) of this section or the value of that production determined 
under Sec. 1206.174(b).
    (c) Valuing gas that is processed before it flows into a pipeline 
with an index. Except as provided in paragraphs (e), (f), and (g) of 
this section, this paragraph (c) explains how you must value gas that is 
processed before it flows into a pipeline with an index. You must value 
this gas production based on the higher of the following two values:
    (1) The value of the gas before processing determined under 
paragraph (b) of this section.
    (2) The value of the gas after processing, which is either the 
alternative dual accounting value under Sec. 1206.173 or the sum of the 
following three values:
    (i) The value of the residue gas determined under paragraph (b)(2) 
or (3) of this section, as applicable;

[[Page 790]]

    (ii) The value of the gas plant products determined under Sec. 
1206.174, less any applicable processing and/or transportation 
allowances determined under this subpart; and
    (iii) The value of any drip condensate associated with the processed 
gas determined under subpart B of this part.
    (d) Determining the index-based value for gas production. (1) To 
determine the index-based value per MMBtu for production from a lease in 
an index zone, you must use the following procedures:
    (i) For each ONRR-approved publication, calculate the average of the 
highest reported prices for all index-pricing points in the index zone, 
except for any prices excluded under paragraph (d)(6) of this section;
    (ii) Sum the averages calculated in paragraph (d)(1)(i) of this 
section and divide by the number of publications; and
    (iii) Reduce the number calculated under paragraph (d)(1)(ii) of 
this section by 10 percent, but not by less than 10 cents per MMBtu or 
more than 30 cents per MMBtu. The result is the index-based value per 
MMBtu for production from all leases in that index zone.
    (2) ONRR will publish in the Federal Register the index zones that 
are eligible for the index-based valuation method under this paragraph. 
ONRR will monitor the market activity in the index zones and, if 
necessary, hold a technical conference to add or modify a particular 
index zone. Any change to the index zones will be published in the 
Federal Register. ONRR will consider the following five factors and 
conditions in determining eligible index zones:
    (i) Areas for which ONRR-approved publications establish index 
prices that accurately reflect the value of production in the field or 
area where the production occurs;
    (ii) Common markets served;
    (iii) Common pipeline systems;
    (iv) Simplification; and
    (v) Easy identification in ONRR's systems, such as counties or 
Indian reservations.
    (3) If market conditions change so that an index-based method for 
determining value is no longer appropriate for an index zone, ONRR will 
hold a technical conference to consider disqualification of an index 
zone. ONRR will publish notice in the Federal Register if an index zone 
is disqualified. If an index zone is disqualified, then production from 
leases in that index zone cannot be valued under this paragraph.
    (4) ONRR periodically will publish in the Federal Register a list of 
acceptable publications based on certain criteria, including, but not 
limited to the following five criteria:
    (i) Publications buyers and sellers frequently use;
    (ii) Publications frequently referenced in purchase or sales 
contracts;
    (iii) Publications that use adequate survey techniques, including 
the gathering of information from a substantial number of sales;
    (iv) Publications that publish the range of reported prices they use 
to calculate their index; and
    (v) Publications independent from DOI, lessors, and lessees.
    (5) Any publication may petition ONRR to be added to the list of 
acceptable publications.
    (6) ONRR may exclude an individual index price for an index zone in 
an ONRR-approved publication if ONRR determines that the index price 
does not accurately reflect the value of production in that index zone. 
ONRR will publish a list of excluded indices in the Federal Register.
    (7) ONRR will reference which tables in the publications you must 
use for determining the associated index prices.
    (8) The index-based values determined under this paragraph are not 
subject to deductions for transportation or processing allowances 
determined under Sec. Sec. 1206.177, 1206.178, 1206.179, and 1206.180.
    (e) Determining the minimum value for royalty purposes of gas sold 
beyond the first index pricing point. (1) Notwithstanding any other 
provision of this section, the value for royalty purposes of gas 
production from an Indian lease that is sold beyond the first index 
pricing point through which it flows cannot be less than the value 
determined under this paragraph (e).
    (2) By June 30 following any calendar year, you must calculate for 
each

[[Page 791]]

month of that calendar year your safety net price per MMBtu using the 
procedures in paragraph (e)(3) of this section. You must calculate a 
safety net price for each month and for each index zone where you have 
an Indian lease for which you report and pay royalties.
    (3) Your safety net price (S) for an index zone is the volume-
weighted average contract price per delivered MMBtu under your or your 
affiliate's arm's-length contracts for the disposition of residue gas or 
unprocessed gas produced from your Indian leases in that index zone as 
computed under this paragraph (e)(3).
    (i) Include in your calculation only sales under those contracts 
that establish a delivery point beyond the first index pricing point 
through which the gas flows, and that include any gas produced from or 
allocable to one or more of your Indian leases in that index zone, even 
if the contract also includes gas produced from Federal, State, or fee 
properties. Include in your volume-weighted average calculation those 
volumes that are allocable to your Indian leases in that index zone.
    (ii) Do not reduce the contract price for any transportation costs 
incurred to deliver the gas to the purchaser.
    (iii) For purposes of this paragraph (e), the contract price will 
not include the following amounts:
    (A) Any amounts you receive in compromise or settlement of a 
predecessor contract for that gas;
    (B) Deductions for you or any other person to put gas production 
into marketable condition or to market the gas; and
    (C) Any amounts related to marketable securities associated with the 
sales contract.
    (4) Next, you must determine for each month the safety net 
differential (SND). You must perform this calculation separately for 
each index zone.
    (i) For each index zone, the safety net differential is equal to: 
SND = [(0.80 x S) - (1.25 x I)] where (I) is the index-based value 
determined under 30 CFR 206.172(d).
    (ii) If the safety net differential is positive you owe additional 
royalties.
    (5)(i) To calculate the additional royalties you owe, make the 
following calculation for each of your Indian leases in that index zone 
that produced gas that was sold beyond the first index-pricing point 
through which the gas flowed and that was used in the calculation in 
paragraph (e)(3) of this section:

    Lease royalties owed = SND x V x R, where R = the lease royalty rate 
and V = the volume allocable to the lease which produced gas that was 
sold beyond the first index pricing point.

    (ii) If gas produced from any of your Indian leases is commingled or 
pooled with gas produced from non-Indian properties, and if any of the 
combined gas is sold at a delivery point beyond the first index pricing 
point through which the gas flows, then the volume allocable to each 
Indian lease for which gas was sold beyond the first index pricing point 
in the calculation under paragraph (e)(5)(i) of this section is the 
volume produced from the lease multiplied by the proportion that the 
total volume of gas sold beyond the first index pricing point bears to 
the total volume of gas commingled or pooled from all properties.
    (iii) Add the numbers calculated for each lease under paragraph 
(e)(5)(i) of this section. The total is the additional royalty you owe.
    (6) You have the following responsibilities to comply with the 
minimum value for royalty purposes:
    (i) You must report the safety net price for each index zone to ONRR 
on Form MMS-4411, Safety Net Report, no later than June 30 following 
each calendar year;
    (ii) You must pay and report on Form MMS-2014 additional royalties 
due no later than June 30 following each calendar year; and
    (iii) ONRR may order you to amend your safety net price within one 
year from the date your Form MMS-4411 is due or is filed, whichever is 
later. If ONRR does not order any amendments within that one-year 
period, your safety net price calculation is final.
    (f) Excluding some or all tribal leases from valuation under this 
section. (1) An Indian tribe may ask ONRR to exclude some or all of its 
leases from valuation under this section. ONRR will consult with BIA 
regarding the request.

[[Page 792]]

    (i) If ONRR approves the request for your lease, you must value your 
production under Sec. 1206.174 beginning with production on the first 
day of the second month following the date ONRR publishes notice of its 
decision in the Federal Register.
    (ii) If an Indian tribe requests exclusion from an index zone for 
less than all of its leases, ONRR will approve the request only if the 
excluded leases may be segregated into one or more groups based on 
separate fields within the reservation.
    (2) An Indian tribe may ask ONRR to terminate exclusion of its 
leases from valuation under this section. ONRR will consult with BIA 
regarding the request.
    (i) If ONRR approves the request, you must value your production 
under Sec. 1206.172 beginning with production on the first day of the 
second month following the date ONRR publishes notice of its decision in 
the Federal Register.
    (ii) Termination of an exclusion under paragraph (f)(2)(i) of this 
section cannot take effect earlier than 1 year after the first day of 
the production month that the exclusion was effective.
    (3) The Indian tribe's request to ONRR under either paragraph (f)(1) 
or (2) of this section must be in the form of a tribal resolution.
    (g) Excluding Indian allotted leases from valuation under this 
section. (1)(i) ONRR may exclude any Indian allotted leases from 
valuation under this section. ONRR will consult with BIA regarding the 
exclusion.
    (ii) If ONRR excludes your lease, you must value your production 
under Sec. 1206.174 beginning with production on the first day of the 
second month following the date ONRR publishes notice of its decision in 
the Federal Register.
    (iii) If ONRR excludes any Indian allotted leases under this 
paragraph (g)(1), it will exclude all Indian allotted leases in the same 
field.
    (2)(i) ONRR may terminate the exclusion of any Indian allotted 
leases from valuation under this section. ONRR will consult with BIA 
regarding the termination.
    (ii) If ONRR terminates the exclusion, you must value your 
production under Sec. 1206.172 beginning with production on the first 
day of the second month following the date ONRR publishes notice of its 
decision in the Federal Register.



Sec. 1206.173  How do I calculate the alternative methodology for dual 

accounting?

    (a) Electing a dual accounting method. (1) If you are required to 
perform the accounting for comparison (dual accounting) under Sec. 
1206.176, you have two choices. You may elect to perform the dual 
accounting calculation according to either Sec. 1206.176(a) (called 
actual dual accounting), or paragraph (b) of this section (called the 
alternative methodology for dual accounting).
    (2) You must make a separate election to use the alternative 
methodology for dual accounting for your Indian leases in each ONRR-
designated area. Your election for a designated area must apply to all 
of your Indian leases in that area.
    (i) ONRR will publish in the Federal Register a list of the lease 
prefixes that will be associated with each designated area for purposes 
of this section. The ONRR-designated areas are as follows:
    (A) Alabama-Coushatta;
    (B) Blackfeet Reservation;
    (C) Crow Reservation;
    (D) Fort Belknap Reservation;
    (E) Fort Berthold Reservation;
    (F) Fort Peck Reservation;
    (G) Jicarilla Apache Reservation;
    (H) ONRR-designated groups of counties in the State of Oklahoma;
    (I) Navajo Reservation;
    (J) Northern Cheyenne Reservation;
    (K) Rocky Boys Reservation;
    (L) Southern Ute Reservation;
    (M) Turtle Mountain Reservation;
    (N) Ute Mountain Ute Reservation;
    (O) Uintah and Ouray Reservation;
    (P) Wind River Reservation; and
    (Q) Any other area that ONRR designates. ONRR will publish a new 
area designation in the Federal Register.
    (ii) You may elect to begin using the alternative methodology for 
dual accounting at the beginning of any month. The first election to use 
the alternative methodology will be effective from the time of election 
through the end of the following calendar year.

[[Page 793]]

Thereafter, each election to use the alternative methodology must remain 
in effect for 2 calendar years. You may return to the actual dual 
accounting method only at the beginning of the next election period or 
with the written approval of ONRR and the tribal lessor for tribal 
leases, and ONRR for Indian allottee leases in the designated area.
    (iii) When you elect to use the alternative methodology for a 
designated area, you must also use the alternative methodology for any 
new wells commenced and any new leases acquired in the designated area 
during the term of the election.
    (b) Calculating value using the alternative methodology for dual 
accounting. (1) The alternative methodology adjusts the value of gas 
before processing determined under either Sec. 1206.172 or Sec. 
1206.174 to provide the value of the gas after processing. You must use 
the value of the gas after processing for royalty payment purposes. The 
amount of the increase depends on your relationship with the owner(s) of 
the plant where the gas is processed. If you have no direct or indirect 
ownership interest in the processing plant, then the increase is lower, 
as provided in the table in paragraph (b)(2)(ii) of this section. If you 
have a direct or indirect ownership interest in the plant where the gas 
is processed, the increase is higher, as provided in paragraph 
(b)(2)(ii) of this section.
    (2) To calculate the value of the gas after processing using the 
alternative methodology for dual accounting, you must apply the increase 
to the value before processing, determined in either Sec. 1206.172 or 
Sec. 1206.174, as follows:
    (i) Value of gas after processing = (value determined under either 
Sec. 1206.172 or Sec. 1206.174, as applicable) x (1 + increment for 
dual accounting); and
    (ii) In this equation, the increment for dual accounting is the 
number you take from the applicable Btu range, determined under 
paragraph (b)(3) of this section, in the following table:

------------------------------------------------------------------------
                                                 Increment    Increment
                                                 if Lessee    if lessee
                                                   has no       has an
                   BTU range                     ownership    ownership
                                                interest in  interest in
                                                   plant        plant
------------------------------------------------------------------------
1001 to 1050..................................        .0275        .0375
1051 to 1100..................................        .0400        .0625
1101 to 1150..................................        .0425        .0750
1151 to 1200..................................        .0700        .1225
1201 to 1250..................................        .0975        .1700
1251 to 1300..................................        .1175        .2050
1301 to 1350..................................        .1400        .2400
1351 to 1400..................................        .1450        .2500
1401 to 1450..................................        .1500        .2600
1451 to 1500..................................        .1550        .2700
1501 to 1550..................................        .1600        .2800
1551 to 1600..................................        .1650        .2900
1601 to 1650..................................        .1850        .3225
1651 to 1700..................................        .1950        .3425
1701+.........................................        .2000        .3550
------------------------------------------------------------------------

    (3) The applicable Btu for purposes of this section is the volume 
weighted-average Btu for the lease computed from measurements at the 
facility measurement point(s) for gas production from the lease.
    (4) If any of your gas from the lease is processed during a month, 
use the following two paragraphs to determine which amounts are subject 
to dual accounting and which dual accounting method you must use.
    (i) Weighted-average Btu content determined under paragraph (b)(3) 
of this section is greater than 1,000 Btu's per cubic foot (Btu/cf). All 
gas production from the lease is subject to dual accounting and you must 
use the alternative method for all that gas production if you elected to 
use the alternative method under this section.
    (ii) Weighted-average Btu content determined under paragraph (b)(3) 
of this section is less than or equal to 1,000 Btu/cf. Only the volumes 
of lease production measured at facility measurement points whose 
quality exceeds 1,000 Btu/cf are subject to dual accounting, and you may 
use the alternative methodology for these volumes. For gas measured at 
facility measurement points for these leases where the quality is equal 
to or less than 1,000 Btu/cf, you are not required to do dual 
accounting.



Sec. 1206.174  How do I value gas production when an index-based method cannot 

be used?

    (a) Situations in which an index-based method cannot be used. (1) 
Gas production must be valued under this section in the following 
situations.

[[Page 794]]

    (i) Your lease is not in an index zone (or ONRR has excluded your 
lease from an index zone).
    (ii) If your lease is in an index zone and you sell your gas under 
an arm's-length dedicated contract, then the value of your gas is the 
higher of the value received under the dedicated contract determined 
under Sec. 1206.174(b) or the value under Sec. 1206.172.
    (iii) Also use this section to value any other gas production that 
cannot be valued under Sec. 1206.172, as well as gas plant products, 
and to value components of the gas stream that have no Btu value (for 
example, carbon dioxide, nitrogen, etc.).
    (2) The value for royalty purposes of gas production subject to this 
subpart is the value of gas determined under this section less 
applicable allowances determined under this subpart.
    (3) You must determine the value of gas production that is processed 
and is subject to accounting for comparison using the procedure in Sec. 
1206.176.
    (4) This paragraph applies if your lease has a major portion 
provision. It also applies if your lease does not have a major portion 
provision but the lease provides for the Secretary to determine value.
    (i) The value of production you must initially report and pay is the 
value determined in accordance with the other paragraphs of this 
section.
    (ii) ONRR will determine the major portion value and notify you in 
the Federal Register of that value. The value of production for royalty 
purposes for your lease is the higher of either the value determined 
under this section which you initially used to report and pay royalties, 
or the major portion value calculated under this paragraph (a)(4). If 
the major portion value is higher, you must submit an amended Form MMS-
2014 to ONRR by the due date specified in the written notice from ONRR 
of the major portion value. Late-payment interest under Sec. 1218.54 of 
this chapter on any underpayment will not begin to accrue until the date 
the amended Form MMS-2014 is due to ONRR.
    (iii) Except as provided in paragraph (a)(4)(iv) of this section, 
ONRR will calculate the major portion value for each designated area 
(which are the same designated areas as under Sec. 1206.173) using 
values reported for unprocessed gas and residue gas on Form MMS-2014 for 
gas produced from leases on that Indian reservation or other designated 
area. ONRR will array the reported prices from highest to lowest price. 
The major portion value is that price at which 25 percent (by volume) of 
the gas (starting from the highest) is sold. ONRR cannot unilaterally 
change the major portion value after you are notified in writing of what 
that value is for your leases.
    (iv) ONRR may calculate the major portion value using different data 
than the data described in paragraph (a)(4)(iii) of this section or data 
to augment the data described in paragraph (a)(4)(iii) of this section. 
This may include price data reported to the State tax authority or price 
data from leases ONRR has reviewed in the designated area. ONRR may use 
this alternate or the augmented data source beginning with production on 
the first day of the month following the date ONRR publishes notice in 
the Federal Register that it is calculating the major portion using a 
method in this paragraph (a)(4)(iv) of this section.
    (b) Arm's-length contracts. (1) The value of gas, residue gas, or 
any gas plant product you sell under an arm's-length contract is the 
gross proceeds accruing to you or your affiliate, except as provided in 
paragraphs (b)(1)(ii)-(iv) of this section.
    (i) You have the burden of demonstrating that your contract is 
arm's-length.
    (ii) In conducting reviews and audits for gas valued based upon 
gross proceeds under this paragraph, ONRR will examine whether or not 
your contract reflects the total consideration actually transferred 
either directly or indirectly from the buyer to you or your affiliate 
for the gas, residue gas, or gas plant product. If the contract does not 
reflect the total consideration, then ONRR may require that the gas, 
residue gas, or gas plant product sold under that contract be valued in 
accordance with paragraph (c) of this section. Value may not be less 
than the gross proceeds accruing to you or your affiliate, including the 
additional consideration.

[[Page 795]]

    (iii) If ONRR determines for gas valued under this paragraph that 
the gross proceeds accruing to you or your affiliate under an arm's-
length contract do not reflect the value of the gas, residue gas, or gas 
plant products because of misconduct by or between the contracting 
parties, or because you otherwise have breached your duty to the lessor 
to market the production for the mutual benefit of you and the lessor, 
then ONRR will require that the gas, residue gas, or gas plant product 
be valued under paragraphs (c)(2) or (3) of this section. In these 
circumstances, ONRR will notify you and give you an opportunity to 
provide written information justifying your value.
    (iv) This paragraph applies to situations where a pipeline purchases 
gas from a lessee according to a cash-out program under a transportation 
contract. For all over-delivered volumes, the royalty value is the price 
the pipeline is required to pay for volumes within the tolerances for 
over-delivery specified in the transportation contract. Use the same 
value for volumes that exceed the over-delivery tolerances even if those 
volumes are subject to a lower price specified in the transportation 
contract. However, if ONRR determines that the price specified in the 
transportation contract for over-delivered volumes is unreasonably low, 
the lessees must value all over-delivered volumes under paragraph (c)(2) 
or (3) of this section.
    (2) ONRR may require you to certify that your arm's-length contract 
provisions include all of the consideration the buyer pays, either 
directly or indirectly, for the gas, residue gas, or gas plant product.
    (c) Non-arm's-length contracts. If your gas, residue gas, or any gas 
plant product is not sold under an arm's-length contract, then you must 
value the production using the first applicable method of the following 
three methods:
    (1) The gross proceeds accruing to you under your non-arm's-length 
contract sale (or other disposition other than by an arm's-length 
contract), provided that those gross proceeds are equivalent to the 
gross proceeds derived from, or paid under, comparable arm's-length 
contracts for purchases, sales, or other dispositions of like-quality 
gas in the same field (or, if necessary to obtain a reasonable sample, 
from the same area). For residue gas or gas plant products, the 
comparable arm's-length contracts must be for gas from the same 
processing plant (or, if necessary to obtain a reasonable sample, from 
nearby plants). In evaluating the comparability of arm's-length 
contracts for the purposes of these regulations, the following factors 
will be considered: price, time of execution, duration, market or 
markets served, terms, quality of gas, residue gas, or gas plant 
products, volume, and such other factors as may be appropriate to 
reflect the value of the gas, residue gas, or gas plant products.
    (2) A value determined by consideration of other information 
relevant in valuing like-quality gas, residue gas, or gas plant 
products, including gross proceeds under arm's-length contracts for 
like-quality gas in the same field or nearby fields or areas, or for 
residue gas or gas plant products from the same gas plant or other 
nearby processing plants. Other factors to consider include prices 
received in spot sales of gas, residue gas or gas plant products, other 
reliable public sources of price or market information, and other 
information as to the particular lease operation or the salability of 
such gas, residue gas, or gas plant products.
    (3) A net-back method or any other reasonable method to determine 
value.
    (d) Supporting data. If you determine the value of production under 
paragraph (c) of this section, you must retain all data relevant to the 
determination of royalty value.
    (1) Such data will be subject to review and audit, and ONRR will 
direct you to use a different value if we determine upon review or audit 
that the value you reported is inconsistent with the requirements of 
these regulations.
    (2) You must make all such data available upon request to the 
authorized ONRR or Indian representatives, to the Office of the 
Inspector General of the Department, or other authorized persons. This 
includes your arm's-length sales and volume data for like-quality gas, 
residue gas, and gas plant products that are sold, purchased, or 
otherwise obtained from the same processing plant or from nearby 
processing

[[Page 796]]

plants, or from the same or nearby field or area.
    (e) Improper values. If ONRR determines that you have not properly 
determined value, you must pay the difference, if any, between royalty 
payments made based upon the value you used and the royalty payments 
that are due based upon the value ONRR established. You also must pay 
interest computed on that difference under Sec. 1218.54 of this 
chapter. If you are entitled to a credit, ONRR will provide instructions 
on how to take that credit.
    (f) Value guidance. You may ask ONRR for guidance in determining 
value. You may propose a valuation method to ONRR. Submit all available 
data related to your proposal and any additional information ONRR deems 
necessary. ONRR will promptly review your proposal and provide you with 
a non-binding determination of the guidance you request.
    (g) Minimum value of production. (1) For gas, residue gas, and gas 
plant products valued under this section, under no circumstances may the 
value of production for royalty purposes be less than the gross proceeds 
accruing to the lessee (including its affiliates) for gas, residue gas 
and/or any gas plant products, less applicable transportation allowances 
and processing allowances determined under this subpart.
    (2) For gas plant products valued under this section and not valued 
under Sec. 1206.173, the alternative methodology for dual accounting, 
the minimum value of production for each gas plant product is as 
follows:
    (i) Leases in certain States and areas have specific minimum values.
    (A) For production from leases in Colorado in the San Juan Basin, 
New Mexico, and Texas, the monthly average minimum price reported in 
commercial price bulletins for the gas plant product at Mont Belvieu, 
Texas, minus 8.0 cents per gallon.
    (B) For production in Arizona, in Colorado outside the San Juan 
Basin, Minnesota, Montana, North Dakota, Oklahoma, South Dakota, Utah, 
and Wyoming, the monthly average minimum price reported in commercial 
price bulletins for the gas plant product at Conway, Kansas, minus 7.0 
cents per gallon;
    (ii) You may use any commercial price bulletin, but you must use the 
same bulletin for all of the calendar year. If the commercial price 
bulletin you are using stops publication, you may use a different 
commercial price bulletin for the remaining part of the calendar year; 
and (iii) If you use a commercial price bulletin that is published 
monthly, the monthly average minimum price is the bulletin's minimum 
price. If you use a commercial price bulletin that is published weekly, 
the monthly average minimum price is the arithmetic average of the 
bulletin's weekly minimum prices. If you use a commercial price bulletin 
that is published daily, the monthly average minimum price is the 
arithmetic average of the bulletin's minimum prices for each Wednesday 
in the month.
    (h) Marketable condition/Marketing. You are required to place gas, 
residue gas, and gas plant products in marketable condition and market 
the gas for the mutual benefit of the lessee and the lessor at no cost 
to the Indian lessor. When your gross proceeds establish the value under 
this section, that value must be increased to the extent that the gross 
proceeds have been reduced because the purchaser, or any other person, 
is providing certain services to place the gas, residue gas, or gas 
plant products in marketable condition or to market the gas, the cost of 
which ordinarily is your responsibility.
    (i) Highest obtainable price or benefit. For gas, residue gas, and 
gas plant products valued under this section, value must be based on the 
highest price a prudent lessee can receive through legally enforceable 
claims under its contract. Absent contract revision or amendment, if you 
fail to take proper or timely action to receive prices or benefits to 
which you are entitled, you must pay royalty at a value based upon that 
obtainable price or benefit. Contract revisions or amendments must be in 
writing and signed by all parties to an arm's-length contract. If you 
make timely application for a price increase or benefit allowed under 
your contract but the purchaser refuses, and you take reasonable 
measures, which are documented, to force

[[Page 797]]

purchaser compliance, you will owe no additional royalties unless or 
until monies or consideration resulting from the price increase or 
additional benefits are received. This paragraph is not intended to 
permit you to avoid your royalty payment obligation in situations where 
your purchaser fails to pay, in whole or in part, or timely, for a 
quantity of gas, residue gas, or gas plant product.
    (j) Non-binding ONRR reviews. Notwithstanding any provision in these 
regulations to the contrary, no review, reconciliation, monitoring, or 
other like process that results in an ONRR redetermination of value 
under this section will be considered final or binding against the 
Federal Government or its beneficiaries until the audit period is 
formally closed.
    (k) Confidential information. Certain information submitted to ONRR 
to support valuation proposals, including transportation allowances and 
processing allowances, may be exempted from disclosure under the Freedom 
of Information Act, 5 U.S.C. 552, or other Federal law. Any data 
specified by law to be privileged, confidential, or otherwise exempt, 
will be maintained in a confidential manner in accordance with 
applicable laws and regulations. All requests for information about 
determinations made under this subpart must be submitted in accordance 
with the Freedom of Information Act regulation of the Department of the 
Interior, 43 CFR part 2.

[64 FR 43515, Aug. 10, 1999, as amended at 65 FR 62614, Oct. 19, 2000]



Sec. 1206.175  How do I determine quantities and qualities of production for 

computing royalties?

    (a) For unprocessed gas, you must pay royalties on the quantity and 
quality at the facility measurement point BLM either allowed or 
approved.
    (b) For residue gas and gas plant products, you must pay royalties 
on your share of the monthly net output of the plant even though residue 
gas and/or gas plant products may be in temporary storage.
    (c) If you have no ownership interest in the processing plant and 
you do not operate the plant, you may use the contract volume allocation 
to determine your share of plant products.
    (d) If you have an ownership interest in the plant or if you operate 
it, use the following procedure to determine the quantity of the residue 
gas and gas plant products attributable to you for royalty payment 
purposes:
    (1) When the net output of the processing plant is derived from gas 
obtained from only one lease, the quantity of the residue gas and gas 
plant products on which you must pay royalty is the net output of the 
plant.
    (2) When the net output of a processing plant is derived from gas 
obtained from more than one lease producing gas of uniform content, the 
quantity of the residue gas and gas plant products allocable to each 
lease must be in the same proportions as the ratios obtained by dividing 
the amount of gas delivered to the plant from each lease by the total 
amount of gas delivered from all leases.
    (3) When the net output of a processing plant is derived from gas 
obtained from more than one lease producing gas of non-uniform content, 
the volumes of residue gas and gas plant products allocable to each 
lease are based on theoretical volumes of residue gas and gas plant 
products measured in the lease gas stream. You must calculate the 
portion of net plant output of residue gas and gas plant products 
attributable to each lease as follows:
    (i) First, compute the theoretical volumes of residue gas and of gas 
plant products attributable to the lease by multiplying the lease volume 
of the gas stream by the tested residue gas content (mole percentage) or 
gas plant product (GPM) content of the gas stream;
    (ii) Second, calculate the theoretical volumes of residue gas and of 
gas plant products delivered from all leases by summing the theoretical 
volumes of residue gas and of gas plant products delivered from each 
lease; and
    (iii) Third, calculate the theoretical quantities of net plant 
output of residue gas and of gas plant products attributable to each 
lease by multiplying the net plant output of residue gas, or gas plant 
products, by the ratio in which the theoretical volumes of residue gas, 
or gas plant products, is the

[[Page 798]]

numerator and the theoretical volume of residue gas, or gas plant 
products, delivered from all leases is the denominator.
    (4) You may request ONRR approval of other methods for determining 
the quantity of residue gas and gas plant products allocable to each 
lease. If ONRR approves a different method, it will be applicable to all 
gas production from your Indian leases that is processed in the same 
plant.
    (e) You may not take any deductions from the royalty volume or 
royalty value for actual or theoretical losses. Any actual loss of 
unprocessed gas incurred prior to the facility measurement point will 
not be subject to royalty if BLM determines that the loss was 
unavoidable.



Sec. 1206.176  How do I perform accounting for comparison?

    (a) This section applies if the gas produced from your Indian lease 
is processed and that Indian lease requires accounting for comparison 
(also referred to as actual dual accounting). Except as provided in 
paragraphs (b) and (c) of this section, the actual dual accounting 
value, for royalty purposes, is the greater of the following two values:
    (1) The combined value of the following products:
    (i) The residue gas and gas plant products resulting from processing 
the gas determined under either Sec. 1206.172 or Sec. 1206.174, less 
any applicable allowances; and
    (ii) Any drip condensate associated with the processed gas recovered 
downstream of the point of royalty settlement without resorting to 
processing determined under Sec. 1206.52, less applicable allowances.
    (2) The value of the gas prior to processing determined under either 
Sec. 1206.172 or Sec. 1206.174, including any applicable allowances.
    (b) If you are required to account for comparison, you may elect to 
use the alternative dual accounting methodology provided for in Sec. 
1206.173 instead of the provisions in paragraph (a) of this section.
    (c) Accounting for comparison is not required for gas if no gas from 
the lease is processed until after the gas flows into a pipeline with an 
index located in an index zone or into a mainline pipeline not in an 
index zone. If you do not perform dual accounting, you must certify to 
ONRR that gas flows into such a pipeline before it is processed.
    (d) Except as provided in paragraph (e) of this section, if you 
value any gas production from a lease for a month using the dual 
accounting provisions of this section or the alternative dual accounting 
methodology of Sec. 1206.173, then the value of that gas is the minimum 
value for any other gas production from that lease for that month 
flowing through the same facility measurement point.
    (e) If the weighted-average Btu quality for your lease is less than 
1,000 Btu's per cubic foot, see Sec. 1206.173(b)(4)(ii) to determine if 
you must perform a dual accounting calculation.

                        Transportation Allowances



Sec. 1206.177  What general requirements regarding transportation allowances 

apply to me?

    (a) When you value gas under Sec. 1206.174 at a point off the 
lease, unit, or communitized area (for example, sales point or point of 
value determination), you may deduct from value a transportation 
allowance to reflect the value, for royalty purposes, at the lease, 
unit, or communitized area. The allowance is based on the reasonable 
actual costs you incurred to transport unprocessed gas, residue gas, or 
gas plant products from a lease to a point off the lease, unit, or 
communitized area. This would include, if appropriate, transportation 
from the lease to a gas processing plant off the lease, unit, or 
communitized area and from the plant to a point away from the plant. You 
may not deduct any allowance for gathering costs.
    (b) You must allocate transportation costs among all products you 
produce and transport as provided in Sec. 1206.178.
    (c)(1) Except as provided in paragraphs (c)(2) and (3) of this 
section, your transportation allowance deduction for each sales type 
code may not exceed 50 percent of the value of the unprocessed gas, 
residue gas, or gas plant product. For purposes of this section, natural 
gas liquids are considered one product.

[[Page 799]]

    (2) If you ask ONRR, ONRR may approve a transportation allowance 
deduction in excess of the limitations in paragraph (c)(1) of this 
section. To receive this approval, you must demonstrate that the 
transportation costs incurred in excess of the limitations in paragraph 
(c)(1) of this section were reasonable, actual, and necessary. Under no 
circumstances may an allowance reduce the value for royalty purposes 
under any sales type code to zero.
    (3) Your application for exception (using Form MMS-4393, Request to 
Exceed Regulatory Allowance Limitation) must contain all relevant and 
supporting documentation necessary for ONRR to make a determination.
    (d) If ONRR conducts a review or audit and determines that you have 
improperly determined a transportation allowance authorized by this 
subpart, then you will be required to pay any additional royalties, plus 
interest determined in accordance with Sec. 1218.54 of this chapter. 
Alternatively, you may be entitled to a credit, but you will not receive 
any interest on your overpayment.

[64 FR 43515, Aug. 10, 1999, as amended at 73 FR 15891, Mar. 26, 2008]



Sec. 1206.178  How do I determine a transportation allowance?

    (a) Determining a transportation allowance under an arm's-length 
contract. (1) This paragraph explains how to determine your allowance if 
you have an arm's-length transportation contract.
    (i) If you have an arm's-length contract for transportation of your 
production, the transportation allowance is the reasonable, actual costs 
you incur for transporting the unprocessed gas, residue gas and/or gas 
plant products under that contract. Paragraphs (a)(1)(ii) and (iii) of 
this section provide a limited exception. You have the burden of 
demonstrating that your contract is arm's-length. Your allowances also 
are subject to paragraph (e) of this section. You are required to submit 
to ONRR a copy of your arm's-length transportation contract(s) and all 
subsequent amendments to the contract(s) within 2 months of the date 
ONRR receives your report which claims the allowance on the Form MMS-
2014.
    (ii) When either ONRR or a tribe conducts reviews and audits, they 
will examine whether or not the contract reflects more than the 
consideration actually transferred either directly or indirectly from 
you to the transporter of the transportation. If the contract reflects 
more than the total consideration, then ONRR may require that the 
transportation allowance be determined under paragraph (b) of this 
section.
    (iii) If ONRR determines that the consideration paid under an arm's-
length transportation contract does not reflect the value of the 
transportation because of misconduct by or between the contracting 
parties, or because you otherwise have breached your duty to the lessor 
to market the production for the mutual benefit of you and the lessor, 
then ONRR will require that the transportation allowance be determined 
under paragraph (b) of this section. In these circumstances, ONRR will 
notify you and give you an opportunity to provide written information 
justifying your transportation costs.
    (2) This paragraph explains how to allocate the costs to each 
product if your arm's-length transportation contract includes more than 
one product in a gaseous phase and the transportation costs attributable 
to each product cannot be determined from the contract.
    (i) If your arm's-length transportation contract includes more than 
one product in a gaseous phase and the transportation costs attributable 
to each product cannot be determined from the contract, the total 
transportation costs must be allocated in a consistent and equitable 
manner to each of the products transported. To make this allocation, use 
the same proportion as the ratio that the volume of each product 
(excluding waste products which have no value) bears to the volume of 
all products in the gaseous phase (excluding waste products which have 
no value). Except as provided in this paragraph, you cannot take an 
allowance for the costs of transporting lease production that is not 
royalty bearing without ONRR approval, or without lessor approval on 
tribal leases.

[[Page 800]]

    (ii) As an alternative to paragraph (a)(2)(i) of this section, you 
may propose to ONRR a cost allocation method based on the values of the 
products transported. ONRR will approve the method if we determine that 
it meets one of the two following requirements:
    (A) The methodology in paragraph (a)(2)(i) of this section cannot be 
applied; and
    (B) Your proposal is more reasonable than the methodology in 
paragraph (a)(2)(i) of this section.
    (3) This paragraph explains how to allocate costs to each product if 
your arm's-length transportation contract includes both gaseous and 
liquid products and the transportation costs attributable to each cannot 
be determined from the contract.
    (i) If your arm's-length transportation contract includes both 
gaseous and liquid products and the transportation costs attributable to 
each cannot be determined from the contract, you must propose an 
allocation procedure to ONRR. You may use the transportation allowance 
determined in accordance with your proposed allocation procedure until 
ONRR decides whether to accept your cost allocation.
    (ii) You are required to submit all relevant data to support your 
allocation proposal. ONRR will then determine the gas transportation 
allowance based upon your proposal and any additional information ONRR 
deems necessary.
    (4) If your payments for transportation under an arm's-length 
contract are not based on a dollar per unit price, you must convert 
whatever consideration is paid to a dollar value equivalent for the 
purposes of this section.
    (5) Where an arm's-length sales contract price includes a reduction 
for a transportation factor, ONRR will not consider the transportation 
factor to be a transportation allowance. You may use the transportation 
factor to determine your gross proceeds for the sale of the product. 
However, the transportation factor may not exceed 50 percent of the base 
price of the product without ONRR approval.
    (b) Determining a transportation allowance under a non-arm's-length 
or no contract. (1) This paragraph explains how to determine your 
allowance if you have a non-arm's-length transportation contract or no 
contract.
    (i) When you have a non-arm's-length transportation contract or no 
contract, including those situations where you perform transportation 
services for yourself, the transportation allowance is based upon your 
reasonable, allowable, actual costs for transportation as provided in 
this paragraph.
    (ii) All transportation allowances deducted under a non-arm's-length 
or no contract situation are subject to monitoring, review, audit, and 
adjustment. You must submit the actual cost information to support the 
allowance to ONRR on Form MMS-4295, Gas Transportation Allowance Report, 
within 3 months after the end of the 12-month period to which the 
allowance applies. However, ONRR may approve a longer time period. ONRR 
will monitor the allowance deductions to ensure that deductions are 
reasonable and allowable. When necessary or appropriate, ONRR may 
require you to modify your actual transportation allowance deduction.
    (2) This paragraph explains what actual transportation costs are 
allowable under a non-arm's-length contract or no contract situation. 
The transportation allowance for non-arm's-length or no-contract 
situations is based upon your actual costs for transportation during the 
reporting period. Allowable costs include operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment (in accordance with paragraph 
(b)(2)(iv)(A) of this section), or a cost equal to the initial 
depreciable investment in the transportation system multiplied by a rate 
of return in accordance with paragraph (b)(2)(iv)(B) of this section. 
Allowable capital costs are generally those costs for depreciable fixed 
assets (including costs of delivery and installation of capital 
equipment) that are an integral part of the transportation system.
    (i) Allowable operating expenses include operations supervision and 
engineering, operations labor, fuel, utilities, materials, ad valorem 
property taxes, rent, supplies, and any other directly allocable and 
attributable operating expense that you can document.

[[Page 801]]

    (ii) Allowable maintenance expenses include maintenance of the 
transportation system, maintenance of equipment, maintenance labor, and 
other directly allocable and attributable maintenance expenses that you 
can document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the transportation system is an allowable expense. 
State and Federal income taxes and severance taxes and other fees, 
including royalties, are not allowable expenses.
    (iv) You may use either depreciation with a return on undepreciated 
capital investment or a return on depreciable capital investment. After 
you have elected to use either method for a transportation system, you 
may not later elect to change to the other alternative without ONRR 
approval.
    (A) To compute depreciation, you may elect to use either a straight-
line depreciation method based on the life of equipment or on the life 
of the reserves that the transportation system services, or a unit of 
production method. Once you make an election, you may not change methods 
without ONRR approval. A change in ownership of a transportation system 
will not alter the depreciation schedule that the original transporter/
lessee established for purposes of the allowance calculation. With or 
without a change in ownership, a transportation system may be 
depreciated only once. Equipment may not be depreciated below a 
reasonable salvage value. To compute a return on undepreciated capital 
investment, you will multiply the undepreciated capital investment in 
the transportation system by the rate of return determined under 
paragraph (b)(2)(v) of this section.
    (B) To compute a return on depreciable capital investment, you will 
multiply the initial capital investment in the transportation system by 
the rate of return determined under paragraph (b)(2)(v) of this section. 
No allowance will be provided for depreciation. This alternative will 
apply only to transportation facilities first placed in service after 
March 1, 1988.
    (v) The rate of return is the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return is the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month of the reporting period for which the allowance is 
applicable and is effective during the reporting period. The rate must 
be redetermined at the beginning of each subsequent transportation 
allowance reporting period that is determined under paragraph (b)(4) of 
this section.
    (3) This paragraph explains how to allocate transportation costs to 
each product and transportation system.
    (i) The deduction for transportation costs must be determined based 
on your cost of transporting each product through each individual 
transportation system. If you transport more than one product in a 
gaseous phase, the allocation of costs to each of the products 
transported must be made in a consistent and equitable manner. The 
allocation should be in the same proportion that the volume of each 
product (excluding waste products that have no value) bears to the 
volume of all products in the gaseous phase (excluding waste products 
that have no value). Except as provided in this paragraph, you may not 
take an allowance for transporting a product that is not royalty bearing 
without ONRR approval.
    (ii) As an alternative to the requirements of paragraph (b)(3)(i) of 
this section, you may propose to ONRR a cost allocation method based on 
the values of the products transported. ONRR will approve the method 
upon determining that it meets one of the two following requirements:
    (A) The methodology in paragraph (b)(3)(i) of this section cannot be 
applied; and
    (B) Your proposal is more reasonable than the method in paragraph 
(b)(3)(i) of this section.
    (4) Your transportation allowance under this paragraph (b) must be 
determined based upon a calendar year or other period if you and ONRR 
agree to an alternative.
    (5) If you transport both gaseous and liquid products through the 
same transportation system, you must propose a cost allocation procedure 
to ONRR. You may use the transportation allowance determined in 
accordance

[[Page 802]]

with your proposed allocation procedure until ONRR issues its 
determination on the acceptability of the cost allocation. You are 
required to submit all relevant data to support your proposal. ONRR will 
then determine the transportation allowance based upon your proposal and 
any additional information ONRR deems necessary.
    (c) Using the alternative transportation calculation when you have a 
non-arm's-length or no contract. (1) As an alternative to computing your 
transportation allowance under paragraph (b) of this section, you may 
use as the transportation allowance 10 percent of your gross proceeds 
but not to exceed 30 cents per MMBtu.
    (2) Your election to use the alternative transportation allowance 
calculation in paragraph (c)(1) of this section must be made at the 
beginning of a month and must remain in effect for an entire calendar 
year. Your first election will remain in effect until the end of the 
succeeding calendar year, except for elections effective January 1 that 
will be effective only for that calendar year.
    (d) Reporting your transportation allowance. (1) If ONRR requests, 
you must submit all data used to determine your transportation 
allowance. The data must be provided within a reasonable period of time 
that ONRR will determine.
    (2) You must report transportation allowances as a separate entry on 
Form MMS-2014. ONRR may approve a different reporting procedure on 
allottee leases, and with lessor approval on tribal leases.
    (e) Adjusting incorrect allowances. If for any month the 
transportation allowance you are entitled to is less than the amount you 
took on Form MMS-2014, you are required to report and pay additional 
royalties due, plus interest computed under Sec. 1218.54 of this 
chapter from the first day of the first month you deducted the improper 
transportation allowance until the date you pay the royalties due. If 
the transportation allowance you are entitled to is greater than the 
amount you took on Form MMS-2014 for any royalties during the reporting 
period, you are entitled to a credit. No interest will be paid on the 
overpayment.
    (f) Determining allowable costs for transportation allowances. 
Lessees may include, but are not limited to, the following costs in 
determining the arm's-length transportation allowance under paragraph 
(a) of this section or the non-arm's-length transportation allowance 
under paragraph (b) of this section:
    (1) Firm demand charges paid to pipelines. You must limit the 
allowable costs for the firm demand charges to the applicable rate per 
MMBtu multiplied by the actual volumes transported. You may not include 
any losses incurred for previously purchased but unused firm capacity. 
You also may not include any gains associated with releasing firm 
capacity. If you receive a payment or credit from the pipeline for 
penalty refunds, rate case refunds, or other reasons, you must reduce 
the firm demand charge claimed on the Form MMS-2014. You must modify the 
Form MMS-2014 by the amount received or credited for the affected 
reporting period.
    (2) Gas supply realignment (GSR) costs. The GSR costs result from a 
pipeline reforming or terminating supply contracts with producers to 
implement the restructuring requirements of FERC orders in 18 CFR part 
284.
    (3) Commodity charges. The commodity charge allows the pipeline to 
recover the costs of providing service.
    (4) Wheeling costs. Hub operators charge a wheeling cost for 
transporting gas from one pipeline to either the same or another 
pipeline through a market center or hub. A hub is a connected manifold 
of pipelines through which a series of incoming pipelines are 
interconnected to a series of outgoing pipelines.
    (5) Gas Research Institute (GRI) fees. The GRI conducts research, 
development, and commercialization programs on natural gas related 
topics for the benefit of the U.S. gas industry and gas customers. GRI 
fees are allowable provided such fees are mandatory in FERC-approved 
tariffs.
    (6) Annual Charge Adjustment (ACA) fees. FERC charges these fees to 
pipelines to pay for its operating expenses.
    (7) Payments (either volumetric or in value) for actual or 
theoretical losses. This paragraph does not apply to non-

[[Page 803]]

arm's-length transportation arrangements.
    (8) Temporary storage services. This includes short duration storage 
services offered by market centers or hubs (commonly referred to as 
``parking'' or ``banking''), or other temporary storage services 
provided by pipeline transporters, whether actual or provided as a 
matter of accounting. Temporary storage is limited to 30 days or less.
    (9) Supplemental costs for compression, dehydration, and treatment 
of gas. ONRR allows these costs only if such services are required for 
transportation and exceed the services necessary to place production 
into marketable condition required under Sec. 1206.174(h).
    (g) Determining nonallowable costs for transportation allowances. 
Lessees may not include the following costs in determining the arm's-
length transportation allowance under paragraph (a) of this section or 
the non-arm's-length transportation allowance under paragraph (b) of 
this section:
    (1) Fees or costs incurred for storage. This includes storing 
production in a storage facility, whether on or off the lease, for more 
than 30 days.
    (2) Aggregater/marketer fees. This includes fees you pay to another 
person (including your affiliates) to market your gas, including 
purchasing and reselling the gas, or finding or maintaining a market for 
the gas production.
    (3) Penalties you incur as shipper. These penalties include, but are 
not limited to the following:
    (i) Over-delivery cash-out penalties. This includes the difference 
between the price the pipeline pays you for over-delivered volumes 
outside the tolerances and the price you receive for over-delivered 
volumes within tolerances.
    (ii) Scheduling penalties. This includes penalties you incur for 
differences between daily volumes delivered into the pipeline and 
volumes scheduled or nominated at a receipt or delivery point.
    (iii) Imbalance penalties. This includes penalties you incur 
(generally on a monthly basis) for differences between volumes delivered 
into the pipeline and volumes scheduled or nominated at a receipt or 
delivery point.
    (iv) Operational penalties. This includes fees you incur for 
violation of the pipeline's curtailment or operational orders issued to 
protect the operational integrity of the pipeline.
    (4) Intra-hub transfer fees. These are fees you pay to hub operators 
for administrative services (e.g., title transfer tracking) necessary to 
account for the sale of gas within a hub.
    (5) Other nonallowable costs. Any cost you incur for services you 
are required to provide at no cost to the lessor.
    (h) Other transportation cost determinations. You must follow the 
provisions of this section to determine transportation costs when 
establishing value using either a net-back valuation procedure or any 
other procedure that allows deduction of actual transportation costs.

[64 FR 43515, Aug. 10, 1999, as amended at 73 FR 15891, Mar. 26, 2008]

                          Processing Allowances



Sec. 1206.179  What general requirements regarding processing allowances apply 

to me?

    (a) When you value any gas plant product under Sec. 1206.174, you 
may deduct from value the reasonable actual costs of processing.
    (b) You must allocate processing costs among the gas plant products. 
You must determine a separate processing allowance for each gas plant 
product and processing plant relationship. Natural gas liquids are 
considered as one product.
    (c) The processing allowance deduction based on an individual 
product may not exceed 66 2/3 percent of the value of each gas plant 
product determined under Sec. 1206.174. Before you calculate the 66 2/3 
percent limit, you must first reduce the value for any transportation 
allowances related to post-processing transportation authorized under 
Sec. 1206.177.
    (d) Processing cost deductions will not be allowed for placing lease 
products in marketable condition. These costs include among others, 
dehydration, separation, compression upstream of the facility 
measurement point, or storage, even if those functions are performed off 
the lease or at a processing plant. Costs for the removal of acid

[[Page 804]]

gases, commonly referred to as sweetening, are not allowed unless the 
acid gases removed are further processed into a gas plant product. In 
such event, you will be eligible for a processing allowance determined 
under this subpart. However, ONRR will not grant any processing 
allowance for processing lease production that is not royalty bearing.
    (e) You will be allowed a reasonable amount of residue gas royalty 
free for operation of the processing plant, but no allowance will be 
made for expenses incidental to marketing, except as provided in 30 CFR 
part 1206. In those situations where a processing plant processes gas 
from more than one lease, only that proportionate share of your residue 
gas necessary for the operation of the processing plant will be allowed 
royalty free.
    (f) You do not owe royalty on residue gas, or any gas plant product 
resulting from processing gas, that is reinjected into a reservoir 
within the same lease, unit, or approved Federal agreement, until such 
time as those products are finally produced from the reservoir for sale 
or other disposition. This paragraph applies only when the reinjection 
is included in a BLM-approved plan of development or operations.
    (g) If ONRR determines that you have determined an improper 
processing allowance authorized by this subpart, then you will be 
required to pay any additional royalties plus late payment interest 
determined under Sec. 1218.54 of this chapter. Alternatively, you may 
be entitled to a credit, but you will not receive any interest on your 
overpayment.



Sec. 1206.180  How do I determine an actual processing allowance?

    (a) Determining a processing allowance if you have an arms's-length 
processing contract. (1) This paragraph explains how you determine an 
allowance under an arm's-length processing contract.
    (i) The processing allowance is the reasonable actual costs you 
incur to process the gas under that contract. Paragraphs (a)(1)(ii) and 
(iii) of this section provide a limited exception. You have the burden 
of demonstrating that your contract is arm's-length. You are required to 
submit to ONRR a copy of your arm's-length contract(s) and all 
subsequent amendments to the contract(s) within 2 months of the date 
ONRR receives your first report that deducts the allowance on the Form 
MMS-2014.
    (ii) When ONRR conducts reviews and audits, we will examine whether 
the contract reflects more than the consideration actually transferred 
either directly or indirectly from you to the processor for the 
processing. If the contract reflects more than the total consideration, 
then ONRR may require that the processing allowance be determined under 
paragraph (b) of this section.
    (iii) If ONRR determines that the consideration paid under an arm's-
length processing contract does not reflect the value of the processing 
because of misconduct by or between the contracting parties, or because 
you otherwise have breached your duty to the lessor to market the 
production for the mutual benefit of you and the lessor, then ONRR will 
require that the processing allowance be determined under paragraph (b) 
of this section. In these circumstances, ONRR will notify you and give 
you an opportunity to provide written information justifying your 
processing costs.
    (2) If your arm's-length processing contract includes more than one 
gas plant product and the processing costs attributable to each product 
can be determined from the contract, then the processing costs for each 
gas plant product must be determined in accordance with the contract. 
You may not take an allowance for the costs of processing lease 
production that is not royalty-bearing.
    (3) If your arm's-length processing contract includes more than one 
gas plant product and the processing costs attributable to each product 
cannot be determined from the contract, you must propose an allocation 
procedure to ONRR. You may use your proposed allocation procedure until 
ONRR issues its determination. You are required to submit all relevant 
data to support your proposal. ONRR will then determine the processing 
allowance based upon your proposal and any additional information ONRR 
deems necessary.

[[Page 805]]

You may not take a processing allowance for the costs of processing 
lease production that is not royalty-bearing.
    (4) If your payments for processing under an arm's-length contract 
are not based on a dollar per unit price, you must convert whatever 
consideration is paid to a dollar value equivalent for the purposes of 
this section.
    (b) Determining a processing allowance if you have a non-arm's-
length contract or no contract. (1) This paragraph applies if you have a 
non-arm's-length processing contract or no contract, including those 
situations where you perform processing for yourself.
    (i) If you have a non-arm's-length contract or no contract, the 
processing allowance is based upon your reasonable actual costs of 
processing as provided in paragraph (b)(2) of this section.
    (ii) All processing allowances deducted under a non-arm's-length or 
no-contract situation are subject to monitoring, review, audit, and 
adjustment. You must submit the actual cost information to support the 
allowance to ONRR on Form MMS-4109, Gas Processing Allowance Summary 
Report, within 3 months after the end of the 12-month period for which 
the allowance applies. ONRR may approve a longer time period. ONRR will 
monitor the allowance deduction to ensure that deductions are reasonable 
and allowable. When necessary or appropriate, ONRR may require you to 
modify your processing allowance.
    (2) The processing allowance for non-arm's-length or no-contract 
situations is based upon your actual costs for processing during the 
reporting period. Allowable costs include operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment (in accordance with paragraph 
(b)(2)(iv)(A) of this section), or a cost equal to the initial 
depreciable investment in the processing plant multiplied by a rate of 
return in accordance with paragraph (b)(2)(iv)(B) of this section. 
Allowable capital costs are generally those costs for depreciable fixed 
assets (including costs of delivery and installation of capital 
equipment) that are an integral part of the processing plant.
    (i) Allowable operating expenses include operations supervision and 
engineering, operations labor, fuel, utilities, materials, ad valorem 
property taxes, rent, supplies, and any other directly allocable and 
attributable operating expense that the lessee can document.
    (ii) Allowable maintenance expenses include maintenance of the 
processing plant, maintenance of equipment, maintenance labor, and other 
directly allocable and attributable maintenance expenses that you can 
document.
    (iii) Overhead directly attributable and allocable to the operation 
and maintenance of the processing plant is an allowable expense. State 
and Federal income taxes and severance taxes, including royalties, are 
not allowable expenses.
    (iv) You may use either depreciation with a return on undepreciable 
capital investment or a return on depreciable capital investment. After 
you elect to use either method for a processing plant, you may not later 
elect to change to the other alternative without ONRR approval.
    (A) To compute depreciation, you may elect to use either a straight-
line depreciation method based on the life of equipment or on the life 
of the reserves that the processing plant services, or a unit-of-
production method. Once you make an election, you may not change methods 
without ONRR approval. A change in ownership of a processing plant will 
not alter the depreciation schedule that the original processor/lessee 
established for purposes of the allowance calculation. However, for 
processing plants you or your affiliate purchase that do not have a 
previously claimed ONRR depreciation schedule, you may treat the 
processing plant as a newly installed facility for depreciation 
purposes. A processing plant may be depreciated only once, regardless of 
whether there is a change in ownership. Equipment may not be depreciated 
below a reasonable salvage value. To compute a return on undepreciated 
capital investment, you must multiply the undepreciable capital 
investment in the processing plant by the rate of return determined 
under paragraph (b)(2)(v) of this section.

[[Page 806]]

    (B) To compute a return on depreciable capital investment, you must 
multiply the initial capital investment in the processing plant by the 
rate of return determined under paragraph (b)(2)(v) of this section. No 
allowance will be provided for depreciation. This alternative will apply 
only to plants first placed in service after March 1, 1988.
    (v) The rate of return is the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return is the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3) Your processing allowance under this paragraph (b) must be 
determined based upon a calendar year or other period if you and ONRR 
agree to an alternative.
    (4) The processing allowance for each gas plant product must be 
determined based on your reasonable and actual cost of processing the 
gas. You must base your allocation of costs to each gas plant product 
upon generally accepted accounting principles. You may not take an 
allowance for the costs of processing lease production that is not 
royalty-bearing.
    (c) Reporting your processing allowance. (1) If ONRR requests, you 
must submit all data used to determine your processing allowance. The 
data must be provided within a reasonable period of time, as ONRR 
determines.
    (2) You must report gas processing allowances as a separate entry on 
the Form MMS-2014. ONRR may approve a different reporting procedure for 
allottee leases, and with lessor approval on tribal leases.
    (d) Adjusting incorrect processing allowances. If for any month the 
gas processing allowance you are entitled to is less than the amount you 
took on Form MMS-2014, you are required to pay additional royalties, 
plus interest computed under Sec. 1218.54 of this chapter from the 
first day of the first month you deducted a processing allowance until 
the date you pay the royalties due. If the processing allowance you are 
entitled is greater than the amount you took on Form MMS-2014, you are 
entitled to a credit. However, no interest will be paid on the 
overpayment.
    (e) Other processing cost determinations. You must follow the 
provisions of this section to determine processing costs when 
establishing value using either a net-back valuation procedure or any 
other procedure that requires deduction of actual processing costs.

[64 FR 43515, Aug. 10, 1999, as amended at 73 FR 15891, Mar. 26, 2008]



Sec. 1206.181  How do I establish processing costs for dual accounting 

purposes when I do not process the gas?

    Where accounting for comparison (dual accounting) is required for 
gas production from a lease but neither you nor someone acting on your 
behalf processes the gas, and you have elected to perform actual dual 
accounting under Sec. 1206.176, you must use the first applicable of 
the following methods to establish processing costs for dual accounting 
purposes:
    (a) The average of the costs established in your current arm's-
length processing agreements for gas from the lease, provided that some 
gas has previously been processed under these agreements.
    (b) The average of the costs established in your current arm's-
length processing agreements for gas from the lease, provided that the 
agreements are in effect for plants to which the lease is physically 
connected and under which gas from other leases in the field or area is 
being or has been processed.
    (c) A proposed comparable processing fee submitted to either the 
tribe and ONRR (for tribal leases) or ONRR (for allotted leases) with 
your supporting documentation submitted to ONRR. If ONRR does not take 
action on your proposal within 120 days, the proposal will be deemed to 
be denied and subject to appeal to the ONRR Director under 30 CFR part 
1290.
    (d) Processing costs based on the regulations in Sec. Sec. 1206.179 
and 1206.180.



                         Subpart F_Federal Coal

    Source: 54 FR 1523, Jan. 13, 1989, unless otherwise noted.

[[Page 807]]



Sec. 1206.250  Purpose and scope.

    (a) This subpart is applicable to all coal produced from Federal 
coal leases. The purpose of this subpart is to establish the value of 
coal produced for royalty purposes, of all coal from Federal leases 
consistent with the mineral leasing laws, other applicable laws and 
lease terms.
    (b) If the specific provisions of any statute or settlement 
agreement between the United States and a lessee resulting from 
administrative or judicial litigation, or any coal lease subject to the 
requirements of this subpart, are inconsistent with any regulation in 
this subpart then the statute, lease provision, or settlement shall 
govern to the extent of that inconsistency.
    (c) All royalty payments made to the Office of Natural Resources 
Revenue (ONRR) are subject to later audit and adjustment.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5479, Feb. 12, 1996; 67 
FR 19111, Apr. 18, 2002]



Sec. 1206.251  Definitions.

    Ad valorem lease means a lease where the royalty due to the lessor 
is based upon a percentage of the amount or value of the coal.
    Allowance means a deduction used in determining value for royalty 
purposes. Coal washing allowance means an allowance for the reasonable, 
actual costs incurred by the lessee for coal washing. Transportation 
allowance means an allowance for the reasonable, actual costs incurred 
by the lessee for moving coal to a point of sale or point of delivery 
remote from both the lease and mine or wash plant.
    Area means a geographic region in which coal has similar quality and 
economic characteristics. Area boundaries are not officially designated 
and the areas are not necessarily named.
    Arm's-length contract means a contract or agreement that has been 
arrived at in the marketplace between independent, nonaffiliated persons 
with opposing economic interests regarding that contract. For purposes 
of this subpart, two persons are affiliated if one person controls, is 
controlled by, or is under common control with another person. For 
purposes of this subpart, based on the instruments of ownership of the 
voting securities of an entity, or based on other forms of ownership:
    (a) Ownership in excess of 50 percent constitutes control;
    (b) Ownership of 10 through 50 percent creates a presumption of 
control; and
    (c) Ownership of less than 10 percent creates a presumption of 
noncontrol which ONRR may rebut if it demonstrates actual or legal 
control, including the existence of interlocking directorates.

Notwithstanding any other provisions of this subpart, contracts between 
relatives, either by blood or by marriage, are not arm's-length 
contracts. The ONRR may require the lessee to certify ownership control. 
To be considered arm's-length for any production month, a contract must 
meet the requirements of this definition for that production month as 
well as when the contract was executed.
    Audit means a review, conducted in accordance with generally 
accepted accounting and auditing standards, of royalty payment 
compliance activities of lessees or other interest holders who pay 
royalties, rents, or bonuses on Federal leases.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Coal means coal of all ranks from lignite through anthracite.
    Coal washing means any treatment to remove impurities from coal. 
Coal washing may include, but is not limited to, operations such as 
flotation, air, water, or heavy media separation; drying; and related 
handling (or combination thereof).
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to a coal lessee for the production and 
disposition of the coal produced. Gross proceeds includes, but is not 
limited to, payments to the lessee for certain services such as 
crushing, sizing, screening,

[[Page 808]]

storing, mixing, loading, treatment with substances including chemicals 
or oils, and other preparation of the coal to the extent that the lessee 
is obligated to perform them at no cost to the Federal Government. Gross 
proceeds, as applied to coal, also includes but is not limited to 
reimbursements for royalties, taxes or fees, and other reimbursements. 
Tax reimbursements are part of the gross proceeds accruing to a lessee 
even though the Federal royalty interest may be exempt from taxation. 
Monies and other consideration, including the forms of consideration 
identified in this paragraph, to which a lessee is contractually or 
legally entitled but which it does not seek to collect through 
reasonable efforts are also part of gross proceeds.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States for a Federal 
coal resource under a mineral leasing law that authorizes exploration 
for, development or extraction of, or removal of coal--or the land 
covered by that authorization, whichever is required by the context.
    Lessee means any person to whom the United States issues a lease, 
and any person who has been assigned an obligation to make royalty or 
other payments required by the lease. This includes any person who has 
an interest in a lease as well as an operator or payor who has no 
interest in the lease but who has assumed the royalty payment 
responsibility.
    Like-quality coal means coal that has similar chemical and physical 
characteristics.
    Marketable condition means coal that is sufficiently free from 
impurities and otherwise in a condition that it will be accepted by a 
purchaser under a sales contract typical for that area.
    Mine means an underground or surface excavation or series of 
excavations and the surface or underground support facilities that 
contribute directly or indirectly to mining, production, preparation, 
and handling of lease products.
    Net-back method means a method for calculating market value of coal 
at the lease or mine. Under this method, costs of transportation, 
washing, handling, etc., are deducted from the ultimate proceeds 
received for the coal at the first point at which reasonable values for 
the coal may be determined by a sale pursuant to an arm's-length 
contract or by comparison to other sales of coal, to ascertain value at 
the mine.
    Net output means the quantity of washed coal that a washing plant 
produces.
    Netting is the deduction of an allowance from the sales value by 
reporting a one line net sales value, instead of correctly reporting the 
deduction as a separate line item on the Form MMS-4430.
    Person means by individual, firm, corporation, association, 
partnership, consortium, or joint venture.
    Sales type code means the contract type or general disposition 
(e.g., arm's-length or non-arm's-length) of production from the lease. 
The sales type code applies to the sales contract, or other disposition, 
and not to the arm's-length or non-arm's-length nature of a 
transportation or washing allowance.
    Spot market price means the price received under any sales 
transaction when planned or actual deliveries span a short period of 
time, usually not exceeding one year.

[54 FR 1523, Jan. 13, 1989, as amended at 55 FR 35433, Aug. 30, 1990; 61 
FR 5479, Feb. 12, 1996; 64 FR 43288, Aug. 10, 1999; 66 FR 45769, Aug. 
30, 2001; 73 FR 15891, Mar. 26, 2008]



Sec. 1206.252  Information collection.

    The information collection requirements contained in this subpart 
have been approved by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. The forms, filing date, and approved OMB control 
numbers are identified in part 1210--Forms and Reports.

[73 FR 15891, Mar. 26, 2008]



Sec. 1206.253  Coal subject to royalties--general provisions.

    (a) All coal (except coal unavoidably lost as determined by BLM 
under 43 CFR part 3400) from a Federal lease subject to this part is 
subject to royalty. This includes coal used, sold, or otherwise disposed 
of by the lessee on or off the lease.

[[Page 809]]

    (b) If a lessee receives compensation for unavoidably lost coal 
through insurance coverage or other arrangements, royalties at the rate 
specified in the lease are to be paid on the amount of compensation 
received for the coal. No royalty is due on insurance compensation 
received by the lessee for other losses.
    (c) If waste piles or slurry ponds are reworked to recover coal, the 
lessee shall pay royalty at the rate specified in the lease at the time 
the recovered coal is used, sold, or otherwise finally disposed of. The 
royalty rate shall be that rate applicable to the production method used 
to initially mine coal in the waste pile or slurry pond; i.e., 
underground mining method or surface mining method. Coal in waste pits 
or slurry ponds initially mined from Federal leases shall be allocated 
to such leases regardless of whether it is stored on Federal lands. The 
lessee shall maintain accurate records to determine to which individual 
Federal lease coal in the waste pit or slurry pond should be allocated. 
However, nothing in this section requires payment of a royalty on coal 
for which a royalty has already been paid.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5479, Feb. 12, 1996]



Sec. 1206.254  Quality and quantity measurement standards for reporting and 

paying royalties.

    For all leases subject to this subpart, the quantity of coal on 
which royalty is due shall be measured in short tons (of 2,000 pounds 
each) by methods prescribed by the BLM. Coal quantity information will 
be reported on appropriate forms required under 30 CFR part 210--Forms 
and Reports.

[54 FR 1523, Jan. 13, 1989, as amended at 57 FR 52720, Nov. 5, 1992; 66 
FR 45769, Aug. 30, 2001; 73 FR 15891, Mar. 26, 2008]



Sec. 1206.255  Point of royalty determination.

    (a) For all leases subject to this subpart, royalty shall be 
computed on the basis of the quantity and quality of Federal coal in 
marketable condition measured at the point of royalty measurement as 
determined jointly by BLM and ONRR .
    (b) Coal produced and added to stockpiles or inventory does not 
require payment of royalty until such coal is later used, sold, or 
otherwise finally disposed of. ONRR may ask BLM to increase the lease 
bond to protect the lessor's interest when BLM determines that 
stockpiles or inventory become excessive so as to increase the risk of 
degradation of the resource.
    (c) The lessee shall pay royalty at a rate specified in the lease at 
the time the coal is used, sold, or otherwise finally disposed of, 
unless otherwise provided for at Sec. 1206.256(d) of this subpart.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5480, Feb. 12, 1996]



Sec. 1206.256  Valuation standards for cents-per-ton leases.

    (a) This section is applicable to coal leases on Federal lands which 
provide for the determination of royalty on a cents-per-ton (or other 
quantity) basis.
    (b) The royalty for coal from leases subject to this section shall 
be based on the dollar rate per ton prescribed in the lease. That dollar 
rate shall be applicable to the actual quantity of coal used, sold, or 
otherwise finally disposed of, including coal which is avoidably lost as 
determine by BLM pursuant to 43 CFR part 3400.
    (c) For leases subject to this section, there shall be no allowances 
for transportation, removal of impurities, coal washing, or any other 
processing or preparation of the coal.
    (d) When a coal lease is readjusted pursuant to 43 CFR part 3400 and 
the royalty valuation method changes from a cents-per-ton basis to an ad 
valorem basis, coal which is produced prior to the effective date of 
readjustment and sold or used within 30 days of the effective date of 
readjustment shall be valued pursuant to this section. All coal that is 
not used, sold, or otherwise finally disposed of within 30 days after 
the effective date of readjustment shall be valued pursuant to the 
provisions of Sec. 1206.257 of this subpart, and royalties shall be 
paid at the royalty rate specified in the readjusted lease.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5480, Feb. 12, 1996]

[[Page 810]]



Sec. 1206.257  Valuation standards for ad valorem leases.

    (a) This section is applicable to coal leases on Federal lands which 
provide for the determination of royalty as a percentage of the amount 
of value of coal (ad valorem). The value for royalty purposes of coal 
from such leases shall be the value of coal determined under this 
section, less applicable coal washing allowances and transportation 
allowances determined under Sec. Sec. 1206.258 through 1206.262 of this 
subpart, or any allowance authorized by Sec. 1206.265 of this subpart. 
The royalty due shall be equal to the value for royalty purposes 
multiplied by the royalty rate in the lease.
    (b)(1) The value of coal that is sold pursuant to an arm's-length 
contract shall be the gross proceeds accruing to the lessee, except as 
provided in paragraphs (b)(2), (b)(3), and (b)(5) of this section. The 
lessee shall have the burden of demonstrating that its contract is 
arm's-length. The value which the lessee reports, for royalty purposes, 
is subject to monitoring, review, and audit.
    (2) In conducting reviews and audits, ONRR will examine whether the 
contract reflects the total consideration actually transferred either 
directly or indirectly from the buyer to the seller for the coal 
produced. If the contract does not reflect the total consideration, then 
the ONRR may require that the coal sold pursuant to that contract be 
valued in accordance with paragraph (c) of this section. Value may not 
be based on less than the gross proceeds accruing to the lessee for the 
coal production, including the additional consideration.
    (3) If ONRR determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the production because of misconduct by or between 
the contracting parties, or because the lessee otherwise has breached 
its duty to the lessor to market the production for the mutual benefit 
of the lessee and the lessor, then ONRR shall require that the coal 
production be valued pursuant to paragraph (c)(2) (ii), (iii), (iv), or 
(v) of this section, and in accordance with the notification 
requirements of paragraph (d)(3) of this section. When ONRR determines 
that the value may be unreasonable, ONRR will notify the lessee and give 
the lessee an opportunity to provide written information justifying the 
lessee's reported coal value.
    (4) ONRR may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the coal production.
    (5) The value of production for royalty purposes shall not include 
payments received by the lessee pursuant to a contract which the lessee 
demonstrates, to ONRR's satisfaction, were not part of the total 
consideration paid for the purchase of coal production.
    (c)(1) The value of coal from leases subject to this section and 
which is not sold pursuant to an arm's-length contract shall be 
determined in accordance with this section.
    (2) If the value of the coal cannot be determined pursuant to 
paragraph (b) of this section, then the value shall be determined 
through application of other valuation criteria. The criteria shall be 
considered in the following order, and the value shall be based upon the 
first applicable criterion:
    (i) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract (or other disposition of produced 
coal by other than an arm's-length contract), provided that those gross 
proceeds are within the range of the gross proceeds derived from, or 
paid under, comparable arm's-length contracts between buyers and sellers 
neither of whom is affiliated with the lessee for sales, purchases, or 
other dispositions of like-quality coal produced in the area. In 
evaluating the comparability of arm's-length contracts for the purposes 
of these regulations, the following factors shall be considered: Price, 
time of execution, duration, market or markets served, terms, quality of 
coal, quantity, and such other factors as may be appropriate to reflect 
the value of the coal;
    (ii) Prices reported for that coal to a public utility commission;
    (iii) Prices reported for that coal to the Energy Information 
Administration of the Department of Energy;
    (iv) Other relevant matters including, but not limited to, published 
or

[[Page 811]]

publicly available spot market prices, or information submitted by the 
lessee concerning circumstances unique to a particular lease operation 
or the saleability of certain types of coal;
    (v) If a reasonable value cannot be determined using paragraphs 
(c)(2) (i), (ii), (iii), or (iv) of this section, then a net-back method 
or any other reasonable method shall be used to determine value.
    (3) When the value of coal is determined pursuant to paragraph 
(c)(2) of this section, that value determination shall be consistent 
with the provisions contained in paragraph (b)(5) of this section.
    (d)(1) Where the value is determined pursuant to paragraph (c) of 
this section, that value does not require ONRR's prior approval. 
However, the lessee shall retain all data relevant to the determination 
of royalty value. Such data shall be subject to review and audit, and 
ONRR will direct a lessee to use a different value if it determines that 
the reported value is inconsistent with the requirements of these 
regulations.
    (2) Any Federal lessee will make available upon request to the 
authorized ONRR or State representatives, to the Inspector General of 
the Department of the Interior or other persons authorized to receive 
such information, arm's-length sales value and sales quantity data for 
like-quality coal sold, purchased, or otherwise obtained by the lessee 
from the area.
    (3) A lessee shall notify ONRR if it has determined value pursuant 
to paragraphs (c)(2) (ii), (iii), (iv), or (v) of this section. The 
notification shall be by letter to the Director for Office of Natural 
Resources Revenue of his/her designee. The letter shall identify the 
valuation method to be used and contain a brief description of the 
procedure to be followed. The notification required by this section is a 
one-time notification due no later than the month the lessee first 
reports royalties on the Form MMS-4430 using a valuation method 
authorized by paragraphs (c)(2) (ii), (iii), (iv), or (v) of this 
section, and each time there is a change in a method under paragraphs 
(c)(2) (iv) or (v) of this section.
    (e) If ONRR determines that a lessee has not properly determined 
value, the lessee shall be liable for the difference, if any, between 
royalty payments made based upon the value it has used and the royalty 
payments that are due based upon the value established by ONRR. The 
lessee shall also be liable for interest computed pursuant to Sec. 
1218.202 of this chapter. If the lessee is entitled to a credit, ONRR 
will provide instructions for the taking of that credit.
    (f) The lessee may request a value determination from ONRR. In that 
event, the lessee shall propose to ONRR a value determination method, 
and may use that method in determining value for royalty purposes until 
ONRR issues its decision. The lessee shall submit all available data 
relevant to its proposal. The ONRR shall expeditiously determine the 
value based upon the lessee's proposal and any additional information 
ONRR deems necessary. That determination shall remain effective for the 
period stated therein. After ONRR issues its determination, the lessee 
shall make the adjustments in accordance with paragraph (e) of this 
section.
    (g) Notwithstanding any other provisions of this section, under no 
circumstances shall the value for royalty purposes be less than the 
gross proceeds accruing to the lessee for the disposition of produced 
coal less applicable provisions of paragraph (b)(5) of this section and 
less applicable allowances determined pursuant to Sec. Sec. 1206.258 
through 1206.262 and Sec. 1206.265 of this subpart.
    (h) The lessee is required to place coal in marketable condition at 
no cost to the Federal Government. Where the value established under 
this section is determined by a lessee's gross proceeds, that value 
shall be increased to the extent that the gross proceeds has been 
reduced because the purchaser, or any other person, is providing certain 
services, the cost of which ordinarily is the responsibility of the 
lessee to place the coal in marketable condition.
    (i) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. Absent 
contract revision or amendment, if the lessee fails

[[Page 812]]

to take proper or timely action to receive prices or benefits to which 
it is entitled, it must pay royalty at a value based upon that 
obtainable price or benefit. Contract revisions or amendments shall be 
in writing and signed by all parties to an arm's-length contract, and 
may be retroactively applied to value for royalty purposes for a period 
not to exceed two years, unless ONRR approves a longer period. If the 
lessee makes timely application for a price increase allowed under its 
contract but the purchaser refuses, and the lessee takes reasonable 
measures, which are documented, to force purchaser compliance, the 
lessee will owe no additional royalties unless or until monies or 
consideration resulting from the price increase are received. This 
paragraph shall not be construed to permit a lessee to avoid its royalty 
payment obligation in situations where a purchaser fails to pay, in 
whole or in part or timely, for a quantity of coal.
    (j) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by ONRR of value under this section 
shall be considered final or binding as against the Federal Government 
or its beneficiaries until the audit period is formally closed.
    (k) Certain information submitted to ONRR to support valuation 
proposals, including transportation, coal washing, or other allowances 
under Sec. 1206.265 of this subpart, is exempted from disclosure by the 
Freedom of Information Act, 5 U.S.C. 522. Any data specified by the Act 
to be privileged, confidential, or otherwise exempt shall be maintained 
in a confidential manner in accordance with applicable law and 
regulations. All requests for information about determinations made 
under this part are to be submitted in accordance with the Freedom of 
Information Act regulation of the Department of the Interior, 43 CFR 
part 2.

[54 FR 1523, Jan. 13, 1989, as amended at 55 FR 35433, Aug. 30, 1990; 57 
FR 52720, Nov. 5, 1992; 61 FR 5480, Feb. 12, 1996; 66 FR 45769, Aug. 30, 
2001]



Sec. 1206.258  Washing allowances--general.

    (a) For ad valorem leases subject to Sec. 1206.257 of this subpart, 
ONRR shall, as authorized by this section, allow a deduction in 
determining value for royalty purposes for the reasonable, actual costs 
incurred to wash coal, unless the value determined pursuant to Sec. 
1206.257 of this subpart was based upon like-quality unwashed coal. 
Under no circumstances will the authorized washing allowance and the 
transportation allowance reduce the value for royalty purposes to zero.
    (b) If ONRR determines that a lessee has improperly determined a 
washing allowance authorized by this section, then the lessee shall be 
liable for any additional royalties, plus interest determined in 
accordance with Sec. 1218.202 of this chapter, or shall be entitled to 
a credit without interest.
    (c) Lessees shall not disproportionately allocate washing costs to 
Federal leases.
    (d) No cost normally associated with mining operations and which are 
necessary for placing coal in marketable condition shall be allowed as a 
cost of washing.
    (e) Coal washing costs shall only be recognized as allowances when 
the washed coal is sold and royalties are reported and paid.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5480, Feb. 12, 1996; 64 
FR 43288, Aug. 10, 1999]



Sec. 1206.259  Determination of washing allowances.

    (a) Arm's-length contracts. (1) For washing costs incurred by a 
lessee under an arm's-length contract, the washing allowance shall be 
the reasonable actual costs incurred by the lessee for washing the coal 
under that contract, subject to monitoring, review, audit, and possible 
future adjustment. The lessee shall have the burden of demonstrating 
that its contract is arm's-length. ONRR' prior approval is not required 
before a lessee may deduct costs incurred under an arm's-length 
contract. The lessee must claim a washing allowance by reporting it as a 
separate line entry on the Form MMS-4430.

[[Page 813]]

    (2) In conducting reviews and audits, ONRR will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the washer for the 
washing. If the contract reflects more than the total consideration 
paid, then the ONRR may require that the washing allowance be determined 
in accordance with paragraph (b) of this section.
    (3) If ONRR determines that the consideration paid pursuant to an 
arm's-length washing contract does not reflect the reasonable value of 
the washing because of misconduct by or between the contracting parties, 
or because the lessee otherwise has breached its duty to the lessor to 
market the production for the mutual benefit of the lessee and the 
lessor, then ONRR shall require that the washing allowance be determined 
in accordance with paragraph (b) of this section. When ONRR determines 
that the value of the washing may be unreasonable, ONRR will notify the 
lessee and give the lessee an opportunity to provide written information 
justifying the lessee's washing costs.
    (4) Where the lessee's payments for washing under an arm's-length 
contract are not based on a dollar-per-unit basis, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent. 
Washing allowances shall be expressed as a cost per ton of coal washed.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length contract or has no contract, including those situations 
where the lessee performs washing for itself, the washing allowance will 
be based upon the lessee's reasonable actual costs. All washing 
allowances deducted under a non-arm's-length or no contract situation 
are subject to monitoring, review, audit, and possible future 
adjustment. The lessee must claim a washing allowance by reporting it as 
a separate line entry on the Form MMS-4430. When necessary or 
appropriate, ONRR may direct a lessee to modify its estimated or actual 
washing allowance.
    (2) The washing allowance for non-arm's-length or no contract 
situations shall be based upon the lessee's actual costs for washing 
during the reported period, including operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph (b)(2)(iv) 
(A) of this section, or a cost equal to the depreciable investment in 
the wash plant multiplied by the rate of return in accordance with 
paragraph (b)(2)(iv)(B) of this section. Allowable capital costs are 
generally those for depreciable fixed assets (including costs of 
delivery and installation of capital equipment) which are an integral 
part of the wash plant.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes, rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the wash 
plant; maintenance of equipment; maintenance labor; and other directly 
allocable and attributable maintenance expenses which the lessee can 
document.
    (iii) Overhead attributable and allocable to the operation and 
maintenance of the wash plant is an allowable expense. State and Federal 
income taxes and severance taxes, including royalities, are not 
allowable expenses.
    (iv) A lessee may use either paragraph (b)(2)(iv)(A) or (B) of this 
section. After a lessee has elected to use either method for a wash 
plant, the lessee may not later elect to change to the other alternative 
without approval of the ONRR.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the wash plant services, whichever is 
appropriate, or a unit of production method. After an election is made, 
the lessee may not change methods without ONRR approval. A change in 
ownership of a wash plant shall not alter the depreciation schedule 
established by the original operator/lessee for purposes of the 
allowance calculation. With or without a change in ownership, a wash 
plant shall be depreciated only once. Equipment shall not

[[Page 814]]

be depreciated below a reasonable salvage value.
    (B) ONRR shall allow as a cost an amount equal to the allowable 
capital investment in the wash plant multiplied by the rate of return 
determined pursuant to paragraph (b)(2)(v) of this section. No allowance 
shall be provided for depreciation. This alternative shall apply only to 
plants first placed in service or acquired after March 1, 1989.
    (v) The rate of return must be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return must be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3) The washing allowance for coal shall be determined based on the 
lessee's reasonable and actual cost of washing the coal. The lessee may 
not take an allowance for the costs of washing lease production that is 
not royalty bearing.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) The 
lessee must notify ONRR of an allowance based on incurred costs by using 
a separate line entry on the Form MMS-4430.
    (ii) ONRR may require that a lessee submit arm's-length washing 
contracts and related documents. Documents shall be submitted within a 
reasonable time, as determined by ONRR.
    (2) Non-arm's-length or no contract. (i) The lessee must notify ONRR 
of an allowance based on the incurred costs by using a separate line 
entry on the Form MMS-4430.
    (ii) For new washing facilities or arrangements, the lessee's 
initial washing deduction shall include estimates of the allowable coal 
washing costs for the applicable period. Cost estimates shall be based 
upon the most recently available operations data for the washing system 
or, if such data are not available, the lessee shall use estimates based 
upon industry data for similar washing systems.
    (iii) Upon request by ONRR, the lessee shall submit all data used to 
prepare the allowance deduction. The data shall be provided within a 
reasonable period of time, as determined by ONRR.
    (d) Interest and assessments. (1) If a lessee nets a washing 
allowance on the Form MMS-4430, then the lessee shall be assessed an 
amount up to 10 percent of the allowance netted not to exceed $250 per 
lease sales type code per sales period.
    (2) If a lessee erroneously reports a washing allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with Sec. 1218.202 of this chapter.
    (e) Adjustments. (1) If the actual coal washing allowance is less 
than the amount the lessee has taken on Form ONRR-4430 for each month 
during the allowance reporting period, the lessee shall pay additional 
royalties due plus interest computed under Sec. 1218.202 of this 
chapter from the date when the lessee took the deduction to the date the 
lessee repays the difference to ONNR. If the actual washing allowance is 
greater than the amount the lessee has taken on Form ONRR-4430 for each 
month during the allowance reporting period, the lessee shall be 
entitled to a credit without interest.
    (2) The lessee must submit a corrected Form ONRR-4430 to reflect 
actual costs, together with any payment, in accordance with instructions 
provided by ONNR.
    (f) Other washing cost determinations. The provisions of this 
section shall apply to determine washing costs when establishing value 
using a net-back valuation procedure or any other procedure that 
requires deduction of washing costs.

[54 FR 1523, Jan. 13, 1989, as amended at 57 FR 52720, Nov. 5, 1992; 61 
FR 5480, Feb. 12, 1996; 64 FR 43288, Aug. 10, 1999; 66 FR 45769, Aug. 
30, 2001; 73 FR 15891, Mar. 26, 2008; 76 FR 38561, July 1, 2011]



Sec. 1206.260  Allocation of washed coal.

    (a) When coal is subjected to washing, the washed coal must be 
allocated to the leases from which it was extracted.
    (b) When the net output of coal from a washing plant is derived from 
coal

[[Page 815]]

obtained from only one lease, the quantity of washed coal allocable to 
the lease will be based on the net output of the washing plant.
    (c) When the net output of coal from a washing plant is derived from 
coal obtained from more than one lease, unless determined otherwise by 
BLM, the quantity of net output of washed coal allocable to each lease 
will be based on the ratio of measured quantities of coal delivered to 
the washing plant and washed from each lease compared to the total 
measured quantities of coal delivered to the washing plant and washed.



Sec. 1206.261  Transportation allowances--general.

    (a) For ad valorem leases subject to Sec. 1206.257 of this subpart, 
where the value for royalty purposes has been determined at a point 
remote from the lease or mine, ONRR shall, as authorized by this 
section, allow a deduction in determining value for royalty purposes for 
the reasonable, actual costs incurred to:
    (1) Transport the coal from a Federal lease to a sales point which 
is remote from both the lease and mine; or
    (2) Transport the coal from a Federal lease to a wash plant when 
that plant is remote from both the lease and mine and, if applicable, 
from the wash plant to a remote sales point. In-mine transportation 
costs shall not be included in the transportation allowance.
    (b) Under no circumstances will the authorized washing allowance and 
the transportation allowance reduce the value for royalty purposes to 
zero.
    (c)(1) When coal transported from a mine to a wash plant is eligible 
for a transportation allowance in accordance with this section, the 
lessee is not required to allocate transportation costs between the 
quantity of clean coal output and the rejected waste material. The 
transportation allowance shall be authorized for the total production 
which is transported. Transportation allowances shall be expressed as a 
cost per ton of cleaned coal transported.
    (2) For coal that is not washed at a wash plant, the transportation 
allowance shall be authorized for the total production which is 
transported. Transportation allowances shall be expressed as a cost per 
ton of coal transported.
    (3) Transportation costs shall only be recognized as allowances when 
the transported coal is sold and royalties are reported and paid.
    (d) If, after a review and/or audit, ONRR determines that a lessee 
has improperly determined a transportation allowance authorized by this 
section, then the lessee shall pay any additional royalties, plus 
interest, determined in accordance with Sec. 1218.202 of this chapter, 
or shall be entitled to a credit, without interest.
    (e) Lessees shall not disproportionately allocate transportation 
costs to Federal leases.

[54 FR 1523, Jan. 13, 1989, as amended at 61 FR 5481, Feb. 12, 1996; 64 
FR 43288, Aug. 10, 1999]



Sec. 1206.262  Determination of transportation allowances.

    (a) Arm's-length contracts. (1) For transportation costs incurred by 
a lessee pursuant to an arm's-length contract, the transportation 
allowance shall be the reasonable, actual costs incurred by the lessee 
for transporting the coal under that contract, subject to monitoring, 
review, audit, and possible future adjustment. The lessee shall have the 
burden of demonstrating that its contract is arm's-length. The lessee 
must claim a transportation allowance by reporting it as a separate line 
entry on the Form MMS-4430.
    (2) In conducting reviews and audits, ONRR will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the transporter for the 
transportation. If the contract reflects more than the total 
consideration paid, then the ONRR may require that the transportation 
allowance be determined in accordance with paragraph (b) of this 
section.
    (3) If ONRR determines that the consideration paid pursuant to an 
arm's-length transportation contract does not reflect the reasonable 
value of the transportation because of misconduct by or between the 
contracting parties, or because the lessee otherwise has

[[Page 816]]

breached its duty to the lessor to market the production for the mutual 
benefit of the lessee and the lessor, then ONRR shall require that the 
transportation allowance be determined in accordance with paragraph (b) 
of this section. When ONRR determines that the value of the 
transportation may be unreasonable, ONRR will notify the lessee and give 
the lessee an opportunity to provide written information justifying the 
lessee's transportation costs.
    (4) Where the lessee's payments for transportation under an arm's-
length contract are not based on a dollar-per-unit basis, the lessee 
shall convert whatever consideration is paid to a dollar value 
equivalent for the purposes of this section.
    (b) Non-arm's-length or no contract--(1) If a lessee has a non-
arm's-length contract or has no contract, including those situations 
where the lessee performs transportation services for itself, the 
transportation allowance will be based upon the lessee's reasonable 
actual costs. All transportation allowances deducted under a non-arm's-
length or no contract situation are subject to monitoring, review, 
audit, and possible future adjustment. The lessee must claim a 
transportation allowance by reporting it as a separate line entry on the 
Form MMS-4430. When necessary or appropriate, ONRR may direct a lessee 
to modify its estimated or actual transportation allowance deduction.
    (2) The transportation allowance for non-arm's-length or no-contract 
situations shall be based upon the lessee's actual costs for 
transportation during the reporting period, including operating and 
maintenance expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the depreciable 
investment in the transportation system multiplied by the rate of return 
in accordance with paragraph (b)(2)(iv)(B) of this section. Allowable 
capital costs are generally those for depreciable fixed assets 
(including costs of delivery and installation of capital equipment) 
which are an integral part of the transportation system.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
transportation system; maintenance of equipment; maintenance labor; and 
other directly allocable and attributable maintenance expenses which the 
lessee can document.
    (iii) Overhead attributable and allocable to the operation and 
maintenance of the transportation system is an allowable expense. State 
and Federal income taxes and severance taxes and other fees, including 
royalties, are not allowable expenses.
    (iv) A lessee may use either paragraph (b)(2)(iv)(A) or paragraph 
(b)(2)(iv)(B) of this section. After a lessee has elected to use either 
method for a transportation system, the lessee may not later elect to 
change to the other alternative without approval of ONRR.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the transportation system services, 
whichever is appropriate, or a unit of production method. After an 
election is made, the lessee may not change methods without ONRR 
approval. A change in ownership of a transportation system shall not 
alter the depreciation schedule established by the original transporter/
lessee for purposes of the allowance calculation. With or without a 
change in ownership, a transportation system shall be depreciated only 
once. Equipment shall not be depreciated below a reasonable salvage 
value.
    (B) ONRR shall allow as a cost an amount equal to the allowable 
capital investment in the transportation system multiplied by the rate 
of return determined pursuant to paragraph (b)(2)(B)(v) of this section. 
No allowance shall be provided for depreciation. This alternative shall 
apply only to transportation facilities first placed in service or 
acquired after March 1, 1989.

[[Page 817]]

    (v) The rate of return must be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return must be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month for which the allowance is applicable. The rate must be 
redetermined at the beginning of each subsequent calendar year.
    (3) A lessee may apply to ONRR for exception from the requirement 
that it compute actual costs in accordance with paragraphs (b)(1) and 
(b)(2) of this section. ONRR will grant the exception only if the lessee 
has a rate for the transportation approved by a Federal agency or by a 
State regulatory agency (for Federal leases). ONRR shall deny the 
exception request if it determines that the rate is excessive as 
compared to arm's-length transportation charges by systems, owned by the 
lessee or others, providing similar transportation services in that 
area. If there are no arm's-length transportation charges, ONRR shall 
deny the exception request if:
    (i) No Federal or State regulatory agency costs analysis exists and 
the Federal or State regulatory agency, as applicable, has declined to 
investigate under ONRR timely objections upon filing; and
    (ii) The rate significantly exceeds the lessee's actual costs for 
transportation as determined under this section.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) The 
lessee must notify ONRR of an allowance based on incurred costs by using 
a separate line entry on the Form MMS-4430.
    (ii) ONRR may require that a lessee submit arm's-length 
transportation contracts, production agreements, operating agreements, 
and related documents. Documents shall be submitted within a reasonable 
time, as determined by ONRR.
    (2) Non-arm's-length or no contract--(i) The lessee must notify ONRR 
of an allowance based on the incurred costs by using a separate line 
entry on Form MMS-4430.
    (ii) For new transportation facilities or arrangements, the lessee's 
initial deduction shall include estimates of the allowable coal 
transportation costs for the applicable period. Cost estimates shall be 
based upon the most recently available operations data for the 
transportation system or, if such data are not available, the lessee 
shall use estimates based upon industry data for similar transportation 
systems.
    (iii) Upon request by ONRR, the lessee shall submit all data used to 
prepare the allowance deduction. The data shall be provided within a 
reasonable period of time, as determined by ONRR.
    (iv) If the lessee is authorized to use its Federal- or State-
agency-approved rate as its transportation cost in accordance with 
paragraph (b)(3) of this section, it shall follow the reporting 
requirements of paragraph (c)(1) of this section.
    (d) Interest and assessments. (1) If a lessee nets a transportation 
allowance on Form MMS-4430, the lessee shall be assessed an amount of up 
to 10 percent of the allowance netted not to exceed $250 per lease sales 
type code per sales period.
    (2) If a lessee erroneously reports a transportation allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with Sec. 1218.202 of this chapter.
    (e) Adjustments. (1) If the actual coal transportation allowance is 
less than the amount the lessee has taken on Form MMS-4430 for each 
month during the allowance reporting period, the lessee shall pay 
additional royalties due plus interest computed under Sec. 1218.202 of 
this chapter from the date when the lessee took the deduction to the 
date the lessee repays the difference to ONRR. If the actual 
transportation allowance is greater than amount the lessee has taken on 
Form MMS-4430 for each month during the allowance reporting period, the 
lessee shall be entitled to a credit without interest.
    (2) The lessee must submit a corrected Form MMS-4430 to reflect 
actual costs, together with any payments, in accordance with 
instructions provided by ONRR.
    (f) Other transportation cost determinations. The provisions of this 
section shall apply to determine transportation costs when establishing 
value

[[Page 818]]

using a net-back valuation procedure or any other procedure that 
requires deduction of transportation costs.

[54 FR 1523, Jan. 13, 1989, as amended at 57 FR 41864, Sept. 14, 1992; 
57 FR 52720, Nov. 5, 1992; 61 FR 5481, Feb. 12, 1996; 64 FR 43288, Aug. 
10, 1999; 66 FR 45769, Aug. 30, 2001; 73 FR 15891, Mar. 26, 2008]



Sec. 1206.263  [Reserved]



Sec. 1206.264  In-situ and surface gasification and liquefaction operations.

    If an ad valorem Federal coal lease is developed by in-situ or 
surface gasification or liquefaction technology, the lessee shall 
propose the value of coal for royalty purposes to ONRR. The ONRR will 
review the lessee's proposal and issue a value determination. The lessee 
may use its proposed value until ONRR issues a value determination.

[54 FR 1523, Jan. 13, 1989, as amended at 65 FR 43289, Aug. 10, 1999]



Sec. 1206.265  Value enhancement of marketable coal.

    If, prior to use, sale, or other disposition, the lessee enhances 
the value of coal after the coal has been placed in marketable condition 
in accordance with Sec. 1206.257(h) of this subpart, the lessee shall 
notify ONRR that such processing is occurring or will occur. The value 
of that production shall be determined as follows:
    (a) A value established for the feedstock coal in marketable 
condition by application of the provisions of Sec. 1206.257(c)(2)(i-iv) 
of this subpart; or,
    (b) In the event that a value cannot be established in accordance 
with subsection (a), then the value of production will be determined in 
accordance with Sec. 1206.257(c)(2)(v) of this subpart and the value 
shall be the lessee's gross proceeds accruing from the disposition of 
the enhanced product, reduced by ONRR-approved processing costs and 
procedures including a rate of return on investment equal to two times 
the Standard and Poor's BBB bond rate applicable under Sec. 
1206.259(b)(2)(v) of this subpart.



                     Subpart G_Other Solid Minerals



Sec. 1206.301  Value basis for royalty computation.

    (a) The gross value for royalty purposes shall be the sale or 
contract unit price times the number of units sold, Provided, however, 
That where the authorized officer determines:
    (1) That a contract of sale or other business arrangement between 
the lessee and a purchaser of some or all of the commodities produced 
from the lease is not a bona fide transaction between independent 
parties because it is based in whole or in part upon considerations 
other than the value of the commodities, or
    (2) That no bona fide sales price is received for some or all of 
such commodities because the lessee is consuming them, the authorized 
officer shall determine their gross value, taking into account: (i) All 
prices received by the lessee in all bona fide transactions, (ii) Prices 
paid for commodities of like quality produced from the same general 
area, and (iii) Such other relevant factors as the authorized officer 
may deem appropriate; and Provided further, That in a situation where an 
estimated value is used, the authorized officer shall require the 
payment of such additional royalties, or allow such credits or refunds 
as may be necessary to adjust royalty payment to reflect the actual 
gross value.
    (b) The lessee is required to certify that the values reported for 
royalty purposes are bona fide sales not involving considerations other 
than the sale of the mineral, and he may be required by the authorized 
officer to supply supporting information.

[43 FR 10341, Mar. 13, 1978. Redesignated at 48 FR 36588, Aug. 12, 1983, 
and amended at 48 FR 44795, Sept. 30, 1983. Further redesignated at 51 
FR 15212, Apr. 22, 1986. Redesignated at 53 FR 39461, Oct. 7, 1988]



                     Subpart H_Geothermal Resources

    Source: 72 FR 24459, May 2, 2007, unless otherwise noted.

[[Page 819]]



Sec. 1206.350  What is the purpose of this subpart?

    (a) This subpart applies to all geothermal resources produced from 
Federal geothermal leases issued pursuant to the Geothermal Steam Act of 
1970 (GSA), as amended by the Energy Policy Act of 2005 (EPAct) (30 
U.S.C. 1001 et seq.). The purpose of this subpart is to prescribe how to 
calculate royalties and direct use fees for geothermal production.
    (b) The ONRR may audit and adjust all royalty and fee payments.
    (c) In some cases, the regulations in this subpart may be 
inconsistent with a statute, settlement agreement, written agreement, or 
lease provision. If this happens, the statute, settlement agreement, 
written agreement, or lease provision will govern to the extent of the 
inconsistency. For purposes of this paragraph, the following definitions 
apply:
    (1) ``Settlement agreement'' means a settlement agreement between 
the United States and a lessee resulting from administrative or judicial 
litigation.
    (2) ``Written agreement'' means a written agreement between the 
lessee and the ONRR Director or Assistant Secretary, Policy, Management 
and Budget of the Department of the Interior that:
    (i) Establishes a method to determine the royalty from any lease 
that ONRR expects at least would approximate the value or royalty 
established under this subpart; and
    (ii) Includes a value or gross proceeds determination under Sec. 
1206.364 of this subpart.



Sec. 1206.351  What definitions apply to this subpart?

    For purposes of this subpart, the following terms have the meanings 
indicated.
    Affiliate means a person who controls, is controlled by, or is under 
common control with another person. For purposes of this subpart:
    (1) Ownership or common ownership of more than 50 percent of the 
voting securities, or instruments of ownership, or other forms of 
ownership, of another person constitutes control. Ownership of less than 
10 percent constitutes a presumption of noncontrol that ONRR may rebut.
    (2) If there is ownership or common ownership of 10 through 50 
percent of the voting securities, or instruments of ownership, or other 
forms of ownership of another person, ONRR will consider the following 
factors in determining whether there is control under the circumstances 
of a particular case:
    (i) The extent to which there are common officers or directors;
    (ii) With respect to the voting securities, or instruments of 
ownership, or other forms of ownership: the percentage of ownership or 
common ownership, the relative percentage of ownership or common 
ownership compared to the percentage(s) of ownership by other persons, 
whether a person is the greatest single owner, or whether there is an 
opposing voting bloc of greater ownership;
    (iii) Operation of a lease, plant, pipeline, or other facility;
    (iv) The extent of participation by other owners in operations and 
day-to-day management of a lease, plant, pipeline, or other facility; 
and
    (v) Other evidence of power to exercise control over or common 
control with another person.
    (3) Regardless of any percentage of ownership or common ownership, 
relatives, either by blood or marriage, are affiliates.
    Allowance means a deduction in determining value for royalty 
purposes.
    Arm's-length contract means a contract or agreement between 
independent persons who are not affiliates and who have opposing 
economic interests regarding that contract. To be considered arm's 
length for any production month, a contract must satisfy this definition 
for that month, as well as when the contract was executed.
    Audit means a review, conducted in accordance with generally 
accepted accounting and auditing standards, of royalty or fee payment 
compliance activities of lessees or other interest holders who pay 
royalties, fees, rents, or bonuses on Federal geothermal leases.
    Byproducts means minerals (exclusive of oil, hydrocarbon gas, and 
helium), found in solution or in association with geothermal steam, that 
no person

[[Page 820]]

would extract and produce by themselves because they are worth less than 
75 percent of the value of the geothermal steam or because extraction 
and production would be too difficult.
    Byproduct recovery facility means a facility where byproducts are 
placed in marketable condition.
    Byproduct transportation allowance means an allowance for the 
reasonable, actual costs of moving byproducts to a point of sale or 
delivery off the lease, unit area, or communitized area, or away from a 
byproduct recovery facility. The byproduct transportation allowance does 
not include gathering costs. You must report a byproduct transportation 
allowance as a separate discrete field on the Form MMS-2014.
    Class I lease means:
    (1) A lease that BLM issued before August 8, 2005, for which the 
lessee has not converted the royalty rate terms under 43 CFR 3212.25; or
    (2) A lease that BLM issued in response to an application that was 
pending on August 8, 2005, for which the lessee has not made an election 
under 43 CFR 3200.8(b).
    Class II lease means:
    A lease that BLM issued after August 8, 2005, except for a lease 
issued in response to an application that was pending on August 8, 2005, 
for which the lessee does not make an election under 43 CFR 3200.8(b).
    Class III lease means:
    A lease that BLM issued before August 8, 2005, for which the lessee 
has converted to the royalty rate or direct use fee terms under 43 CFR 
3212.25.
    Commercial production or generation of electricity means generation 
of electricity that is sold or is subject to sale, including the 
electricity or energy that is reasonably required to produce the 
resource used in production of electricity for sale or to convert 
geothermal energy into electrical energy for sale.
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Deduction means a subtraction the lessee uses to determine the value 
of geothermal resources produced from a Class I lease that the lessee 
uses to generate electricity.
    Delivered electricity means the amount of electricity in kilowatt-
hours delivered to the purchaser.
    Direct use means the utilization of geothermal resources for 
commercial, residential, agricultural, public facilities, or other 
energy needs, other than the commercial production or generation of 
electricity.
    Direct use facility means a facility that uses the heat or other 
energy of the geothermal resource for direct use purposes.
    Electrical facility means a power plant or other facility that uses 
a geothermal resource to generate electricity.
    Field means the land surface vertically projected over a subsurface 
geothermal reservoir encompassing at least the outermost boundaries of 
all geothermal accumulations known to be within that reservoir. 
Geothermal fields are usually given names and their official boundaries 
are often designated by regulatory agencies in the respective States in 
which the fields are located.
    Gathering means the movement of lease production from the wellhead 
to the point of utilization.
    Generating deduction means a deduction for the lessee's reasonable, 
actual costs of generating plant tailgate electricity.
    Geothermal resources means:
    (1) All products of geothermal processes, including indigenous 
steam, hot water, and hot brines;
    (2) Steam and other gases, hot water, and hot brines resulting from 
water, gas, or other fluids artificially introduced into geothermal 
formations;
    (3) Heat or other associated energy found in geothermal formations; 
and
    (4) Any byproducts.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to a geothermal lessee for the sale of 
electricity or geothermal resource. Gross proceeds includes, but is not 
limited to:
    (1) Payments to the lessee for certain services such as effluent 
injection, field operation and maintenance, drilling or workover of 
wells, or field gathering to the extent that the lessee is obligated

[[Page 821]]

to perform such functions at no cost to the Federal Government;
    (2) Reimbursements for production taxes and other taxes. Tax 
reimbursements are part of gross proceeds accruing to a lessee even 
though the Federal royalty interest may be exempt from taxation; and
    (3) Any monies and other consideration, including the forms of 
consideration identified in this paragraph, to which a lessee is 
contractually or legally entitled but which it does not seek to collect 
through reasonable efforts.
    Lease means a geothermal lease issued under the authority of the 
GSA, unless the context indicates otherwise.
    Lessee (you) means any person to whom the United States issues a 
geothermal lease, and any person who has been assigned an obligation to 
make royalty, fee, or other payments required by the lease. This 
includes any person who has an interest in a geothermal lease as well as 
an operator or payor who has no interest in the lease but who has 
assumed the royalty, fee, or other payment responsibility. This also 
includes any affiliate of the lessee that uses the geothermal resource 
to generate electricity, in a direct use process, or to recover 
byproducts, or any affiliate that sells or transports lease production.
    Marketable condition means lease products that are sufficiently free 
from impurities and otherwise in a condition that they will be accepted 
by a purchaser under a sales contract typical for the disposition from 
the field or area of such lease products.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture (when established as a 
separate entity).
    Plant parasitic electricity means electricity used to operate a 
power plant that is used for commercial production or generation of 
electricity.
    Plant tailgate electricity means the amount of electricity in 
kilowatt-hours generated by a power plant exclusive of plant parasitic 
electricity, but inclusive of any electricity generated by the power 
plant and returned to the lease for lease operations. Plant tailgate 
electricity should be measured at, or calculated for, the high voltage 
side of the transformer in the plant switchyard.
    Point of utilization means the power plant or direct use facility in 
which the geothermal resource is utilized.
    Public purpose means a program carried out by a State, tribal, or 
local government for the purpose of providing facilities or services for 
the benefit of the public in connection with, but not limited to, public 
health, safety or welfare, other than the commercial generation of 
electricity. Use of lands or facilities for habitation, cultivation, 
trade or manufacturing is permissible only when necessary for and 
integral to (i.e., an essential part of) the public purpose.
    Public safety or welfare means a program carried out or promoted by 
a public agency for public purposes involving, directly or indirectly, 
protection, safety, and law enforcement activities, and the criminal 
justice system of a given political area. Public safety or welfare may 
include, but is not limited to, programs carried out by:
    (1) Public police departments;
    (2) Sheriffs' offices;
    (3) The courts;
    (4) Penal and correctional institutions (including juvenile 
facilities);
    (5) State and local civil defense organizations; and
    (6) Fire departments and rescue squads (including volunteer fire 
departments and rescue squads supported in whole or in part with public 
funds).
    Reasonable alternative fuel means a conventional fuel (such as coal, 
oil, gas, or wood) that would normally be used as a source of heat in 
direct use operations.
    Secretary means the Secretary of the Interior or any person duly 
authorized to exercise the powers vested in that office.
    Transmission deduction means a deduction for the lessee's reasonable 
actual costs incurred to wheel or transmit the electricity from the 
lessee's power plant to the purchaser's delivery point.
    Wheeling means the transmission of electricity from a power plant to 
the point of delivery.

[[Page 822]]



Sec. 1206.352  How do I calculate the royalty due on geothermal resources used 

for commercial production or generation of electricity?

    (a) If you sold geothermal resources produced from a Class I, II, or 
III lease at arm's length that the purchaser uses to generate 
electricity, then the royalty on the geothermal resources is the gross 
proceeds accruing to you from the sale of the geothermal resource to the 
arm's-length purchaser multiplied by either:
    (1) The royalty rate in your lease; or
    (2) The royalty rate that BLM prescribes or calculates under 43 CFR 
3211.17. See Sec. 1206.361 for additional provisions applicable to 
determining gross proceeds under arm's-length sales.
    (b) If you use the geothermal resource in your own power plant for 
the generation and sale of electricity, the following provisions apply
    (1) For Class I leases, you must determine the royalty on produced 
geothermal resources in accordance with the first applicable of the 
following paragraphs:
    (i) The gross proceeds accruing to you from the arm's-length sale of 
the electricity less applicable deductions determined under Sec. 
1206.353 and Sec. 1206.354 of this part, multiplied by the royalty rate 
in your lease. See Sec. 1206.361 for additional provisions applicable 
to determining gross proceeds under arm's-length sales. Under no 
circumstances may the deductions reduce the royalty value of the 
geothermal resource to zero; or
    (ii) A royalty determined by any other reasonable method approved by 
ONRR under Sec. 1206.364 of this subpart.
    (2) For Class II and Class III leases, the royalty on geothermal 
resources produced is your gross proceeds from the sale of electricity 
multiplied by the royalty rate BLM prescribed for your lease under 43 
CFR 3211.17. See Sec. 1206.361 for additional provisions applicable to 
determining gross proceeds under arm's-length sales. You may not reduce 
gross proceeds by any deductions.



Sec. 1206.353  How do I determine transmission deductions?

    (a) If you determine the value of your geothermal resources under 
Sec. 1206.352(b)(1)(i) of this subpart, you may subtract a transmission 
deduction from the gross proceeds you received for the sale of 
electricity to determine the plant tailgate value of the electricity.
    (1) The transmission deduction consists of either or both of two 
components:
    (i) Transmission line costs as determined under paragraph (b) of 
this section; and
    (ii) Wheeling costs if the electricity is transmitted across a third 
party's transmission line under an arm's-length wheeling agreement.
    (2) You may deduct the actual costs you (including your 
affiliate(s)) incur for transmitting electricity under your arm's-length 
wheeling contract.
    (b) To determine your transmission line cost, you must follow the 
requirements of paragraphs (b)(1) and (b)(2) of this section.
    (1) Your transmission line costs are your actual costs associated 
with the construction and operation of a transmission line for the 
purpose of transmitting electricity attributable and allocable to your 
power plant utilizing Federal geothermal resources.
    (i) You must determine the monthly transmission line cost component 
of the transmission deduction by multiplying the annual transmission 
line cost rate (in dollars per kilowatt-hour) by the amount of 
electricity delivered for the reporting month.
    (ii) You must redetermine the transmission line cost rate annually 
either at the beginning of the same month of the year in which the power 
plant was placed into service or at a time concurrent with the beginning 
of your annual corporate accounting period. The period you select must 
coincide with the same period you chose for the generating deduction 
under Sec. 1206.354(b)(1). After you choose a deduction period, you may 
not later elect to use a different deduction period without ONRR 
approval.
    (2) Your actual transmission line costs during the reporting period 
include:
    (i) Operating and maintenance expenses under paragraphs (d) and (e) 
of this section;
    (ii) Overhead under paragraph (f) of this section; and either

[[Page 823]]

    (iii) Depreciation under paragraphs (g) and (h) of this section and 
a return on undepreciated capital investment under paragraphs (g) and 
(i) of this section or
    (iv) A return on the capital investment in the transmission line 
under paragraphs (g) and (j) of this section.
    (c)(1) Allowable capital costs under paragraph (b) of this section 
are generally those for depreciable fixed assets (including costs of 
delivery and installation of capital equipment) that are an integral 
part of the transmission line.
    (2)(i) You may include a return on capital you invested in the 
purchase of real estate for transmission facilities if:
    (A) Such purchase is necessary; and
    (B) The surface is not part of the Federal lease.
    (ii) The rate of return will be the same rate determined under 
paragraph (k) of this section.
    (d) Allowable operating expenses include:
    (1) Operations supervision and engineering;
    (2) Operations labor;
    (3) Fuel;
    (4) Utilities;
    (5) Materials;
    (6) Ad valorem property taxes;
    (7) Rent;
    (8) Supplies; and
    (9) Any other directly allocable and attributable operating or 
maintenance expense that you can document.
    (e) Allowable maintenance expenses include:
    (1) Maintenance of the transmission line;
    (2) Maintenance of equipment;
    (3) Maintenance labor; and
    (4) Other directly allocable and attributable maintenance expenses 
that you can document.
    (f) Overhead directly attributable and allocable to the operation 
and maintenance of the transmission line is an allowable expense. State 
and Federal income taxes and severance taxes and other fees, including 
royalties, are not allowable expenses.
    (g) To compute costs associated with capital investment, a lessee 
may use either depreciation with a return on undepreciated capital 
investment, or a return on capital investment in the transmission line. 
After a lessee has elected to use either method, the lessee may not 
later elect to change to the other alternative without ONRR approval.
    (h)(1) To compute depreciation, you must use a straight-line 
depreciation method based on the life of the geothermal project, usually 
the term of the electricity sales contract, or other depreciation period 
acceptable to ONRR. You may not depreciate equipment below a reasonable 
salvage value.
    (2) A change in ownership of a transmission line does not alter the 
depreciation schedule established by the original lessee-owner for 
purposes of computing transmission line costs.
    (3) With or without a change in ownership, you may depreciate a 
transmission line only once.
    (i) To calculate a return on undepreciated capital investment, 
multiply the remaining undepreciated capital balance as of the beginning 
of the period for which you are calculating the transmission deduction 
by the rate of return provided in paragraph (k) of this section.
    (j) To compute a return on capital investment in the transmission 
line, multiply the allowable capital investment in the transmission line 
by the rate of return determined pursuant to paragraph (k) of this 
section. There is no allowance for depreciation.
    (k) The rate of return must be 2.0 multiplied by the industrial rate 
associated with Standard & Poor's BBB rating. The BBB rate must be the 
monthly average rate as published in Standard & Poor's Bond Guide for 
the first month for which the allowance is applicable. Redetermine the 
rate at the beginning of each subsequent calendar year.
    (l) Calculate the deduction for transmission costs based on your 
cost of transmitting electricity through each individual transmission 
line.
    (m)(1) For new transmission facilities or arrangements, base your 
initial deduction on estimates of allowable electricity transmission 
costs for the applicable period. Use the most recently available 
operations data for the transmission line or, if such data are not

[[Page 824]]

available, use estimates based on data for similar transmission lines.
    (2) When actual cost information is available, you must amend your 
prior Form MMS-2014 reports to reflect actual transmission costs 
deductions for each month for which you reported and paid based on 
estimated transmission costs. You must pay any additional royalties due 
(together with interest computed under Sec. 1218.302 of this chapter). 
You are entitled to a credit for or refund of any overpaid royalties.
    (n) In conducting reviews and audits, ONRR may require you to submit 
arm's-length transmission contracts, production agreements, operating 
agreements, and related documents and all other data used to calculate 
the deduction. You must comply with any such requirements within the 
time ONRR specifies. Recordkeeping requirements are found at part 1212 
of this chapter.
    (o) At the completion of transmission line dismantlement and salvage 
operations, you may report a credit for or request a refund of royalties 
in an amount equal to the royalty rate times the amount by which actual 
transmission line dismantlement costs exceed actual income attributable 
to salvage of the transmission line.



Sec. 1206.354  How do I determine generating deductions?

    (a) If you determine the value of your geothermal resources under 
Sec. 1206.352(b)(1)(i) of this subpart, you may deduct your reasonable 
actual costs incurred to generate electricity from the plant tailgate 
value of the electricity (usually the transmission-reduced value of the 
delivered electricity). You may deduct the actual costs you incur for 
generating electricity under your arm's-length power plant contract.
    (b)(1) You must base your generating costs deduction on your actual 
annual costs associated with the construction and operation of a 
geothermal power plant.
    (i) You must determine your monthly generating deduction by 
multiplying the annual generating cost rate (in dollars per kilowatt-
hour) by the amount of plant tailgate electricity measured (or computed) 
for the reporting month. The generating cost rate is determined from the 
annual amount of your plant tailgate electricity.
    (ii) You must redetermine your generating cost rate annually either 
at the beginning of the same month of the year in which the power plant 
was placed into service or at a time concurrent with the beginning of 
your annual corporate accounting period. The period you select must 
coincide with the same period chosen for the transmission deduction 
under Sec. 1206.353(b)(1). After you choose a deduction period, you may 
not later elect to use a different deduction period without ONRR 
approval.
    (2) Your generating costs are your actual power plant costs during 
the reporting period, including:
    (i) Operating and maintenance expenses under paragraphs (d) and (e) 
of this section;
    (ii) Overhead under paragraph (f) of this section; and either
    (iii) Depreciation under paragraphs (g) and (h) of this section and 
a return on undepreciated capital investment under paragraphs (g) and 
(i) of this section; or
    (iv) A return on capital investment in the power plant under 
paragraphs (g) and (j) of this section.
    (c)(1) Allowable capital costs under paragraph (b) of this section 
are generally those for depreciable fixed assets (including costs of 
delivery and installation of capital equipment) that are an integral 
part of the power plant or are required by the design specifications of 
the power conversion cycle.
    (2)(i) You may include a return on capital you invested in the 
purchase of real estate for a power plant site if:
    (A) The purchase is necessary; and,
    (B) The surface is not part of the Federal lease.
    (ii) The rate of return will be the same rate determined under 
paragraph (k) of this section.
    (3) You may not deduct the costs of gathering systems and other 
production-related facilities.
    (d) Allowable operating expenses include:
    (1) Operations supervision and engineering;
    (2) Operations labor;

[[Page 825]]

    (3) Auxiliary fuel and/or utilities used to operate the power plant 
during down time;
    (4) Utilities;
    (5) Materials;
    (6) Ad valorem property taxes;
    (7) Rent;
    (8) Supplies; and
    (9) Any other directly allocable and attributable operating expense.
    (e) Allowable maintenance expenses include:
    (1) Maintenance of the power plant;
    (2) Maintenance of equipment;
    (3) Maintenance labor; and
    (4) Other directly allocable and attributable maintenance expenses 
that you can document.
    (f) Overhead directly attributable and allocable to the operation 
and maintenance of the power plant is an allowable expense. State and 
Federal income taxes and severance taxes and other fees, including 
royalties, are not allowable expenses.
    (g) To compute costs associated with capital investment, a lessee 
may use either depreciation with a return on undepreciated capital 
investment, or a return on capital investment in the power plant. After 
a lessee has elected to use either method, the lessee may not later 
elect to change to the other alternative without ONRR approval.
    (h)(1) To compute depreciation, you must use a straight-line 
depreciation method based on the life of the geothermal project, usually 
the term of the electricity sales contract, or other depreciation period 
acceptable to ONRR. You may not depreciate equipment below a reasonable 
salvage value.
    (2) A change in ownership of the power plant does not alter the 
depreciation schedule established by the original lessee-owner for 
purposes of computing generating costs.
    (3) With or without a change in ownership, you may depreciate a 
power plant only once.
    (i) To calculate a return on undepreciated capital investment, 
multiply the remaining undepreciated capital balance as of the beginning 
of the period for which you are calculating the generating deduction 
allowance by the rate of return provided in paragraph (k) of this 
section.
    (j) To compute a return on capital investment in the power plant, 
multiply the allowable capital investment in the power plant by the rate 
of return determined pursuant to paragraph (k) of this section. There is 
no allowance for depreciation.
    (k) The rate of return must be 2.0 multiplied by the industrial rate 
associated with Standard & Poor's BBB rating. The BBB rate must be the 
monthly average rate as published in Standard & Poor's Bond Guide for 
the first month for which the allowance is applicable. You must 
redetermine the rate at the beginning of each subsequent calendar year.
    (l) Calculate the deduction for generating costs based on your cost 
of generating electricity through each individual power plant.
    (m)(1) For new power plants or arrangements, base your initial 
deduction on estimates of allowable electricity generation costs for the 
applicable period. Use the most recently available operations data for 
the power plant or, if such data are not available, use estimates based 
on data for similar power plants.
    (2) When actual cost information is available, you must amend your 
prior Form MMS-2014 reports to reflect actual generating cost deductions 
for each month for which you reported and paid based on estimated 
generating costs. You must pay any additional royalties due (together 
with interest computed under Sec. 1218.302 of this chapter). You are 
entitled to a credit for or refund of any overpaid royalties.
    (n) In conducting reviews and audits, ONRR may require you to submit 
arm's-length power plant contracts, production agreements, operating 
agreements, related documents and all other data used to calculate the 
deduction. You must comply with any such requirements within the time 
ONRR specifies. Recordkeeping requirements are found at part 1212 of 
this chapter.
    (o) At the completion of power plant dismantlement and salvage 
operations, you may report a credit for or request a refund of royalty 
in an amount equal to the royalty rate times the amount

[[Page 826]]

by which actual power plant dismantlement costs exceed actual income 
attributable to salvage of the power plant.



Sec. 1206.355  How do I calculate royalty due on geothermal resources I sell 

at arm's length to a purchaser for direct use?

    If you sell geothermal resources produced from Class I, II, or III 
leases at arm's length to a purchaser for direct use, then the royalty 
on the geothermal resource is the gross proceeds accruing to you from 
the sale of the geothermal resource to the arm's-length purchaser 
multiplied by the royalty rate in your lease or that BLM prescribes 
under 43 CFR 3211.18. See Sec. 1206.361 for additional provisions 
applicable to determining gross proceeds under arm's-length sales.



Sec. 1206.356  How do I calculate royalty or fees due on geothermal resources 

I use for direct use purposes?

    If you use the geothermal resource for direct use:
    (a) For Class I leases, you must determine the royalty due on 
geothermal resources in accordance with the first applicable of the 
following three paragraphs.
    (1) The weighted average of the gross proceeds established in arm's-
length contracts for the purchase of significant quantities of 
geothermal resources to operate the lessee's same direct-use facility 
multiplied by the royalty rate in your lease. In evaluating the 
acceptability of arm's-length contracts, the following factors will be 
considered: time of execution, duration, terms, volume, quality of 
resource, and such other factors as may be appropriate to reflect the 
value of the resource.
    (2) The equivalent value of the least expensive, reasonable 
alternative energy source (fuel) multiplied by the royalty rate in your 
lease. The equivalent value of the least expensive, reasonable 
alternative energy source will be based on the amount of thermal energy 
that would otherwise be used by the direct use facility in place of the 
geothermal resource. That amount of thermal energy (in Btu) displaced by 
the geothermal resource will be determined by the equation:
[GRAPHIC] [TIFF OMITTED] TR02MY07.003


Where hin is the enthalpy in Btu/lb at the direct use 
facility inlet (based on measured inlet temperature), hout is 
the enthalpy in Btu/lb at the facility outlet (based on measured outlet 
temperature), density is in lbs/cu ft based on inlet temperature, the 
factor 0.113681 (cu ft/gal) converts gallons to cubic feet, and volume 
is the quantity of geothermal fluid in gallons produced at the wellhead 
or measured at an approved point. The efficiency factor of the 
alternative energy source will be 0.7 for coal and 0.8 for oil, natural 
gas, and other fuels derived from oil and natural gas, or an efficiency 
factor proposed by the lessee and approved by ONRR. The methods of 
measuring resource parameters (temperature, volume, etc.) and the 
frequency of computing and accumulating the amount of thermal energy 
displaced will be determined and approved by BLM under 43 CFR 3275.13-
3275.17.
    (3) A royalty determined by any other reasonable method approved by 
ONRR or the Assistant Secretary, Policy, Management and Budget of the 
Department of the Interior, under Sec. 1206.364 of this part.
    (b) For geothermal resources produced from Class II and Class III 
leases, you must multiply the appropriate fee from the schedule in 
subparagraph (b)(1) of this section by the number of gallons or pounds 
you produce from the direct use lease each month.
    (1) You must use the following fee schedule to calculate fees due 
under this section:

[[Page 827]]



                                             Direct Use Fee Schedule
                                                   [Hot water]
----------------------------------------------------------------------------------------------------------------
             If your average monthly inlet temperature ( [deg]F) is                     Your fees are . . .
----------------------------------------------------------------------------------------------------------------
                                                                   But less than    ($/million      ($/million
                         At least . . .                                . . .         gallons)         pounds)
----------------------------------------------------------------------------------------------------------------
130.............................................................             140           2.524           0.307
140.............................................................             150           7.549           0.921
150.............................................................             160          12.543           1.536
160.............................................................             170          17.503           2.150
170.............................................................             180          22.426           2.764
180.............................................................             190          27.310           3.379
190.............................................................             200          32.153           3.993
200.............................................................             210          36.955           4.607
210.............................................................             220          41.710           5.221
220.............................................................             230          46.417           5.836
230.............................................................             240          51.075           6.450
240.............................................................             250          55.682           7.064
250.............................................................             260          60.236           7.679
260.............................................................             270          64.736           8.293
270.............................................................             280          69.176           8.907
280.............................................................             290          73.558           9.521
290.............................................................             300          77.876          10.136
300.............................................................             310          82.133          10.750
310.............................................................             320          86.328          11.364
320.............................................................             330          90.445          11.979
330.............................................................             340          94.501          12.593
340.............................................................             350          98.481          13.207
350.............................................................             360         102.387          13.821
----------------------------------------------------------------------------------------------------------------

    (i) For direct use geothermal resources with an average monthly 
inlet temperature of 130 [deg]F or less, you must pay only the lease 
rental.
    (ii) The ONNR, in consultation with BLM, will develop and publish a 
revised fee schedule in the Federal Register, as needed.
    (iii) ONRR, in consultation with BLM, will calculate revised fees 
schedules using the following formulas:
[GRAPHIC] [TIFF OMITTED] TR02MY07.004

Where:

RV = Royalty due as a function of produced volume in the fee 
schedule, expressed as dollars per million (10\6\) gallons;
Rm = Royalty due as a function of produced mass in the fee 
schedule, expressed as dollars per million (10\6\) pounds;
[rho][rho] = Water density at inlet temperature expressed as lbs per 
gallon;
Tin = Measured inlet temperature in [deg]F (as required by 
BLM under 43 CFR part 3275);
Tout = Established assumed outlet temperature of 130[deg] F;
e = Boiler Efficiency Factor for coal of 70 percent;
Pprbc = The 3-year historical average of Powder River Basin 
spot coal prices, as published by the Energy Information Administration, 
or other recognized authoritative reference source of coal prices, in 
dollars (per MMBtu);
Frr = The assumed Lease Royalty Rate of 10 percent.

    (2) The fee that you report is subject to monitoring, review, and 
audit.
    (3) The schedule of fees established under this paragraph will apply 
to any Class III lease with respect to any royalty payments previously 
made when the lease was a Class I lease that were due and owing, and 
were paid, on or after July 16, 2003. To use this provision, you must 
provide ONRR data

[[Page 828]]

showing the amount of geothermal production in pounds or gallons of 
geothermal fluid to input into the fee schedule (see 43 CFR part 3276).
    (i) If the royalties you previously paid are less than the fees due 
under this section, you must pay the difference plus interest on that 
difference computed under Sec. 1218.302 of this chapter.
    (ii) If the royalties you previously paid are more than the fees due 
under this section, then you are entitled to a refund or credit from 
ONRR of 50 percent of the overpaid royalties. You are also entitled to a 
refund or credit of any interest that you paid on the overpaid 
royalties.
    (c) For geothermal resources other than hot water, ONRR will 
determine fees on a case-by-case basis.



Sec. 1206.357  How do I calculate royalty due on byproducts?

    (a) If you sell byproducts, you must determine the royalty due on 
the byproducts that are royalty-bearing under:
    (1) Applicable lease terms of Class I leases and of Class III leases 
that do not elect to be subject to all of the BLM regulations 
promulgated for leases issued after August 8, 2005, under 43 CFR 
3200.7(a)(2), or
    (2) Applicable statutory provisions at 30 U.S.C. 1004(a)(2) for 
Class II leases and for Class III leases that do elect to be subject to 
all of the BLM regulations promulgated for leases issued after August 8, 
2005, under 43 CFR 3200.7(a)(2).
    (b) You must determine the royalty due on the byproducts by 
multiplying the royalty rate in your lease or that BLM prescribes under 
43 CFR 3211.19 by a value of the byproducts determined in accordance 
with the first applicable of the following subparagraphs:
    (1) The gross proceeds accruing to you from the arm's-length sale of 
the byproducts, less any applicable byproduct transportation allowances 
determined under Sec. Sec. 1206.358 and 1206.359. See Sec. 1206.361 
for additional provisions applicable to determining gross proceeds;
    (2) Other relevant matters including, but not limited to, published 
or publicly available spot-market prices, or information submitted by 
the lessee concerning circumstances unique to a particular lease 
operation or the saleability of certain byproducts; or
    (3) Any other reasonable valuation method approved by ONRR.



Sec. 1206.358  What are byproduct transportation allowances?

    (a) When you determine the value of byproducts at a point off the 
geothermal lease, unit, or participating area, you are allowed a 
deduction in determining value, for royalty purposes, for your 
reasonable, actual costs incurred to:
    (1) Transport the byproducts from a Federal lease, unit, or 
participating area to a sales point or point of delivery that is off the 
lease, unit, or participating area; or
    (2) Transport the byproducts from a Federal lease, unit, or 
participating area, or from a geothermal use facility to a byproduct 
recovery facility when that byproduct recovery facility is off the 
lease, unit, or participating area and, if applicable, from the recovery 
facility to a sales point or point of delivery off the lease, unit, or 
participating area.
    (b) Costs for transporting geothermal fluids from the lease to the 
geothermal use facility, whether on or off the lease, are not includible 
in the byproduct transportation allowance.
    (c)(1) When you transport byproducts from a lease, unit, 
participating area, or geothermal use facility to a byproduct recovery 
facility, you are not required to allocate transportation costs between 
the quantity of marketable byproducts and the rejected waste material. 
The byproduct transportation allowance is authorized for the total 
production that is transported. You must express byproduct 
transportation allowances as a cost per unit of marketable byproducts 
transported.
    (2) For byproducts that are extracted on the lease, unit, 
participating area, or at the geothermal use facility, the byproduct 
transportation allowance is authorized for the total byproduct that is 
transported to a point of sale off the lease, unit, or participating 
area. You must express byproduct transportation allowances as a cost per 
unit of byproduct transported.

[[Page 829]]

    (3) You may deduct transportation costs only when you sell, deliver, 
or otherwise utilize the transported byproduct and report and pay 
royalties on the byproduct.
    (d) Reporting requirements. (1) You must use a discrete field on 
Form MMS-2014 to notify ONRR of a transportation allowance.
    (2) In conducting reviews and audits, ONRR may require you to submit 
arm's-length transportation contracts, production agreements, operating 
agreements, and related documents. You must comply with any such 
requirements within the time ONRR specifies. Recordkeeping requirements 
are found at part 1212 of this chapter.
    (e) Byproduct transportation allowances are subject to monitoring, 
review, and audit. If, after a review or audit, ONRR determines that you 
have improperly determined a byproduct transportation allowance, you 
must pay any additional royalties due (plus interest computed under 
Sec. 1218.302 of this chapter). You are entitled to a credit for or 
refund of any overpaid royalties.
    (f) If you commingled byproducts produced from Federal and non-
Federal leases for transportation, you may not disproportionately 
allocate transportation costs to Federal lease production.



Sec. 1206.359  How do I determine byproduct transportation allowances?

    (a) For transportation costs you incur under an arm's-length 
contract, the transportation allowance will be the reasonable, actual 
costs you incurred for transporting the byproducts under that contract.
    (1) In conducting reviews and audits, ONRR will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from you to the transporter for the 
transportation. If the contract reflects more than the total 
consideration you paid, ONRR may require you to determine the byproduct 
transportation allowance under paragraph (b) of this section.
    (2) If ONRR determines that the consideration you paid under an 
arm's-length byproduct transportation contract does not reflect the 
reasonable value of the transportation because of misconduct by or 
between the contracting parties, or because you otherwise have breached 
your duty to the lessor to market the production for the mutual benefit 
of the lessee and the lessor, ONRR will require you to determine the 
byproduct transportation allowance under paragraph (b) of this section. 
When ONRR determines that the value of the transportation may be 
unreasonable, ONRR will notify you and give you an opportunity to 
provide written information justifying your transportation costs.
    (3) Where your payments for transportation under an arm's-length 
contract are not established on a dollars-per-unit basis, you must 
convert whatever consideration you paid to a dollar value equivalent for 
the purposes of this section.
    (b) If you transport the byproduct yourself or under a non-arm's-
length transportation arrangement, the byproduct transportation 
allowance is your reasonable actual costs for transportation during the 
reporting period, including:
    (1) Operating and maintenance expenses under paragraphs (d) and (e) 
of this section;
    (2) Overhead under paragraph (f) of this section; and either
    (3) Depreciation under paragraphs (g) and (h) of this section and a 
return on undepreciated capital investment under paragraphs (g) and (i) 
of this section; or
    (4) A return on capital investment in the transportation system 
under paragraphs (g) and (j) of this section.
    (c)(1) Allowable capital costs under paragraph (b) of this section 
are generally those for depreciable fixed assets (including costs of 
delivery and installation of capital equipment) that are an integral 
part of the transportation system.
    (2)(i) You may include a return on capital you invested in the 
purchase of real estate to locate the byproduct transportation 
facilities if:
    (A) The purchase is necessary; and
    (B) The surface is not part of a Federal lease.
    (ii) The rate of return will be the same rate determined in 
paragraph (k) of this section.

[[Page 830]]

    (3) You may not deduct the costs of gathering systems and other 
production-related facilities.
    (d) Allowable operating expenses include:
    (1) Operations supervision and engineering;
    (2) Operations labor;
    (3) Fuel;
    (4) Utilities;
    (5) Materials;
    (6) Ad valorem property taxes;
    (7) Rent;
    (8) Supplies; and
    (9) Any other directly allocable and attributable operating expense 
that you can document.
    (e) Allowable maintenance expenses include:
    (1) Maintenance of the transportation system;
    (2) Maintenance of equipment;
    (3) Maintenance labor; and
    (4) Other directly allocable and attributable maintenance expenses 
that you can document.
    (f) Overhead directly attributable and allocable to the operation 
and maintenance of the transportation system is an allowable expense. 
State and Federal income taxes and severance taxes and other fees, 
including royalties, are not allowable expenses.
    (g) To compute costs associated with capital investment, a lessee 
may use either paragraphs (h) and (i) or paragraph (j) of this section. 
After a lessee has elected to use either method for a transportation 
system, the lessee may not later elect to change to the other 
alternative without ONRR approval.
    (h)(1) To compute depreciation, you must use a straight-line 
depreciation method based on either the life of the equipment or the 
life of the geothermal project which the transportation system services. 
After you choose the basis for depreciation, you may not change that 
basis without ONRR approval. You may not depreciate equipment below a 
reasonable salvage value.
    (2) A change in ownership of a transportation system does not alter 
the depreciation schedule established by the original lessee-owner for 
purposes of computing transportation costs.
    (3) With or without a change in ownership, you may depreciate a 
transportation system only once.
    (i) To calculate a return on undepreciated capital investment, 
multiply the remaining undepreciated capital balance as of the beginning 
of the period for which you are calculating the transportation allowance 
by the rate of return provided in paragraph (k) of this section.
    (j) To compute a return on capital investment in the transportation 
system, the allowed cost will be the amount equal to the allowable 
capital investment in the transportation system multiplied by the rate 
of return determined pursuant to paragraph (k) of this section. There is 
no allowance for depreciation.
    (k) The rate of return must be the industrial rate associated with 
Standard & Poor's BBB rating. The BBB rate must be the monthly average 
rate as published in Standard & Poor's Bond Guide for the first month 
for which the allowance is applicable. You must redetermine the rate at 
the beginning of each subsequent calendar year.
    (l)(1) For new transportation facilities or arrangements, base your 
initial deduction on estimates of allowable byproduct transportation 
costs for the applicable period. Use the most recently available 
operations data for the transportation system or, if such data are not 
available, use estimates based on data for similar transportation 
systems.
    (2) When actual cost information is available, you must amend your 
prior Form MMS-2014 reports to reflect actual byproduct transportation 
cost deductions for each month for which you reported and paid based on 
estimated byproduct transportation costs. You must pay any additional 
royalties due (together with interest computed under Sec. 1218.302 of 
this chapter). You are entitled to a credit for or a refund of any 
overpaid royalties.



Sec. 1206.360  What records must I keep to support my calculations of royalty 

or fees under this subpart?

    If you determine royalties or direct use fees for your geothermal 
resource under this subpart, you must retain all data relevant to the 
determination of the royalty value or the fee you paid. Recordkeeping 
requirements are found at part 1212 of this chapter.

[[Page 831]]

    (a) You must be able to show:
    (1) How you calculated the royalty value or fee you reported, 
including all allowable deductions; and
    (2) How you complied with this subpart.
    (b) Upon request, you must submit all data to ONRR. You must comply 
with any such requirement within the time ONRR specifies.



Sec. 1206.361  How will ONRR determine whether my royalty or direct use fee 

payments are correct?

    (a)(1) The royalties or direct use fees that you report are subject 
to monitoring, review, and audit. The ONRR may review and audit your 
data, and ONRR will direct you to use a different measure of royalty 
value, gross proceeds, or fee, whichever is applicable, if it determines 
that the reported value, gross proceeds, or fee is inconsistent with the 
requirements of this subpart.
    (2) If ONRR directs you to use a different royalty value, measure of 
gross proceeds, or fee, you must either pay any royalties or fees due 
(together with interest computed under Sec. 1218.302 of this chapter) 
or report a credit for or request a refund of any overpaid royalties or 
fees.
    (b) When the provisions in this subpart refer to gross proceeds 
either for the sale of electricity or the sale of a geothermal resource, 
in conducting reviews and audits ONRR will examine whether your sales 
contract reflects the total consideration actually transferred, either 
directly or indirectly, from the buyer to you for the geothermal 
resource or electricity. If ONRR determines that a contract does not 
reflect the total consideration, or the gross proceeds accruing to you 
under a contract do not reflect reasonable consideration because of 
misconduct by or between the contracting parties, or because you 
otherwise have breached your duty to the lessor to market the production 
for the mutual benefit of the lessee and the lessor, ONRR may require 
you to increase the gross proceeds to reflect any additional 
consideration. Alternatively, for Class I leases, ONRR may require you 
to use another valuation method in the regulations applicable to 
dispositions other than under an arm's-length contract. ONRR will notify 
you to give you an opportunity to provide written information justifying 
your gross proceeds.
    (c) For arm's-length sales, you have the burden of demonstrating 
that your contract is arm's length.
    (d) ONRR may require you to certify that the provisions in your 
sales contract include all of the consideration the buyer paid you, 
either directly or indirectly, for the electricity or geothermal 
resource.
    (e) Notwithstanding any other provision of this subpart, under no 
circumstances will the value of production for royalty purposes under a 
Class I lease where the geothermal resources are sold before use be less 
than the gross proceeds accruing to you.
    (f) Gross proceeds for the sale of electricity or for the sale of 
the geothermal resource will be based on the highest price a prudent 
lessee can receive through legally enforceable claims under its 
contract.
    (1) Absent contract revision or amendment, if you fail to take 
proper or timely action to receive prices or benefits to which you are 
entitled, you must pay royalty based upon that obtainable price or 
benefit.
    (2) Contract revisions or amendments you make must be in writing and 
signed by all parties to the contract.
    (3) If you make timely application for a price increase or benefit 
allowed under your contract, but the purchaser refuses and you take 
reasonable measures, which are documented, to force purchaser 
compliance, you will owe no additional royalties unless or until you 
receive additional monies or consideration resulting from the price 
increase. This paragraph (f)(3) will not be construed to permit you to 
avoid your royalty payment obligation in situations where a purchaser 
fails to pay, in whole or in part or timely, for a quantity of 
geothermal resources or electricity.



Sec. 1206.362  What are my responsibilities to place production into 

marketable condition and to market production?

    You must place geothermal resources and byproducts in marketable 
condition and market the geothermal resources or byproducts for the 
mutual

[[Page 832]]

benefit of the lessee and the lessor at no cost to the Federal 
Government. If you use gross proceeds under an arm's-length contract in 
determining royalty, you must increase those gross proceeds to the 
extent that the purchaser, or any other person, provides certain 
services that the seller normally would be responsible to perform to 
place the geothermal resources or byproducts in marketable condition or 
to market the geothermal resources or byproducts.



Sec. 1206.363  When is an ONRR audit, review, reconciliation, monitoring, or 

other like process considered final?

    Notwithstanding any provision in these regulations to the contrary, 
no audit, review, reconciliation, monitoring, or other like process that 
results in a redetermination by ONRR of royalty or fees due under this 
subpart is considered final or binding as against the Federal Government 
or its beneficiaries until ONRR formally closes the audit period in 
writing.



Sec. 1206.364  How do I request a value or gross proceeds determination?

    (a) You may request a value determination from ONRR regarding any 
geothermal resources produced from a Class I lease or for byproducts 
produced from a Class I, Class II, or Class III lease. You may also 
request a gross proceeds determination for a Class II or Class III 
lease. Your request must:
    (1) Be in writing;
    (2) Identify specifically all leases involved, all owners of 
interests in those leases, and the operator(s) for those leases;
    (3) Completely explain all relevant facts. You must inform ONRR of 
any changes to relevant facts that occur before we respond to your 
request;
    (4) Include copies of all relevant documents;
    (5) Provide your analysis of the issue(s), including citations to 
all relevant precedents (including adverse precedents); and
    (6) Suggest your proposed gross proceeds calculation or valuation 
method.
    (b) In response to your request:
    (1) The Assistant Secretary, Policy, Management and Budget, may 
issue a determination; or
    (2) ONRR may issue a determination; or
    (3) ONRR may inform you in writing that ONRR will not provide a 
determination. Situations in which ONRR typically will not provide any 
determination include, but are not limited to:
    (i) Requests for guidance on hypothetical situations; and
    (ii) Matters that are the subject of pending litigation or 
administrative appeals.
    (c)(1) A determination signed by the Assistant Secretary, Policy, 
Management and Budget, is binding on both you and ONRR until the 
Assistant Secretary modifies or rescinds it.
    (2) After the Assistant Secretary issues a determination, you must 
make any adjustments in royalty payments that follow from the 
determination and, if you owe additional royalties, pay the royalties 
owed together with late payment interest computed under Sec. 1218.302 
of this chapter.
    (3) A determination signed by the Assistant Secretary is the final 
action of the Department and is subject to judicial review under 5 
U.S.C. 701-706.
    (d) A determination issued by ONRR is binding on ONRR and delegated 
States, but not on you, with respect to the specific situation addressed 
in the determination unless ONRR (for ONRR-issued determinations) or the 
Assistant Secretary modifies or rescinds it.
    (1) A determination by ONRR is not an appealable decision or order 
under 30 CFR part 1290 subpart B.
    (2) If you receive an order requiring you to pay royalty on the same 
basis as the determination, you may appeal that order under 30 CFR part 
1290 subpart B.
    (e) In making a determination, ONRR or the Assistant Secretary may 
use any of the applicable criteria in this subpart.
    (f) A change in an applicable statute or regulation on which any 
determination is based takes precedence over the determination after the 
effective date of the statute or regulation, regardless of whether ONRR 
or the Assistant Secretary modifies or rescinds the determination.

[[Page 833]]

    (g) ONRR or the Assistant Secretary generally will not retroactively 
modify or rescind a determination issued under paragraph (d) of this 
section, unless:
    (1) There was a misstatement or omission of material facts; or
    (2) The facts subsequently developed are materially different from 
the facts on which the guidance was based.
    (h) ONRR may make requests and replies under this section available 
to the public, subject to the confidentiality requirements under Sec. 
1206.365.



Sec. 1206.365  Does ONRR protect information I provide?

    Certain information you submit to ONRR regarding royalties or fees 
on geothermal resources or byproducts, including deductions and 
allowances, may be exempt from disclosure. To the extent applicable laws 
and regulations permit, ONRR will keep confidential any data you submit 
that is privileged, confidential, or otherwise exempt from disclosure. 
All requests for information must be submitted under the Freedom of 
Information Act regulations of the Department of the Interior at 43 CFR 
part 2.



Sec. 1206.366  What is the nominal fee that a State, tribal, or local 

government lessee must pay for the use of geothermal resources?

    If a State, tribal, or local government lessee uses a geothermal 
resource without sale and for public purposes--other than commercial 
production or generation of electricity--the State, tribal, or local 
government lessee must pay a nominal fee. A nominal fee means a slight 
or de minimis fee. ONRR will determine the fee on a case-by-case basis.

Subpart I--OCS Sulfur [Reserved]



                          Subpart J_Indian Coal

    Source: 61 FR 5481, Feb. 12, 1996, unless otherwise noted.



Sec. 1206.450  Purpose and scope.

    (a) This subpart prescribes the procedures to establish the value, 
for royalty purposes, of all coal from Indian Tribal and allotted leases 
(except leases on the Osage Indian Reservation, Osage County, Oklahoma).
    (b) If the specific provisions of any statute, treaty, or settlement 
agreement between the Indian lessor and a lessee resulting from 
administrative or judicial litigation, or any coal lease subject to the 
requirements of this subpart, are inconsistent with any regulation in 
this subpart, then the statute, treaty, lease provision, or settlement 
shall govern to the extent of that inconsistency.
    (c) All royalty payments are subject to later audit and adjustment.
    (d) The regulations in this subpart are intended to ensure that the 
trust responsibilities of the United States with respect to the 
administration of Indian coal leases are discharged in accordance with 
the requirements of the governing mineral leasing laws, treaties, and 
lease terms.



Sec. 1206.451  Definitions.

    Ad valorem lease means a lease where the royalty due to the lessor 
is based upon a percentage of the amount or value of the coal.
    Allowance means an approved, or an ONRR-initially accepted deduction 
in determining value for royalty purposes. Coal washing allowance means 
an allowance for the reasonable, actual costs incurred by the lessee for 
coal washing, or an approved or ONRR-initially accepted deduction for 
the costs of washing coal, determined pursuant to this subpart. 
Transportation allowance means an allowance for the reasonable, actual 
costs incurred by the lessee for moving coal to a point of sale or point 
of delivery remote from both the lease and mine or wash plant, or an 
approved ONRR-initially accepted deduction for costs of such 
transportation, determined pursuant to this subpart.
    Area means a geographic region in which coal has similar quality and 
economic characteristics. Area boundaries are not officially designated 
and the areas are not necessarily named.
    Arm's-length contract means a contract or agreement that has been 
arrived at in the marketplace between independent, nonaffiliated persons 
with opposing economic interests regarding

[[Page 834]]

that contract. For purposes of this subpart, two persons are affiliated 
if one person controls, is controlled by, or is under common control 
with another person. For purposes of this subpart, based on the 
instruments of ownership of the voting securities of an entity, or based 
on other forms of ownership: ownership in excess of 50 percent 
constitutes control; ownership of 10 through 50 percent creates a 
presumption of control; and ownership of less than 10 percent creates a 
presumption of noncontrol which ONRR may rebut if it demonstrates actual 
or legal control, including the existence of interlocking directorates. 
Notwithstanding any other provisions of this subpart, contracts between 
relatives, either by blood or by marriage, are not arm's-length 
contracts. ONRR may require the lessee to certify ownership control. To 
be considered arm's-length for any production month, a contract must 
meet the requirements of this definition for that production month, as 
well as when the contract was executed.
    Audit means a review, conducted in accordance with generally 
accepted accounting and auditing standards, of royalty payment 
compliance activities of lessees or other interest holders who pay 
royalties, rents, or bonuses on Indian leases.
    BIA means the Bureau of Indian Affairs of the Department of the 
Interior.
    BLM means the Bureau of Land Management of the Department of the 
Interior.
    Coal means coal of all ranks from lignite through anthracite.
    Coal washing means any treatment to remove impurities from coal. 
Coal washing may include, but is not limited to, operations such as 
flotation, air, water, or heavy media separation; drying; and related 
handling (or combination thereof).
    Contract means any oral or written agreement, including amendments 
or revisions thereto, between two or more persons and enforceable by law 
that with due consideration creates an obligation.
    Gross proceeds (for royalty payment purposes) means the total monies 
and other consideration accruing to a coal lessee for the production and 
disposition of the coal produced. Gross proceeds includes, but is not 
limited to, payments to the lessee for certain services such as 
crushing, sizing, screening, storing, mixing, loading, treatment with 
substances including chemicals or oils, and other preparation of the 
coal to the extent that the lessee is obligated to perform them at no 
cost to the Indian lessor. Gross proceeds, as applied to coal, also 
includes but is not limited to reimbursements for royalties, taxes or 
fees, and other reimbursements. Tax reimbursements are part of the gross 
proceeds accruing to a lessee even though the Indian royalty interest 
may be exempt from taxation. Monies and other consideration, including 
the forms of consideration identified in this paragraph, to which a 
lessee is contractually or legally entitled but which it does not seek 
to collect through reasonable efforts are also part of gross proceeds.
    Indian allottee means any Indian for whom land or an interest in 
land is held in trust by the United States or who holds title subject to 
Federal restriction against alienation.
    Indian Tribe means any Indian Tribe, band, nation, pueblo, 
community, rancheria, colony, or other group of Indians for which any 
land or interest in land is held in trust by the United States or which 
is subject to Federal restriction against alienation.
    Lease means any contract, profit-share arrangement, joint venture, 
or other agreement issued or approved by the United States for an Indian 
coal resource under a mineral leasing law that authorizes exploration 
for, development or extraction of, or removal of coal--or the land 
covered by that authorization, whichever is required by the context.
    Lessee means any person to whom the Indian Tribe or an Indian 
allottee issues a lease, and any person who has been assigned an 
obligation to make royalty or other payments required by the lease. This 
includes any person who has an interest in a lease as well as an 
operator or payor who has no interest in the lease but who has assumed 
the royalty payment responsibility.
    Like-quality coal means coal that has similar chemical and physical 
characteristics.

[[Page 835]]

    Marketable condition means coal that is sufficiently free from 
impurities and otherwise in a condition that it will be accepted by a 
purchaser under a sales contract typical for that area.
    Mine means an underground or surface excavation or series of 
excavations and the surface or underground support facilities that 
contribute directly or indirectly to mining, production, preparation, 
and handling of lease products.
    Net-back method means a method for calculating market value of coal 
at the lease or mine. Under this method, costs of transportation, 
washing, handling, etc., are deducted from the ultimate proceeds 
received for the coal at the first point at which reasonable values for 
the coal may be determined by a sale pursuant to an arm's-length 
contract or by comparison to other sales of coal, to ascertain value at 
the mine.
    Net output means the quantity of washed coal that a washing plant 
produces.
    ONRR means the Office of Natural Resources Revenue of the Department 
of the Interior.
    Person means by individual, firm, corporation, association, 
partnership, consortium, or joint venture.
    Sales type code means the contract type or general disposition 
(e.g., arm's-length or non-arm's-length) of production from the lease. 
The sales type code applies to the sales contract, or other disposition, 
and not to the arm's-length or non-arm's-length nature of a 
transportation or washing allowance.
    Spot market price means the price received under any sales 
transaction when planned or actual deliveries span a short period of 
time, usually not exceeding one year.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999; 73 
FR 15891, Mar. 26, 2008]



Sec. 1206.452  Coal subject to royalties--general provisions.

    (a) All coal (except coal unavoidably lost as determined by BLM 
pursuant to 43 CFR group 3400) from an Indian lease subject to this part 
is subject to royalty. This includes coal used, sold, or otherwise 
disposed of by the lessee on or off the lease.
    (b) If a lessee receives compensation for unavoidably lost coal 
through insurance coverage or other arrangements, royalties at the rate 
specified in the lease are to be paid on the amount of compensation 
received for the coal. No royalty is due on insurance compensation 
received by the lessee for other losses.
    (c) If waste piles or slurry ponds are reworked to recover coal, the 
lessee shall pay royalty at the rate specified in the lease at the time 
the recovered coal is used, sold, or otherwise finally disposed of. The 
royalty rate shall be that rate applicable to the production method used 
to initially mine coal in the waste pile or slurry pond; i.e., 
underground mining method or surface mining method. Coal in waste pits 
or slurry ponds initially mined from Indian leases shall be allocated to 
such leases regardless of whether it is stored on Indian lands. The 
lessee shall maintain accurate records to determine to which individual 
Indian lease coal in the waste pit or slurry pond should be allocated. 
However, nothing in this section requires payment of a royalty on coal 
for which a royalty has already been paid.



Sec. 1206.453  Quality and quantity measurement standards for reporting and 

paying royalties.

    For all leases subject to this subpart, the quantity of coal on 
which royalty is due shall be measured in short tons (of 2,000 pounds 
each) by methods prescribed by the BLM. Coal quantity information will 
be reported on appropriate forms required under 30 CFR part 1210--Forms 
and Reports.

[61 FR 5481, Feb. 12, 1996, as amended at 66 FR 45769, Aug. 30, 2001; 73 
FR 15892, Mar. 26, 2008]



Sec. 1206.454  Point of royalty determination.

    (a) For all leases subject to this subpart, royalty shall be 
computed on the basis of the quantity and quality of Indian coal in 
marketable condition measured at the point of royalty measurement as 
determined jointly by BLM and ONRR.
    (b) Coal produced and added to stockpiles or inventory does not 
require payment of royalty until such coal is later used, sold, or 
otherwise finally disposed

[[Page 836]]

of. ONRR may ask BLM or BIA to increase the lease bond to protect the 
lessor's interest when BLM determines that stockpiles or inventory 
become excessive so as to increase the risk of degradation of the 
resource.
    (c) The lessee shall pay royalty at a rate specified in the lease at 
the time the coal is used, sold, or otherwise finally disposed of, 
unless otherwise provided for at Sec. 1206.455(d) of this subpart.



Sec. 1206.455  Valuation standards for cents-per-ton leases.

    (a) This section is applicable to coal leases on Indian Tribal and 
allotted Indian lands (except leases on the Osage Indian Reservation, 
Osage County, Oklahoma) which provide for the determination of royalty 
on a cents-per-ton (or other quantity) basis.
    (b) The royalty for coal from leases subject to this section shall 
be based on the dollar rate per ton prescribed in the lease. That dollar 
rate shall be applicable to the actual quantity of coal used, sold, or 
otherwise finally disposed of, including coal which is avoidably lost as 
determined by BLM pursuant to 43 CFR part 3400.
    (c) For leases subject to this section, there shall be no allowances 
for transportation, removal of impurities, coal washing, or any other 
processing or preparation of the coal.
    (d) When a coal lease is readjusted pursuant to 43 CFR part 3400 and 
the royalty valuation method changes from a cents-per-ton basis to an ad 
valorem basis, coal which is produced prior to the effective date of 
readjustment and sold or used within 30 days of the effective date of 
readjustment shall be valued pursuant to this section. All coal that is 
not used, sold, or otherwise finally disposed of within 30 days after 
the effective date of readjustment shall be valued pursuant to the 
provisions of Sec. 1206.456 of this subpart, and royalties shall be 
paid at the royalty rate specified in the readjusted lease.



Sec. 1206.456  Valuation standards for ad valorem leases.

    (a) This section is applicable to coal leases on Indian Tribal and 
allotted Indian lands (except leases on the Osage Indian Reservation, 
Osage County, Oklahoma) which provide for the determination of royalty 
as a percentage of the amount of value of coal (ad valorem). The value 
for royalty purposes of coal from such leases shall be the value of coal 
determined pursuant to this section, less applicable coal washing 
allowances and transportation allowances determined pursuant to 
Sec. Sec. 1206.457 through 1206.461 of this subpart, or any allowance 
authorized by Sec. 1206.464 of this subpart. The royalty due shall be 
equal to the value for royalty purposes multiplied by the royalty rate 
in the lease.
    (b)(1) The value of coal that is sold pursuant to an arm's-length 
contract shall be the gross proceeds accruing to the lessee, except as 
provided in paragraphs (b)(2), (b)(3), and (b)(5) of this section. The 
lessee shall have the burden of demonstrating that its contract is 
arm's-length. The value which the lessee reports, for royalty purposes, 
is subject to monitoring, review, and audit.
    (2) In conducting reviews and audits, ONRR will examine whether the 
contract reflects the total consideration actually transferred either 
directly or indirectly from the buyer to the seller for the coal 
produced. If the contract does not reflect the total consideration, then 
ONRR may require that the coal sold pursuant to that contract be valued 
in accordance with paragraph (c) of this section. Value may not be based 
on less than the gross proceeds accruing to the lessee for the coal 
production, including the additional consideration.
    (3) If ONRR determines that the gross proceeds accruing to the 
lessee pursuant to an arm's-length contract do not reflect the 
reasonable value of the production because of misconduct by or between 
the contracting parties, or because the lessee otherwise has breached 
its duty to the lessor to market the production for the mutual benefit 
of the lessee and the lessor, then ONRR shall require that the coal 
production be valued pursuant to paragraphs (c)(2)(ii), (c)(2)(iii), 
(c)(2)(iv), or (c)(2)(v) of this section, and in accordance with the 
notification requirements of paragraph (d)(3) of this section. When ONRR 
determines that the value may be unreasonable, ONRR will notify the 
lessee and give the lessee an

[[Page 837]]

opportunity to provide written information justifying the lessee's 
reported coal value.
    (4) ONRR may require a lessee to certify that its arm's-length 
contract provisions include all of the consideration to be paid by the 
buyer, either directly or indirectly, for the coal production.
    (5) The value of production for royalty purposes shall not include 
payments received by the lessee pursuant to a contract which the lessee 
demonstrates, to ONRR' satisfaction, were not part of the total 
consideration paid for the purchase of coal production.
    (c)(1) The value of coal from leases subject to this section and 
which is not sold pursuant to an arm's-length contract shall be 
determined in accordance with this section.
    (2) If the value of the coal cannot be determined pursuant to 
paragraph (b) of this section, then the value shall be determined 
through application of other valuation criteria. The criteria shall be 
considered in the following order, and the value shall be based upon the 
first applicable criterion:
    (i) The gross proceeds accruing to the lessee pursuant to a sale 
under its non-arm's-length contract (or other disposition of produced 
coal by other than an arm's-length contract), provided that those gross 
proceeds are within the range of the gross proceeds derived from, or 
paid under, comparable arm's-length contracts between buyers and sellers 
neither of whom is affiliated with the lessee for sales, purchases, or 
other dispositions of like-quality coal produced in the area. In 
evaluating the comparability of arm's-length contracts for the purposes 
of these regulations, the following factors shall be considered: price, 
time of execution, duration, market or markets served, terms, quality of 
coal, quantity, and such other factors as may be appropriate to reflect 
the value of the coal;
    (ii) Prices reported for that coal to a public utility commission;
    (iii) Prices reported for that coal to the Energy Information 
Administration of the Department of Energy;
    (iv) Other relevant matters including, but not limited to, published 
or publicly available spot market prices, or information submitted by 
the lessee concerning circumstances unique to a particular lease 
operation or the salability of certain types of coal;
    (v) If a reasonable value cannot be determined using paragraphs 
(c)(2)(i), (c)(2)(ii), (c)(2)(iii), or (c)(2)(iv) of this section, then 
a net-back method or any other reasonable method shall be used to 
determine value.
    (3) When the value of coal is determined pursuant to paragraph 
(c)(2) of this section, that value determination shall be consistent 
with the provisions contained in paragraph (b)(5) of this section.
    (d)(1) Where the value is determined pursuant to paragraph (c) of 
this section, that value does not require ONRR' prior approval. However, 
the lessee shall retain all data relevant to the determination of 
royalty value. Such data shall be subject to review and audit, and ONRR 
will direct a lessee to use a different value if it determines that the 
reported value is inconsistent with the requirements of these 
regulations.
    (2) An Indian lessee will make available upon request to the 
authorized ONRR or Indian representatives, or to the Inspector General 
of the Department of the Interior or other persons authorized to receive 
such information, arm's-length sales and sales quantity data for like-
quality coal sold, purchased, or otherwise obtained by the lessee from 
the area.
    (3) A lessee shall notify ONRR if it has determined value pursuant 
to paragraphs (c)(2)(ii), (c)(2)(iii), (c)(2)(iv), or (c)(2)(v) of this 
section. The notification shall be by letter to the Director for Office 
of Natural Resources Revenue or his/her designee. The letter shall 
identify the valuation method to be used and contain a brief description 
of the procedure to be followed. The notification required by this 
section is a one-time notification due no later than the month the 
lessee first reports royalties on the Form MMS-4430 using a valuation 
method authorized by paragraphs (c)(2)(ii), (c)(2)(iii), (c)(2)(iv), or 
(c)(2)(v) of this section, and each time there is a change in a method 
under paragraphs (c)(2)(iv) or (c)(2)(v) of this section.
    (e) If ONRR determines that a lessee has not properly determined 
value, the lessee shall be liable for the difference,

[[Page 838]]

if any, between royalty payments made based upon the value it has used 
and the royalty payments that are due based upon the value established 
by ONRR. The lessee shall also be liable for interest computed pursuant 
to 30 CFR 218.202. If the lessee is entitled to a credit, ONRR will 
provide instructions for the taking of that credit.
    (f) The lessee may request a value determination from ONRR. In that 
event, the lessee shall propose to ONRR a value determination method, 
and may use that method in determining value for royalty purposes until 
ONRR issues its decision. The lessee shall submit all available data 
relevant to its proposal. ONRR shall expeditiously determine the value 
based upon the lessee's proposal and any additional information ONRR 
deems necessary. That determination shall remain effective for the 
period stated therein. After ONRR issues its determination, the lessee 
shall make the adjustments in accordance with paragraph (e) of this 
section.
    (g) Notwithstanding any other provisions of this section, under no 
circumstances shall the value for royalty purposes be less than the 
gross proceeds accruing to the lessee for the disposition of produced 
coal less applicable provisions of paragraph (b)(5) of this section and 
less applicable allowances determined pursuant to Sec. Sec. 1206.457 
through 1206.461 and Sec. 1206.464 of this subpart.
    (h) The lessee is required to place coal in marketable condition at 
no cost to the Indian lessor. Where the value established pursuant to 
this section is determined by a lessee's gross proceeds, that value 
shall be increased to the extent that the gross proceeds has been 
reduced because the purchaser, or any other person, is providing certain 
services, the cost of which ordinarily is the responsibility of the 
lessee to place the coal in marketable condition.
    (i) Value shall be based on the highest price a prudent lessee can 
receive through legally enforceable claims under its contract. Absent 
contract revision or amendment, if the lessee fails to take proper or 
timely action to receive prices or benefits to which it is entitled, it 
must pay royalty at a value based upon that obtainable price or benefit. 
Contract revisions or amendments shall be in writing and signed by all 
parties to an arm's-length contract, and may be retroactively applied to 
value for royalty purposes for a period not to exceed two years, unless 
ONRR approves a longer period. If the lessee makes timely application 
for a price increase allowed under its contract but the purchaser 
refuses, and the lessee takes reasonable measures, which are documented, 
to force purchaser compliance, the lessee will owe no additional 
royalties unless or until monies or consideration resulting from the 
price increase are received. This paragraph shall not be construed to 
permit a lessee to avoid its royalty payment obligation in situations 
where a purchaser fails to pay, in whole or in part or timely, for a 
quantity of coal.
    (j) Notwithstanding any provision in these regulations to the 
contrary, no review, reconciliation, monitoring, or other like process 
that results in a redetermination by ONRR of value under this section 
shall be considered final or binding as against the Indian Tribes or 
allottees until the audit period is formally closed.
    (k) Certain information submitted to ONRR to support valuation 
proposals, including transportation, coal washing, or other allowances 
pursuant to Sec. Sec. 1206.457 through 1206.461 and Sec. 1206.464 of 
this subpart, is exempted from disclosure by the Freedom of Information 
Act, 5 U.S.C. 522. Any data specified by the Act to be privileged, 
confidential, or otherwise exempt shall be maintained in a confidential 
manner in accordance with applicable law and regulations. All requests 
for information about determinations made under this part are to be 
submitted in accordance with the Freedom of Information Act regulation 
of the Department of the Interior, 43 CFR part 2. Nothing in this 
section is intended to limit or diminish in any manner whatsoever the 
right of an Indian lessor to obtain any and all information as such 
lessor may be lawfully entitled from ONRR or such lessor's lessee 
directly under the terms of the lease or applicable law.

[61 FR 5481, Feb. 12, 1996, as amended at 66 FR 45769, Aug. 30, 2001]

[[Page 839]]



Sec. 1206.457  Washing allowances--general.

    (a) For ad valorem leases subject to Sec. 1206.456 of this subpart, 
ONRR shall, as authorized by this section, allow a deduction in 
determining value for royalty purposes for the reasonable, actual costs 
incurred to wash coal, unless the value determined pursuant to Sec. 
1206.456 of this subpart was based upon like-quality unwashed coal. 
Under no circumstances will the authorized washing allowance and the 
transportation allowance reduce the value for royalty purposes to zero.
    (b) If ONRR determines that a lessee has improperly determined a 
washing allowance authorized by this section, then the lessee shall be 
liable for any additional royalties, plus interest determined in 
accordance with Sec. 1218.202 of this chapter, or shall be entitled to 
a credit, without interest.
    (c) Lessees shall not disproportionately allocate washing costs to 
Indian leases.
    (d) No cost normally associated with mining operations and which are 
necessary for placing coal in marketable condition shall be allowed as a 
cost of washing.
    (e) Coal washing costs shall only be recognized as allowances when 
the washed coal is sold and royalties are reported and paid.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999]



Sec. 1206.458  Determination of washing allowances.

    (a) Arm's-length contracts. (1) For washing costs incurred by a 
lessee pursuant to an arm's-length contract, the washing allowance shall 
be the reasonable actual costs incurred by the lessee for washing the 
coal under that contract, subject to monitoring, review, audit, and 
possible future adjustment. ONRR' prior approval is not required before 
a lessee may deduct costs incurred under an arm's-length contract. 
However, before any deduction may be taken, the lessee must submit a 
completed page one of Form MMS-4292, Coal Washing Allowance Report, in 
accordance with paragraph (c)(1) of this section. A washing allowance 
may be claimed retroactively for a period of not more than 3 months 
prior to the first day of the month that Form MMS-4292 is filed with 
ONRR, unless ONRR approves a longer period upon a showing of good cause 
by the lessee.
    (2) In conducting reviews and audits, ONRR will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the washer for the 
washing. If the contract reflects more than the total consideration 
paid, then ONRR may require that the washing allowance be determined in 
accordance with paragraph (b) of this section.
    (3) If ONRR determines that the consideration paid pursuant to an 
arm's-length washing contract does not reflect the reasonable value of 
the washing because of misconduct by or between the contracting parties, 
or because the lessee otherwise has breached its duty to the lessor to 
market the production for the mutual benefit of the lessee and the 
lessor, then ONRR shall require that the washing allowance be determined 
in accordance with paragraph (b) of this section. When ONRR determines 
that the value of the washing may be unreasonable, ONRR will notify the 
lessee and give the lessee an opportunity to provide written information 
justifying the lessee's washing costs.
    (4) Where the lessee's payments for washing under an arm's-length 
contract are not based on a dollar-per-unit basis, the lessee shall 
convert whatever consideration is paid to a dollar value equivalent. 
Washing allowances shall be expressed as a cost per ton of coal washed.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length contract or has no contract, including those situations 
where the lessee performs washing for itself, the washing allowance will 
be based upon the lessee's reasonable actual costs. All washing 
allowances deducted under a non-arm's-length or no contract situation 
are subject to monitoring, review, audit, and possible future 
adjustment. Prior ONRR approval of washing allowances is not required 
for non-arm's-length or no contract situations. However, before any 
estimated or actual deduction may be taken, the lessee must submit a 
completed Form MMS-

[[Page 840]]

4292 in accordance with paragraph (c)(2) of this section. A washing 
allowance may be claimed retroactively for a period of not more than 3 
months prior to the first day of the month that Form MMS-4292 is filed 
with ONRR, unless ONRR approves a longer period upon a showing of good 
cause by the lessee. ONRR will monitor the allowance deduction to ensure 
that deductions are reasonable and allowable. When necessary or 
appropriate, ONRR may direct a lessee to modify its actual washing 
allowance.
    (2) The washing allowance for non-arm's-length or no contract 
situations shall be based upon the lessee's actual costs for washing 
during the reported period, including operating and maintenance 
expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the depreciable 
investment in the wash plant multiplied by the rate of return in 
accordance with paragraph (b)(2)(iv)(B) of this section. Allowable 
capital costs are generally those for depreciable fixed assets 
(including costs of delivery and installation of capital equipment) 
which are an integral part of the wash plant.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the wash 
plant; maintenance of equipment; maintenance labor; and other directly 
allocable and attributable maintenance expenses which the lessee can 
document.
    (iii) Overhead attributable and allocable to the operation and 
maintenance of the wash plant is an allowable expense. State and Federal 
income taxes and severance taxes, including royalties, are not allowable 
expenses.
    (iv) A lessee may use either paragraph (b)(2)(iv)(A) or 
(b)(2)(iv)(B) of this section. After a lessee has elected to use either 
method for a wash plant, the lessee may not later elect to change to the 
other alternative without approval of ONRR.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the wash plant services, whichever is 
appropriate, or a unit of production method. After an election is made, 
the lessee may not change methods without ONRR approval. A change in 
ownership of a wash plant shall not alter the depreciation schedule 
established by the original operator/lessee for purposes of the 
allowance calculation. With or without a change in ownership, a wash 
plant shall be depreciated only once. Equipment shall not be depreciated 
below a reasonable salvage value.
    (B) ONRR shall allow as a cost an amount equal to the allowable 
capital investment in the wash plant multiplied by the rate of return 
determined pursuant to paragraph (b)(2)(v) of this section. No allowance 
shall be provided for depreciation. This alternative shall apply only to 
plants first placed in service or acquired after March 1, 1989.
    (v) The rate of return shall be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return shall be the monthly 
average rate as published in Standard and Poor's Bond Guide for the 
first month of the reporting period for which the allowance is 
applicable and shall be effective during the reporting period. The rate 
shall be redetermined at the beginning of each subsequent washing 
allowance reporting period (which is determined pursuant to paragraph 
(c)(2) of this section).
    (3) The washing allowance for coal shall be determined based on the 
lessee's reasonable and actual cost of washing the coal. The lessee may 
not take an allowance for the costs of washing lease production that is 
not royalty bearing.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) With the 
exception of those washing allowances specified in paragraphs (c)(1)(v) 
and (c)(1)(vi) of this section, the lessee shall submit page one of the 
initial Form MMS-4292 prior to, or at the same time, as the

[[Page 841]]

washing allowance determined pursuant to an arm's-length contract is 
reported on Form MMS-4430, Solid Minerals Production and Royalty Report. 
A Form MMS-4292 received by the end of the month that the Form MMS-4430 
is due shall be considered to be received timely.
    (ii) The initial Form MMS-4292 shall be effective for a reporting 
period beginning the month that the lessee is first authorized to deduct 
a washing allowance and shall continue until the end of the calendar 
year, or until the applicable contract or rate terminates or is modified 
or amended, whichever is earlier.
    (iii) After the initial reporting period and for succeeding 
reporting periods, lessees must submit page one of Form MMS-4292 within 
3 months after the end of the calendar year, or after the applicable 
contract or rate terminates or is modified or amended, whichever is 
earlier, unless ONRR approves a longer period (during which period the 
lessee shall continue to use the allowance from the previous reporting 
period).
    (iv) ONRR may require that a lessee submit arm's-length washing 
contracts and related documents. Documents shall be submitted within a 
reasonable time, as determined by ONRR.
    (v) Washing allowances which are based on arm's-length contracts and 
which are in effect at the time these regulations become effective will 
be allowed to continue until such allowances terminate. For the purposes 
of this section, only those allowances that have been approved by ONRR 
in writing shall qualify as being in effect at the time these 
regulations become effective.
    (vi) ONRR may establish, in appropriate circumstances, reporting 
requirements that are different from the requirements of this section.
    (2) Non-arm's-length or no contract. (i) With the exception of those 
washing allowances specified in paragraphs (c)(2)(v) and (c)(2)(vii) of 
this section, the lessee shall submit an initial Form MMS-4292 prior to, 
or at the same time as, the washing allowance determined pursuant to a 
non-arm's-length contract or no contract situation is reported on Form 
MMS-4430, Solid Minerals Production and Royalty Report. A Form MMS-4292 
received by the end of the month that the Form MMS-4430 is due shall be 
considered to be timely received. The initial reporting may be based on 
estimated costs.
    (ii) The initial Form MMS-4292 shall be effective for a reporting 
period beginning the month that the lessee first is authorized to deduct 
a washing allowance and shall continue until the end of the calendar 
year, or until the washing under the non-arm's-length contract or the no 
contract situation terminates, whichever is earlier.
    (iii) For calendar-year reporting periods succeeding the initial 
reporting period, the lessee shall submit a completed Form MMS-4292 
containing the actual costs for the previous reporting period. If coal 
washing is continuing, the lessee shall include on Form MMS-4292 its 
estimated costs for the next calendar year. The estimated coal washing 
allowance shall be based on the actual costs for the previous period 
plus or minus any adjustments which are based on the lessee's knowledge 
of decreases or increases which will affect the allowance. Form MMS-4292 
must be received by ONRR within 3 months after the end of the previous 
reporting period, unless ONRR approves a longer period (during which 
period the lessee shall continue to use the allowance from the previous 
reporting period).
    (iv) For new wash plants, the lessee's initial Form MMS-4292 shall 
include estimates of the allowable coal washing costs for the applicable 
period. Cost estimates shall be based upon the most recently available 
operations data for the plant, or if such data are not available, the 
lessee shall use estimates based upon industry data for similar coal 
wash plants.
    (v) Washing allowances based on non-arm's-length or no contract 
situations which are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For the purposes of this section, only those allowances that have been 
approved by ONRR in writing shall qualify as being in effect at the time 
these regulations become effective.
    (vi) Upon request by ONRR, the lessee shall submit all data used by 
the lessee to prepare its Forms MMS-4292.

[[Page 842]]

The data shall be provided within a reasonable period of time, as 
determined by ONRR.
    (vii) ONRR may establish, in appropriate circumstances, reporting 
requirements which are different from the requirements of this section.
    (3) ONRR may establish coal washing allowance reporting dates for 
individual leases different from those specified in this subpart in 
order to provide more effective administration. Lessees will be notified 
of any change in their reporting period.
    (4) Washing allowances must be reported as a separate line on the 
Form MMS-4430, unless ONRR approves a different reporting procedure.
    (d) Interest assessments for incorrect or late reports and failure 
to report. (1) If a lessee deducts a washing allowance on its Form MMS-
4430 without complying with the requirements of this section, the lessee 
shall be liable for interest on the amount of such deduction until the 
requirements of this section are complied with. The lessee also shall 
repay the amount of any allowance which is disallowed by this section.
    (2) If a lessee erroneously reports a washing allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with Sec. 1218.202 of this chapter.
    (e) Adjustments. (1) If the actual coal washing allowance is less 
than the amount the lessee has taken on Form MMS-4430 for each month 
during the allowance form reporting period, the lessee shall be required 
to pay additional royalties due plus interest computed pursuant to Sec. 
1218.202, retroactive to the first month the lessee is authorized to 
deduct a washing allowance. If the actual washing allowance is greater 
than the amount the lessee has estimated and taken during the reporting 
period, the lessee shall be entitled to a credit, without interest.
    (2) The lessee must submit a corrected Form MMS-4430 to reflect 
actual costs, together with any payment, in accordance with instructions 
provided by ONRR.
    (f) Other washing cost determinations. The provisions of this 
section shall apply to determine washing costs when establishing value 
using a net-back valuation procedure or any other procedure that 
requires deduction of washing costs.

[61 FR 5481, Feb. 12, 1996, as amended at 66 FR 45769, Aug. 30, 2001]



Sec. 1206.459  Allocation of washed coal.

    (a) When coal is subjected to washing, the washed coal must be 
allocated to the leases from which it was extracted.
    (b) When the net output of coal from a washing plant is derived from 
coal obtained from only one lease, the quantity of washed coal allocable 
to the lease will be based on the net output of the washing plant.
    (c) When the net output of coal from a washing plant is derived from 
coal obtained from more than one lease, unless determined otherwise by 
BLM, the quantity of net output of washed coal allocable to each lease 
will be based on the ratio of measured quantities of coal delivered to 
the washing plant and washed from each lease compared to the total 
measured quantities of coal delivered to the washing plant and washed.



Sec. 1206.460  Transportation allowances--general.

    (a) For ad valorem leases subject to Sec. 1206.456 of this subpart, 
where the value for royalty purposes has been determined at a point 
remote from the lease or mine, ONRR shall, as authorized by this 
section, allow a deduction in determining value for royalty purposes for 
the reasonable, actual costs incurred to:
    (1) Transport the coal from an Indian lease to a sales point which 
is remote from both the lease and mine; or
    (2) Transport the coal from an Indian lease to a wash plant when 
that plant is remote from both the lease and mine and, if applicable, 
from the wash plant to a remote sales point. In-mine transportation 
costs shall not be included in the transportation allowance.
    (b) Under no circumstances will the authorized washing allowance and 
the transportation allowance reduce the value for royalty purposes to 
zero.
    (c)(1) When coal transported from a mine to a wash plant is eligible 
for a

[[Page 843]]

transportation allowance in accordance with this section, the lessee is 
not required to allocate transportation costs between the quantity of 
clean coal output and the rejected waste material. The transportation 
allowance shall be authorized for the total production which is 
transported. Transportation allowances shall be expressed as a cost per 
ton of cleaned coal transported.
    (2) For coal that is not washed at a wash plant, the transportation 
allowance shall be authorized for the total production which is 
transported. Transportation allowances shall be expressed as a cost per 
ton of coal transported.
    (3) Transportation costs shall only be recognized as allowances when 
the transported coal is sold and royalties are reported and paid.
    (d) If, after a review and/or audit, ONRR determines that a lessee 
has improperly determined a transportation allowance authorized by this 
section, then the lessee shall pay any additional royalties, plus 
interest, determined in accordance with Sec. 7thnsp;1218.202 of this 
chapter, or shall be entitled to a credit, without interest.
    (e) Lessees shall not disproportionately allocate transportation 
costs to Indian leases.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999]



Sec. 1206.461  Determination of transportation allowances.

    (a) Arm's-length contracts. (1) For transportation costs incurred by 
a lessee pursuant to an arm's-length contract, the transportation 
allowance shall be the reasonable, actual costs incurred by the lessee 
for transporting the coal under that contract, subject to monitoring, 
review, audit, and possible future adjustment. ONRR' prior approval is 
not required before a lessee may deduct costs incurred under an arm's-
length contract. However, before any deduction may be taken, the lessee 
must submit a completed page one of Form MMS-4293, Coal Transportation 
Allowance Report, in accordance with paragraph (c)(1) of this section. A 
transportation allowance may be claimed retroactively for a period of 
not more than 3 months prior to the first day of the month that Form 
MMS-4293 is filed with ONRR, unless ONRR approves a longer period upon a 
showing of good cause by the lessee.
    (2) In conducting reviews and audits, ONRR will examine whether the 
contract reflects more than the consideration actually transferred 
either directly or indirectly from the lessee to the transporter for the 
transportation. If the contract reflects more than the total 
consideration paid, then ONRR may require that the transportation 
allowance be determined in accordance with paragraph (b) of this 
section.
    (3) If ONRR determines that the consideration paid pursuant to an 
arm's-length transportation contract does not reflect the reasonable 
value of the transportation because of misconduct by or between the 
contracting parties, or because the lessee otherwise has breached its 
duty to the lessor to market the production for the mutual benefit of 
the lessee and the lessor, then ONRR shall require that the 
transportation allowance be determined in accordance with paragraph (b) 
of this section. When ONRR determines that the value of the 
transportation may be unreasonable, ONRR will notify the lessee and give 
the lessee an opportunity to provide written information justifying the 
lessee's transportation costs.
    (4) Where the lessee's payments for transportation under an arm's-
length contract are not based on a dollar-per-unit basis, the lessee 
shall convert whatever consideration is paid to a dollar value 
equivalent for the purposes of this section.
    (b) Non-arm's-length or no contract. (1) If a lessee has a non-
arm's-length contract or has no contract, including those situations 
where the lessee performs transportation services for itself, the 
transportation allowance will be based upon the lessee's reasonable 
actual costs. All transportation allowances deducted under a non-arm's-
length or no contract situation are subject to monitoring, review, 
audit, and possible future adjustment. Prior ONRR approval of 
transportation allowances is not required for non-arm's-length or no 
contract situations. However, before any estimated or actual deduction 
may be taken, the lessee must submit a completed Form MMS-

[[Page 844]]

4293 in accordance with paragraph (c)(2) of this section. A 
transportation allowance may be claimed retroactively for a period of 
not more than 3 months prior to the first day of the month that Form 
MMS-4293 is filed with ONRR, unless ONRR approves a longer period upon a 
showing of good cause by the lessee. ONRR will monitor the allowance 
deductions to ensure that deductions are reasonable and allowable. When 
necessary or appropriate, ONRR may direct a lessee to modify its 
estimated or actual transportation allowance deduction.
    (2) The transportation allowance for non-arm's-length or no contract 
situations shall be based upon the lessee's actual costs for 
transportation during the reporting period, including operating and 
maintenance expenses, overhead, and either depreciation and a return on 
undepreciated capital investment in accordance with paragraph 
(b)(2)(iv)(A) of this section, or a cost equal to the depreciable 
investment in the transportation system multiplied by the rate of return 
in accordance with paragraph (b)(2)(iv)(B) of this section. Allowable 
capital costs are generally those for depreciable fixed assets 
(including costs of delivery and installation of capital equipment) 
which are an integral part of the transportation system.
    (i) Allowable operating expenses include: Operations supervision and 
engineering; operations labor; fuel; utilities; materials; ad valorem 
property taxes; rent; supplies; and any other directly allocable and 
attributable operating expense which the lessee can document.
    (ii) Allowable maintenance expenses include: Maintenance of the 
transportation system; maintenance of equipment; maintenance labor; and 
other directly allocable and attributable maintenance expenses which the 
lessee can document.
    (iii) Overhead attributable and allocable to the operation and 
maintenance of the transportation system is an allowable expense. State 
and Federal income taxes and severance taxes and other fees, including 
royalties, are not allowable expenses.
    (iv) A lessee may use either paragraph (b)(2)(iv)(A) or paragraph 
(b)(2)(iv)(B) of this section. After a lessee has elected to use either 
method for a transportation system, the lessee may not later elect to 
change to the other alternative without approval of ONRR.
    (A) To compute depreciation, the lessee may elect to use either a 
straight-line depreciation method based on the life of equipment or on 
the life of the reserves which the transportation system services, 
whichever is appropriate, or a unit of production method. After an 
election is made, the lessee may not change methods without ONRR 
approval. A change in ownership of a transportation system shall not 
alter the depreciation schedule established by the original transporter/
lessee for purposes of the allowance calculation. With or without a 
change in ownership, a transportation system shall be depreciated only 
once. Equipment shall not be depreciated below a reasonable salvage 
value.
    (B) ONRR shall allow as a cost an amount equal to the allowable 
capital investment in the transportation system multiplied by the rate 
of return determined pursuant to paragraph (b)(2)(B)(v) of this section. 
No allowance shall be provided for depreciation. This alternative shall 
apply only to transportation facilities first placed in service or 
acquired after March 1, 1989.
    (v) The rate of return shall be the industrial rate associated with 
Standard and Poor's BBB rating. The rate of return shall be the monthly 
average as published in Standard and Poor's Bond Guide for the first 
month of the reporting period of which the allowance is applicable and 
shall be effective during the reporting period. The rate shall be 
redetermined at the beginning of each subsequent transportation 
allowance reporting period (which is determined pursuant to paragraph 
(c)(2) of this section).
    (3) A lessee may apply to ONRR for exception from the requirement 
that it compute actual costs in accordance with paragraphs (b)(1) and 
(b)(2) of this section. ONRR will grant the exception only if the lessee 
has a rate for the transportation approved by a Federal agency for 
Indian leases. ONRR shall deny the exception request if it determines 
that the rate is excessive as

[[Page 845]]

compared to arm's-length transportation charges by systems, owned by the 
lessee or others, providing similar transportation services in that 
area. If there are no arm's-length transportation charges, ONRR shall 
deny the exception request if:
    (i) No Federal regulatory agency cost analysis exists and the 
Federal regulatory agency has declined to investigate pursuant to ONRR 
timely objections upon filing; and
    (ii) The rate significantly exceeds the lessee's actual costs for 
transportation as determined under this section.
    (c) Reporting requirements--(1) Arm's-length contracts. (i) With the 
exception of those transportation allowances specified in paragraphs 
(c)(1)(v) and (c)(1)(vi) of this section, the lessee shall submit page 
one of the initial Form MMS-4293 prior to, or at the same time as, the 
transportation allowance determined pursuant to an arm's-length contract 
is reported on Form MMS-4430, Solid Minerals Production and Royalty 
Report.
    (ii) The initial Form MMS-4293 shall be effective for a reporting 
period beginning the month that the lessee is first authorized to deduct 
a transportation allowance and shall continue until the end of the 
calendar year, or until the applicable contract or rate terminates or is 
modified or amended, whichever is earlier.
    (iii) After the initial reporting period and for succeeding 
reporting periods, lessees must submit page one of Form MMS-4293 within 
3 months after the end of the calendar year, or after the applicable 
contract or rate terminates or is modified or amended, whichever is 
earlier, unless ONRR approves a longer period (during which period the 
lessee shall continue to use the allowance from the previous reporting 
period). Lessees may request special reporting procedures in unique 
allowance reporting situations, such as those related to spot sales.
    (iv) ONRR may require that a lessee submit arm's-length 
transportation contracts, production agreements, operating agreements, 
and related documents. Documents shall be submitted within a reasonable 
time, as determined by ONRR.
    (v) Transportation allowances that are based on arm's-length 
contracts and which are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For the purposes of this section, only those allowances that have been 
approved by ONRR in writing shall qualify as being in effect at the time 
these regulations become effective.
    (vi) ONRR may establish, in appropriate circumstances, reporting 
requirements that are different from the requirements of this section.
    (2) Non-arm's-length or no contract. (i) With the exception of those 
transportation allowances specified in paragraphs (c)(2)(v) and 
(c)(2)(vii) of this section, the lessee shall submit an initial Form 
MMS-4293 prior to, or at the same time as, the transportation allowance 
determined pursuant to a non-arm's-length contract or no contract 
situation is reported on Form MMS-4430, Solid Minerals Production and 
Royalty Report. The initial report may be based on estimated costs.
    (ii) The initial Form MMS-4293 shall be effective for a reporting 
period beginning the month that the lessee first is authorized to deduct 
a transportation allowance and shall continue until the end of the 
calendar year, or until the transportation under the non-arm's-length 
contract or the no contract situation terminates, whichever is earlier.
    (iii) For calendar-year reporting periods succeeding the initial 
reporting period, the lessee shall submit a completed Form MMS-4293 
containing the actual costs for the previous reporting period. If the 
transportation is continuing, the lessee shall include on Form MMS-4293 
its estimated costs for the next calendar year. The estimated 
transportation allowance shall be based on the actual costs for the 
previous reporting period plus or minus any adjustments that are based 
on the lessee's knowledge of decreases or increases that will affect the 
allowance. Form MMS-4293 must be received by ONRR within 3 months after 
the end of the previous reporting period, unless ONRR approves a longer 
period (during which period the lessee shall continue

[[Page 846]]

to use the allowance from the previous reporting period).
    (iv) For new transportation facilities or arrangements, the lessee's 
initial Form MMS-4293 shall include estimates of the allowable 
transportation costs for the applicable period. Cost estimates shall be 
based upon the most recently available operations data for the 
transportation system, or, if such data are not available, the lessee 
shall use estimates based upon industry data for similar transportation 
systems.
    (v) Non-arm's-length contract or no contract-based transportation 
allowances that are in effect at the time these regulations become 
effective will be allowed to continue until such allowances terminate. 
For purposes of this section, only those allowances that have been 
approved by ONRR in writing shall qualify as being in effect at the time 
these regulations become effective.
    (vi) Upon request by ONRR, the lessee shall submit all data used to 
prepare its Form MMS-4293. The data shall be provided within a 
reasonable period of time, as determined by ONRR.
    (vii) ONRR may establish, in appropriate circumstances, reporting 
requirements that are different from the requirements of this section.
    (viii) If the lessee is authorized to use its Federal-agency-
approved rate as its transportation cost in accordance with paragraph 
(b)(3) of this section, it shall follow the reporting requirements of 
paragraph (c)(1) of this section.
    (3) ONRR may establish reporting dates for individual lessees 
different than those specified in this paragraph in order to provide 
more effective administration. Lessees will be notified as to any change 
in their reporting period.
    (4) Transportation allowances must be reported as a separate line 
item on Form MMS-4430, unless ONRR approves a different reporting 
procedure.
    (d) Interest assessments for incorrect or late reports and failure 
to report. (1) If a lessee deducts a transportation allowance on its 
Form MMS-4430 without complying with the requirements of this section, 
the lessee shall be liable for interest on the amount of such deduction 
until the requirements of this section are complied with. The lessee 
also shall repay the amount of any allowance which is disallowed by this 
section.
    (2) If a lessee erroneously reports a transportation allowance which 
results in an underpayment of royalties, interest shall be paid on the 
amount of that underpayment.
    (3) Interest required to be paid by this section shall be determined 
in accordance with Sec. 1218.202 of this chapter.
    (e) Adjustments. (1) If the actual transportation allowance is less 
than the amount the lessee has taken on Form MMS-4430 for each month 
during the allowance form reporting period, the lessee shall be required 
to pay additional royalties due plus interest, computed pursuant to 
Sec. 1218.202 of this chapter, retroactive to the first month the 
lessee is authorized to deduct a transportation allowance. If the actual 
transportation allowance is greater than the amount the lessee has 
estimated and taken during the reporting period, the lessee shall be 
entitled to a credit, without interest.
    (2) The lessee must submit a corrected Form MMS-4430 to reflect 
actual costs, together with any payment, in accordance with instructions 
provided by ONRR.
    (f) Other transportation cost determinations. The provisions of this 
section shall apply to determine transportation costs when establishing 
value using a net-back valuation procedure or any other procedure that 
requires deduction of transportation costs.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999; 66 
FR 45769, Aug. 30, 2001]



Sec. 1206.462  [Reserved]



Sec. 1206.463  In-situ and surface gasification and liquefaction operations.

    If an ad valorem Federal coal lease is developed by in-situ or 
surface gasification or liquefaction technology, the lessee shall 
propose the value of coal for royalty purposes to ONRR. ONRR will review 
the lessee's proposal and issue a value determination. The lessee may 
use its proposed value until ONRR issues a value determination.

[61 FR 5481, Feb. 12, 1996, as amended at 64 FR 43289, Aug. 10, 1999]

[[Page 847]]



Sec. 1206.464  Value enhancement of marketable coal.

    If, prior to use, sale, or other disposition, the lessee enhances 
the value of coal after the coal has been placed in marketable condition 
in accordance with Sec. 1206.456(h) of this subpart, the lessee shall 
notify ONRR that such processing is occurring or will occur. The value 
of that production shall be determined as follows:
    (a) A value established for the feedstock coal in marketable 
condition by application of the provisions of Sec. 1206.456(c)(2) (i) 
through (iv) of this subpart; or,
    (b) In the event that a value cannot be established in accordance 
with paragraph (a) of this section, then the value of production will be 
determined in accordance with Sec. 1206.456(c)(2)(v) of this subpart 
and the value shall be the lessee's gross proceeds accruing from the 
disposition of the enhanced product, reduced by ONRR-approved processing 
costs and procedures including a rate of return on investment equal to 
two times the Standard and Poor's BBB bond rate applicable under Sec. 
1206.458(b)(2)(v) of this subpart.

[61 FR 5481, Feb. 12, 1996, as amended 64 FR 43289, Aug. 10, 1999]



PART 1207_SALES AGREEMENTS OR CONTRACTS GOVERNING THE DISPOSAL OF LEASE 

PRODUCTS--Table of Contents



                      Subpart A_General Provisions

Sec.
1207.1 Required recordkeeping.
1207.2 Definitions.
1207.3 Contracts made pursuant to new form leases.
1207.4 Contracts made pursuant to old form leases.
1207.5 Contract and sales agreement retention.

Subpart B--Oil, Gas and OCS Sulfur, General [Reserved]

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal Resources [Reserved]

Subpart I--OCS Sulfur [Reserved]

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq.; 25 U.S.C. 
396a et seq.; 25 U.S.C. 2101 et seq.; 30 U.S.C. 181 et seq.; 30 U.S.C. 
351 et seq.; 30 U.S.C. 1001 et seq.; 30 U.S.C. 1701 et seq.; 31 U.S.C. 
3716 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et seq.; 43 U.S.C. 1331 et 
seq.; and 43 U.S.C. 1801 et seq.

    Source: 53 FR 1225, Jan. 15, 1988, unless otherwise noted. 
Redesignated at 75 FR 61080, Oct. 4, 2010.



                      Subpart A_General Provisions



Sec. 1207.1  Required recordkeeping.

    (a) The information collection and recordkeeping requirements 
contained in this part have been approved by OMB under 44 U.S.C. 3501 et 
seq. and assigned OMB Clearance Number 1010-0061. The information 
collected will be used to determine a proper transportation allowance 
for the cost of transporting royalty oil from the lease to a delivery 
point remote from the lease. The information is required in order to 
obtain a benefit and is collected in accordance with the Federal Oil and 
Gas Royalty Management Act of 1982, 30 U.S.C. 1701 et seq.
    (b) Public reporting burden is estimated to average 30 minutes per 
year for each record keeper to maintain copies of sales contracts, 
agreements, or other documents relevant to the valuation of production. 
Send any comments regarding this burden estimate or any other aspect of 
this requirement to the Information Collection Clearance Officer, Bureau 
of Ocean Energy Management, Regulation, and Enforcement, 381 Elden 
Street, Herndon, VA 22070, and to the Office of Information

[[Page 848]]

and Regulatory Affairs, Office of Management and Budget, Paperwork 
Reduction Project 1010-0061, Washington, DC 20503.

[57 FR 41864, Sept. 14, 1992, as amended at 58 FR 64901, Dec. 10, 1994]



Sec. 1207.2  Definitions.

    The definitions in part 1206 of this title are applicable to this 
part.



Sec. 1207.3  Contracts made pursuant to new form leases.

    On November 29, 1950 (15 FR 8585), a new lease form was adopted 
(Form 4-1158, 15 FR 8585) containing provisions whereby the lessee 
agrees that nothing in any contract or other arrangement made for the 
sale or disposal of oil, gas, natural gasoline, and other products of 
the leased land, shall be construed as modifying any of the provisions 
of the lease, including, but not limited to, provisions relating to gas 
waste, taking royalty-in-kind, and the method of computing royalties due 
as based on a minimum valuation and in accordance with the oil and gas 
valuation regulations. A contract or agreement pursuant to a lease 
containing such provisions may be made without obtaining prior approval 
of the United States as lessor, but must be retained as provided in 
Sec. 1207.5 of this subpart.



Sec. 1207.4  Contracts made pursuant to old form leases.

    (a) Old form leases are those containing provisions prohibiting 
sales or disposal of oil, gas, natural gasoline, and other products of 
the lease except in accordance with a contract or other arrangement 
approved by the Secretary of the Interior, or by the Director of the 
Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) 
or his/her representative. A contract or agreement made pursuant to an 
old form lease may be made without obtaining approval if the contract or 
agreement contains either the substance of or is accompanied by the 
stipulation set forth in paragraph (b) of this section, signed by the 
seller (lessee or operator).
    (b) The stipulation, the substance of which must be included in the 
contract, or be made the subject matter of a separate instrument 
properly identifying the leases affected thereby, is as follows:

    It is hereby understood and agreed that nothing in the written 
contract or in any approval thereof shall be construed as affecting any 
of the relations between the United States and its lessee, particularly 
in matters of gas waste, taking royalty in kind, and the method of 
computing royalties due as based on a minimum valuation and in 
accordance with the terms and provisions of the oil and gas valuation 
regulations applicable to the lands covered by said contract.



Sec. 1207.5  Contract and sales agreement retention.

    Copies of all sales contracts, posted price bulletins, etc., and 
copies of all agreements, other contracts, or other documents which are 
relevant to the valuation of production are to be maintained by the 
lessee and made available upon request during normal working hours to 
authorized Office of Natural Resources Revenue (ONRR), State or Indian 
representatives, BOEMRE or BLM officials, auditors of the General 
Accounting Office, or other persons authorized to receive such 
documents, or shall be submitted to ONRR within a reasonable period of 
time, as determined by ONRR. Any oral sales arrangement negotiated by 
the lessee must be placed in written form and retained by the lessee. 
Records shall be retained in accordance with 30 CFR part 1212.

Subpart B--Oil, Gas, and OCS Sulfur, General [Reserved]

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal Resources [Reserved]

[[Page 849]]

Subpart I--OCS Sulfur [Reserved]



PART 1208_SALE OF FEDERAL ROYALTY OIL--Table of Contents



                       Subpart A_General Provisons

Sec.
1208.1 General.
1208.2 Definitions.
1208.3 Information collection.
1208.4 Royalty oil sales to eligible refiners.
1208.5 Notice of royalty oil sale.
1208.6 General application procedures.
1208.7 Determination of eligibility.
1208.8 Transportation and delivery.
1208.9 Agreements.
1208.10 Notices.
1208.11 Surety requirements.
1208.12 Payment requirements.
1208.13 Reporting requirements.
1208.14 Civil and criminal penalties.
1208.15 Audits.
1208.16 How to appeal a contracting officer's decision that you receive.
1208.17 Suspensions for national emergencies.

    Authority: 5 U.S.C. 301 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 
1701 et seq.; 31 U.S.C. 9701; 41 U.S.C. 601 et seq.; 43 U.S.C. 1301 et 
seq., 1331 et seq., and 1801 et seq.

    Source: 52 FR 41913, Oct. 30, 1987, unless otherwise noted. 
Redesignated at 75 FR 61080, Oct. 4, 2010.



                      Subpart A_General Provisions



Sec. 1208.1  General.

    The regulations in this part govern the sale of royalty oil by the 
United States to eligible refiners. The regulations apply to royalty oil 
from leases on Federal lands onshore and on the Outer Continental Shelf 
(OCS).



Sec. 1208.2  Definitions.

    Allotment means the quantity of royalty oil that DOI determines is 
available to each eligible refiner that has applied for a portion of the 
total volume of royalty oil offered in a given royalty oil sale.
    Application means the formal written request to DOI on Form MMS-4070 
by an eligible refiner interested in purchasing a quantity of royalty 
oil from the approximate volume announced by DOI in a given ``Notice of 
Availability of Royalty Oil.''
    Area or Region means the geographic territory having Federal oil and 
gas leases over which ONRR has jurisdiction, unless the context in which 
those words are used indicates that a different meaning is intended.
    Contracting officer means the Director, his or her delegate, or the 
person designated under a royalty oil purchase contract.
    Contracting officer's decision means an ONRR order or decision that 
a contracting officer issues under this part to a purchaser of oil under 
a royalty oil purchase contract.
    Delivery point means the point where the lessor, in accordance with 
lease terms, directs the lessee to deliver royalty oil to a purchaser. 
Title to the royalty oil, or to the quantity thereof in a commingled 
stream, passes from the Federal Government to the purchaser at this 
designated point, which is specified in the royalty oil contract. For 
onshore leases, the delivery point will be on or adjacent to the lease, 
except as provided in Sec. 1208.8(a) of this part. In instances where 
an onshore delivery point is designated for offshore royalty oil, such 
point generally will be the first onshore point where the price of the 
oil, including transportation costs, can be determined and where the 
purchaser can either exchange or take delivery of the oil. The 
Government does not guarantee physical access to the oil at such point.
    Director means the Director of ONRR, who is responsible for its 
overall direction, or his or her delegate(s).
    DOI means the Department of the Interior, including the Secretary or 
his or her delegate(s).
    Eligible refiner means a refiner of crude oil that meets the 
following criteria for eligibility to purchase royalty oil:
    (1) For the purchase of royalty oil from onshore leases, it means a 
refiner that qualifies as a small and independent refiner as those terms 
are defined in sections 3(3) and 3(4) of the Emergency Petroleum 
Allocation Act, 15 U.S.C. 751 et seq., except that the time period for 
determination contained in section 3(3)(A) would be the calendar quarter 
immediately preceding the date of the applicable ``Notice of 
Availability of Royalty Oil.'' A refiner that, together with all persons

[[Page 850]]

controlled by, in control of, under common control with, or otherwise 
affiliated with the refiner, inputs a volume of domestic crude oil from 
its own production exceeding 30 percent of its total refinery input of 
crude oil is ineligible to participate in royalty oil sales under this 
part. Crude oil received in exchange for such refiner's own production 
is considered to be that refiner's own production for purposes of this 
section.
    (2) For the purchase of royalty oil from leases on the OCS, it means 
a refiner that qualifies as a small business enterprise under the rules 
of the Small Business Administration (13 CFR part 121).
    Entitlement means the volume of royalty oil from the Federal 
Government's share of production from a Federal lease which a purchaser 
is entitled to receive under a royalty oil contract.
    Exchange agreement means a written agreement between the purchaser 
and another person for the exchange of royalty oil purchased under this 
part for other oil on a volume or equivalent value basis.
    Fair market value means the value of oil--(1) Computed at a unit 
price equivalent to the average unit price at which oil was sold 
pursuant to a lease during the period for which any royalty or net 
profit share is accrued or reserved to the United States pursuant to 
such lease, or
    (2) If there were no such sales, or if the Secretary finds that 
there were an insufficient number of such sales to equitably determine 
such value, computed at the average unit price at which oil was sold 
pursuant to other leases in the same region of the OCS during such 
period, or
    (3) If there were no sales of oil from such region during such 
period, or if the Secretary finds that there are an insufficient number 
of such sales to equitably determine such value, at an appropriate price 
determined by the Secretary.
    Federal lease means a contractual agreement with the Federal 
Government which authorizes the exploration, development, and production 
of oil and gas on Federal lands onshore or on the OCS.
    Interim sale means a sale conducted as a result of substantial 
additional royalty oil becoming available in a specific area prior to 
the scheduled expiration date of royalty oil contracts in effect for 
that area.
    Lessee means any person to whom the United States issues a lease, or 
any person who has been assigned an obligation to make royalty or other 
payments required by the lease.
    Notice of Availability of Royalty Oil means a notice published by 
DOI in the Federal Register (and in other printed media when 
appropriate, such as a newspaper or magazine of general or specialized 
circulation) to advise interested parties of the availability of royalty 
oil for purchase by eligible refiners and the approximate volume of 
royalty oil available to the applicants.
    OCS means the Outer Continental Shelf, as defined in 43 U.S.C. 
1331(a).
    OCSLA means the Outer Continental Shelf Lands Act (43 U.S.C. 1331 et 
seq., as amended by 43 U.S.C. 1801 et seq.).
    Oil means a mixture of hydrocarbons that existed in the liquid phase 
in natural underground reservoirs and remains liquid at atmospheric 
pressure after passing through surface separating facilities and is 
marketed or used as such. Condensate recovered in lease separators or 
field facilities is considered to be oil.
    ONRR means the Office of Natural Resources Revenue of the Department 
of the Interior.
    Operator means any person, including a lessee, who has control of or 
who manages operations on an oil and gas lease site on Federal onshore 
lands or on the OCS.
    Payor means any person responsible for reporting royalties from a 
Federal lease or leases on Form MMS-2014.
    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture.
    Preference eligible refiner means an eligible refiner with at least 
one operating refinery which is located within the area designated as 
the preference eligible area in the ``Notice of Availability of Royalty 
Oil.'' A refiner may be deemed to be a preference eligible refiner if it 
owns a refinery located in the preference eligible area which is

[[Page 851]]

not operational if the refiner meets the requirements of Sec. 1208.7(g) 
of this part.
    Purchaser means anyone who acquires royalty oil sold by DOI under 
the Federal Government's Royalty-in-Kind (RIK) Program and who has a 
contractual obligation under an agreement to purchase royalty oil.
    Reallocation means an offering of royalty oil previously allocated 
in a specific sale but subsequently turned back to ONRR. A reallocation 
would only be made if substantial amounts of royalty oil are turned 
back.
    Refined petroleum product means gasoline, kerosene, distillates 
(including Number 2 fuel oil), refined lubricating oils, or diesel fuel.
    Royalty oil means that amount of oil that DOI takes in kind in 
partial or full satisfaction of a lessee's royalty or net profit share 
obligations as determined by whatever lease interest the lessee holds 
under an applicable mineral leasing law.
    Secretary means the Secretary of the Department of the Interior or 
his/her delegate(s).
    Section 6 lease means an oil and gas lease originally issued by any 
State and currently maintained in effect pursuant to section 6 of the 
OCSLA.
    Section 8 lease means an oil and gas lease originally issued by the 
United States pursuant to section 8 of the OCSLA.

[52 FR 41913, Oct. 30, 1987; 52 FR 45528, Nov. 30, 1987, as amended at 
58 FR 64901, Dec. 10, 1993; 64 FR 26251, May 13, 1999]



Sec. 1208.3  Information collection.

    The information collection requirements contained in this part have 
been approved by OMB under 44 U.S.C. 3501 et seq. The form, filing date, 
and approved OMB clearance number are identified in 30 CFR 210.10.

[58 FR 64901, Dec. 10, 1993]



Sec. 1208.4  Royalty oil sales to eligible refiners.

    (a) Determination to take royalty oil in kind. The Secretary may 
evaluate crude oil market conditions from time to time. The evaluation 
will include, among other things, the availability of crude oil and the 
crude oil requirements of the Federal Government, primarily those 
requirements concerning matters of national interest and defense. The 
Secretary will review these items and will determine whether eligible 
refiners have access to adequate supplies of crude oil and whether such 
oil is available to eligible refiners at equitable prices. Such 
determinations may be made on a regional basis. The determination by the 
Secretary shall be published in the Federal Register concurrent with or 
included in the ``Notice of Availability of Royalty Oil'' required by 
Sec. 1208.5.
    (b) Sale to eligible refiners. (1) Upon a determination by the 
Secretary under paragraph (a) of this section that eligible refiners do 
not have access to adequate supplies of crude oil at equitable prices, 
the Secretary, at his or her discretion, may elect to take in kind some 
or all of the royalty oil accruing to the United States from oil and gas 
leases on Federal lands onshore and on the OCS. The Secretary may 
authorize ONRR to offer royalty oil for sale to eligible refiners only 
for use in their refineries and not for resale (other than under an 
exchange agreement).
    (2) All sales of royalty oil from onshore leases will be priced at 
the royalty value that would have been determined for that oil pursuant 
to 30 CFR part 1206 had the royalties been paid in value rather than 
taken in kind. All sales of royalty oil from OCS leases will be priced 
at the fair market value of the oil including associated transportation 
costs to the designated delivery point, if applicable.
    (3) An eligible refiner must have a representative at a sale in 
order to participate. The Secretary may, at his or her discretion, 
establish purchase limitations and withhold any royalty oil from any 
offering.
    (c) Upon a determination by the Secretary under paragraph (a) of 
this section that eligible refiners do have access to adequate supplies 
of crude oil at equitable prices, ONRR will not take royalties in kind 
from oil and gas leases for exclusive sale to such refiners. Such 
determinations may be made on a regional basis.
    (d) Interim sales. The ONRR generally will not conduct interim 
sales. However, interim sales may be held at the

[[Page 852]]

discretion of the Secretary if substantial addition royalty oil becomes 
available. The potentially eligible refiners, individually or 
collectively, must submit documentation demonstrating that adequate 
supplies of crude oil at equitable prices are not available for 
purchase. Although sufficient documentation must be submitted, it is not 
mandatory for each potentially eligible refiner to participate in a 
submission of such documentation to be determined eligible. The 
documentation must be submitted to ONRR for a determination as to 
whether an interim sale is needed.

[52 FR 41913, Oct. 30, 1987, as amended at 66 FR 28657, May 24, 2001]



Sec. 1208.5  Notice of royalty oil sale.

    If the Secretary decides to take royalty oil in kind for sale to 
eligible refiners, ONRR will issue a ``Notice of Availability of Royalty 
Oil'' specifying the manner in which the sale is to be effected, the 
approximate quantity of royalty oil to be offered, information required 
in applications, the closing date for the receipt of applications for 
royalty oil, and other general administrative details concerning the 
application, allocation, and contract award process for the royalty oil. 
The Notice will describe generally the terms under which the royalty oil 
contracts will be awarded and will specify which applicants will be 
deemed preference eligible refiners in the sale proceedings. The Notice 
will also contain guidelines for reallocation procedures in the event 
substantial quantities of royalty oil sold in that specific sale are 
subsequently turned back to ONRR. Only those purchasers that hold 
ongoing contracts from that specific sale will be allowed to participate 
in any reallocation, which would be voluntary, and then only if they 
continue to meet eligibility requirements as set forth in Sec. Sec. 
1208.2 and 1208.7. If a reallocation is held prior to the effective date 
of the contracts as specified in the ``Notice of Availability of Royalty 
Oil'', all eligible refiners that selected a lease or leases in that 
specific sale would be allowed to participate, pursuant to the 
procedures in the Notice.



Sec. 1208.6  General application procedures.

    (a) To apply for the purchase of royalty oil, an applicant must file 
a Form MMS-4070 with ONRR in accordance with instructions provided in 
the ``Notice of Availability of Royalty Oil'' and in accordance with any 
instructions issued by ONRR for completion of Form MMS-4070. The 
applicant will be required to submit a letter of intent from a qualified 
financial institution stating that it would be granted surety coverage 
for the royalty oil for which it is applying, or other such proof of 
surety coverage, as deemed acceptable by ONRR. The letter of intent must 
be submitted with a completed Form MMS-4070.
    (b) In addition to any other application requirements specified in 
the Notice, the following information is required on Form MMS-4070 at 
the time of application:
    (1) Name and address of the applicant, the location of the 
applicant's refinery or refineries, and disclosure of the applicant's 
affiliation with any other persons.
    (2) The capacity of the applicant's refineries in barrels of crude 
oil throughput per calendar day and a tabulation for the past 12 months 
of oil processed for each refinery, identified as to source (from own 
production or from other sources).
    (3) Identification of any Government royalty oil contracts under 
which the applicant is currently receiving royalty oil.
    (4) Identification of the locations (area/region and State) where 
the applicant proposes to purchase royalty oil, the volume of oil 
requested, and the specific refineries in which the oil will be refined.
    (5) A certification from the applicant that it is an eligible 
refiner for the purchase of Government royalty oil, as defined in Sec. 
1208.2 of this part.

[52 FR 41913, Oct. 30, 1987, as amended at 58 FR 64901, Dec. 10, 1993]



Sec. 1208.7  Determination of eligibility.

    (a) The ONRR will examine each application and may request 
additional information if the information in the

[[Page 853]]

application is inadequate. An application received after the close of 
the application period will be rejected. If additional information is 
requested by ONRR, it must be received by the time specified or the 
application will be rejected.
    (b) After the close of the application period and the receipt of any 
additional requested information, ONRR will determine which applicants 
may participate in the royalty oil sale and the quantity of royalty oil 
which each applicant is authorized to purchase.
    (c) When applications are filed by two or more eligible refiners for 
the same royalty oil, the oil will be allocated among such applicants on 
an equitable basis as determined by ONRR. Preference eligible refiners 
will be given priority in the allocation procedures in sales and 
subsequent reallocations of royalty oil.
    (d) No eligible refiner shall be awarded contracts for volumes of 
royalty oil that, when added to volumes of other Federal royalty oil 
being received, are in excess of 60 percent of the combined refinery 
capacity of that refiner.
    (e) The ONRR may exclude any section 6 lease from a royalty oil 
sale.
    (f) If two or more eligible refiners are related through common 
ownership or control or otherwise affiliated, only one of them shall be 
entitled to an allotment of royalty oil from a specific sale.
    (g) Any applicant whose refinery is not in operation during the 60-
day period prior to the date of the royalty oil sale shall not be 
entitled to participate in the sale unless such applicant self-certifies 
and demonstrates to the satisfaction of ONRR that it will begin 
operations by the first month in which oil becomes available under a 
royalty oil contract. If operations do not begin by that month, ONRR 
will terminate the contract.
    (h) Applicants or purchasers that have delinquent balances with ONRR 
as of the date of a royalty oil sale or subsequent reallocation will not 
be allowed to participate in that sale or reallocation. If a person 
which is controlled by, in control of, under common control with, or 
otherwise affiliated with an applicant or purchaser has such delinquent 
balances, the applicant or purchaser will not be allowed to participate 
in a royalty oil sale or reallocation. To the extent a purchaser or 
affiliated person has appealed a billing and posted a surety instrument 
in accordance with the contract terms and applicable ONRR regulations or 
other law, the balance shall not be considered delinquent.
    (i) A purchaser must meet the eligibility criteria on the date of 
contract issuance. However, a change in a purchaser's eligibility status 
during the term of the contract will not affect the purchaser's right to 
continue that contract until its term expires, including any extensions 
thereof.

[52 FR 41913, Oct. 30, 1987, as amended at 58 FR 64901, Dec. 10, 1993]



Sec. 1208.8  Transportation and delivery.

    (a) The lessee shall deliver royalty oil from onshore leases to the 
purchaser at a point on or adjacent to the lease pursuant to the terms 
of the lease. If the purchaser does not have access to its onshore 
royalty oil entitlement at facilities on or adjacent to the lease, the 
operator of the lease must designate an alternate delivery point at no 
additional cost to the purchaser or the Government. The purchaser must 
have physical access to the oil at the alternate delivery point and such 
point must be approved by ONRR.
    (b) The lessee shall deliver royalty oil from section 8 offshore 
leases issued after September 1969 at a delivery point to be designated 
by ONRR. The lessee shall deliver royalty oil from section 8 offshore 
leases issued before October 1969 or from section 6 leases at a delivery 
point to be designated by the lessee. If the delivery point is on or 
immediately adjacent to the lease, the royalty oil will be delivered 
without cost to the Federal Government as an undivided portion of 
production in marketable condition at pipeline connections or other 
facilities provided by the lessee, unless other arrangements are 
approved by ONRR. If the delivery point is not on or immediately 
adjacent to the lease, ONRR will reimburse the lessee for the reasonable 
cost of transportation to such point in an amount not to exceed the 
transportation allowance determined pursuant

[[Page 854]]

to 30 CFR part 1206. The ONRR will include such transportation costs in 
the price charged for the oil taken in kind to reflect the value of the 
oil at the delivery point. Arrangements for delivery of the royalty oil 
from, or exchange of the oil at, the delivery point, and related 
transportation costs, are the responsibility of the purchaser of the 
royalty oil. In addition, quality differentials between the royalty oil 
to which a purchaser is entitled and the oil which is made available at 
the delivery point are matters to be resolved between the purchaser and 
the operator.
    (c) When the purchaser has physical access to the royalty oil at the 
delivery point, the lessee shall deliver such oil in marketable 
condition at pipeline connections or other facilities designated by 
ONRR. If the lessee is unable to provide the royalty portion of actual 
production from the lease, the lessee must provide crude oil to the 
purchaser which is equivalent in volume or value to the royalty oil to 
which the purchaser is entitled. The lessee will deliver the royalty oil 
to the purchaser during normal operating hours and in reasonable 
quantities and intervals. The lessee will make available and the 
purchaser will accept delivery of the royalty oil entitlement no later 
than the last day of the calendar month immediately following the 
calendar month in which the oil was produced. Failure to accept 
deliveries shall constitute grounds for the termination of the contract.
    (d) Upon termination of deliveries under a royalty oil contract, the 
transportation allowance and delivery point designation authorized by 
this section no longer will remain in effect.



Sec. 1208.9  Agreements.

    (a) A purchaser must submit to ONRR two copies of any written third-
party agreements, or two copies of a full written explanation of any 
oral third-party agreements, relating to the method and costs of 
delivery of royalty oil, or crude oil exchanged for the royalty oil, 
from the point of delivery under the contract to the purchaser's 
refinery. In addition, the purchaser must submit copies of agreements 
pertaining to quality differentials which may occur between leases and 
delivery points.
    (b) A purchaser may not sell royalty oil which it purchases pursuant 
to this part except for purposes of an exchange for other crude oil on a 
volume or equivalent value basis.
    (c) Royalty oil purchased under this part, or crude oil received in 
exchange for such royalty oil, must be processed into refined petroleum 
products in the purchaser's refinery.



Sec. 1208.10  Notices.

    (a) The ONRR shall notify each operator, by certified mail, of the 
Secretary's decision to take royalty oil in kind. This notice shall be 
mailed at least 45 days in advance of the effective date of delivery and 
will specify delivery points for offshore oil for OCS leases issued 
after September 1969.
    (b) Deliveries of royalty oil may be partially terminated only with 
the written approval of the Director, ONRR.
    (c) Before terminating the delivery of royalty oil taken in kind, 
ONRR, if possible, will notify each operator by certified mail of the 
change in requirements at least 30 days in advance of the effective 
date.
    (d) After ONRR notification that royalty oil will be taken in kind, 
the operator shall be responsible for notifying each working interest on 
the Federal lease. As soon as practicable after the date of each royalty 
oil sale, ONRR will publish in the Federal Register a notice of the 
leases from which royalty oil will be taken, the purchasers of the 
royalty oil, and the leases from which royalty oil deliveries will be 
discontinued on terminated contracts.
    (e) A purchaser cannot transfer, assign, or sell its rights or 
interest in a royalty oil contract without written approval of the 
Director, ONRR. If the purchaser changes ownership or its assets are 
sold or liquidated for any reason, it cannot transfer, assign, or sell 
its rights or interest in the royalty oil contract without written 
approval of the Director, ONRR. Without express written consent from 
ONRR for a change in ownership, the royalty oil contract shall be 
terminated. The successor company must meet the definition of an 
eligible refiner in Sec. 1208.2 of

[[Page 855]]

this part for ONRR to consider assignment of the royalty oil contract.



Sec. 1208.11  Surety requirements.

    (a) The eligible purchaser, prior to execution of the contract, 
shall furnish an ``ONRR-specified surety instrument,'' in an amount 
equal to the estimated value of royalty oil that could be taken by the 
purchaser in a 99-day period, plus related administrative charges. The 
ONRR may require the purchaser to increase the amount of the surety 
instrument when necessary to protect the Government's interest or may 
allow the purchaser to decrease the amount of the surety instrument 
where necessary to further the purposes of the Royalty-in-Kind Program.
    (b) If a letter of credit is furnished as the surety instrument, it 
must be effective for a 9-month period beginning the first day the 
royalty oil contract is effective, with a clause providing for automatic 
renewal monthly for a new 9-month period. The purchaser or its surety 
company may elect not to renew the letter of credit at any monthly 
anniversary date, but must notify ONRR of its intent not to renew at 
least 30 days prior to the anniversary date. The ONRR may grant the 
purchaser 45 days to obtain a new surety instrument. If no replacement 
surety instrument is provided, ONRR will terminate the contract 
effective at least 6 months prior to the expiration date of the letter 
of credit. Notwithstanding the above provisions, the letter of credit 
also may contain a clause providing for automatic termination 6 months 
after the royalty oil contract terminates. If a certificate of deposit 
is furnished as the surety instrument, it must be effective for the life 
of the contract plus 6 months after the royalty oil contract terminates.
    (c) For the purposes of this section, an ``ONRR-specified surety 
instrument'' means either: an ONRR-specified surety bond, an ONRR-
specified irrevocable letter of credit, or a financial institution book-
entry certificate of deposit.
    (d) The ``ONRR-specified surety instrument'' shall be in a form 
specified by ONRR instructions or approved by ONRR. A bond must be 
issued by a qualified surety company that has been approved by the 
Department of the Treasury. An irrevocable letter of credit or a 
certificate of deposit must be from a financial institution acceptable 
to ONRR. The ONRR will use a bank rating service to determine whether a 
financial institution has an acceptable rating to provide a surety 
instrument deemed adequate to indemnify the Government from loss or 
damage.
    (e) All surety instruments must be in a form acceptable to ONRR and 
must include such other specific requirements as ONRR may require 
adequately to protect the Government's interests.

[58 FR 64901, Dec. 10, 1993]



Sec. 1208.12  Payment requirements.

    (a) All payments to ONRR by a purchaser of royalty oil will be due 
on the date and at the location specified in the contract, or, if there 
is no contractual provision, as specified by ONRR. The purchaser shall 
tender all payments to ONRR in accordance with Sec. 1218.51 of this 
chapter. Payments made by a payor pursuant to the requirements of 
paragraph (b) of this section and Sec. 1208.13 also shall be tendered 
in accordance with Sec. 1218.51 of this chapter.
    (b)(1) Payments from a purchaser of royalty oil not received by ONRR 
when due, or that portion of the payment less than the full amount due, 
will be subject to a late payment charge equivalent to an interest 
assessment on the amount past due for the number of days that the 
payment is late at the underpayment rate applicable under section 6621 
of the Internal Revenue Code of 1954.
    (2) The ONRR may assess interest to a payor for any underpayments 
which are the result of the payor's late or underreporting, or for 
adjustments reported by the payor, or made as a result of audit, 
reconciliation, or other procedures. The interest for late payment and 
underpayment will be assessed pursuant to Sec. 1218.54 of this chapter.
    (c) If payment for royalty oil is not received by the due date 
specified in the contract, a notice of nonreceipt will be sent to the 
purchaser by certified mail. If payment is not received by ONRR within 
15 days from the date

[[Page 856]]

of such notice, ONRR may cancel the contract and collect under the ONRR-
specified surety instrument. See Sec. 1208.11.
    (d) If the purchaser disagrees with the amount of payment due, it 
must pay the amount due as computed by ONRR, unless the purchaser 
appeals the amount and posts an ONRR-specified surety instrument 
pursuant to the provisions of 30 CFR part 1243. The ONRR may, at its 
discretion, waive the appeal surety requirements if it determines that 
the contract surety instrument is sufficient protection for an amount 
under appeal.

[52 FR 41913, Oct. 30, 1987, as amended at 64901, Dec. 10, 1993]



Sec. 1208.13  Reporting requirements.

    If ONRR underbills a purchaser under a royalty oil contract because 
of a payor's underreporting or failure to report on Form MMS-2014 
pursuant to Sec. 1210.52 of this chapter, the payor will be liable for 
payment of such underbilled amounts plus interest if they are 
unrecoverable from the purchaser or the surety instrument related to the 
contract.

[58 FR 64902, Dec. 10, 1993]



Sec. 1208.14  Civil and criminal penalties.

    Failure to abide by the regulations in this part may result in civil 
and criminal penalties being levied on that person as specified in 
sections 109 and 110 of the Federal Oil and Gas Royalty Management Act 
of 1982, 30 U.S.C. 1719-20, and regulations at 30 CFR part 241. Civil 
penalties applicable under the OCSLA and the Mineral Leasing Act of 1920 
may also be imposed.



Sec. 1208.15  Audits.

    Audits of the accounts and books of lessees, operators, payors, and/
or purchasers of royalty oil taken in kind may be made annually or at 
such other times as may be directed by ONRR. Such audits will be for the 
purpose of determining compliance with applicable statutes, regulations, 
and royalty oil contracts.



Sec. 1208.16  How to appeal a contracting officer's decision that you receive.

    If you receive a contracting officer's decision, you may:
    (a) Appeal that decision to the Board of Contract Appeals in the 
Office of Hearings and Appeals, Office of the Secretary, in accordance 
with the procedures provided in 43 CFR part 4, subpart C; or
    (b) File an action in the United States Court of Federal Claims.

[64 FR 26251, May 13, 1999]



Sec. 1208.17  Suspensions for national emergencies.

    The Secretary of the Department of the Interior, upon a 
recommendation by the Secretary of Defense or the Secretary of Energy 
and with the approval of the President, may suspend operations under 
these regulations and suspend royalty oil contracts during a national 
emergency declared by the Congress or the President.



PART 1210_FORMS AND REPORTS--Table of Contents



                      Subpart A_General Provisions

Sec.
1210.01 What is the purpose of this subpart?
1210.02 To whom do these regulations apply?
1210.10 What are the OMB-approved information collections?
1210.20 What if I disagree with the burden hour estimates?
1210.21 How do I report my taxpayer identification number?
1210.30 What are my responsibilities as a reporter/payor?
1210.40 Will ONRR keep the information I provide confidential?

      Subpart B_Royalty Reports_Oil, Gas, and Geothermal Resources

1210.50 What is the purpose of this subpart?
1210.51 Who must submit royalty reports?
1210.52 What royalty reports must I submit?
1210.53 When are my royalty reports and payments due?
1210.54 Must I submit this royalty report electronically?
1210.55 May I submit this royalty report manually?
1210.56 Where can I find more information on how to complete the royalty 
          report?
1210.60 What definitions apply to this subpart?

[[Page 857]]

                Subpart C_Production Reports_Oil and Gas

1210.100 What is the purpose of this subpart?
1210.101 Who must submit production reports?
1210.102 What production reports must I submit?
1210.103 When are my production reports due?
1210.104 Must I submit these production reports electronically?
1210.105 May I submit these production reports manually?
1210.106 Where can I find more information on how to complete these 
          production reports?

  Subpart D_Special-Purpose Forms and Reports_Oil, Gas, and Geothermal 
                                Resources

1210.150 What is the purpose of this subpart?
1210.151 What reports must I submit to claim an excess allowance?
1210.152 What reports must I submit to claim allowances on an Indian 
          lease?
1210.153 What reports must I submit for Indian gas valuation purposes?
1210.154 What documents or other information must I submit for Federal 
          oil valuation purposes?
1210.155 What reports must I submit for Federal onshore stripper oil 
          properties?
1210.156 What reports must I submit for net profit share leases?
1210.157 What reports must I submit to suspend an ONRR order under 
          appeal?
1210.158 What reports must I submit to designate someone to make my 
          royalty payments?

         Subpart E_Production and Royalty Reports_Solid Minerals

1210.200 What is the purpose of this subpart?
1210.201 How do I submit Form MMS-4430, Solid Minerals Production and 
          Royalty Report?
1210.202 How do I submit sales summaries?
1210.203 How do I submit sales contracts?
1210.204 How do I submit facility data?
1210.205 What reports must I submit to claim allowances on Indian coal 
          leases?
1210.206 Will I need to submit additional documents or evidence to ONRR?
1210.207 How will information submissions be kept confidential?

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

                     Subpart H_Geothermal Resources

1210.350 Definitions.
1210.351 Required recordkeeping.
1210.352 Special forms and reports.
1210.353 Monthly report of sales and royalty.
1210.354 Reporting instructions.

Subpart I--OCS Sulfur [Reserved]

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396, 2107; 30 U.S.C. 189, 
190, 359, 1023, 1751(a); 31 U.S.C. 3716, 9701; 43 U.S.C. 1334, 1801 et 
seq.; and 44 U.S.C. 3506(a).

    Source: 48 FR 35641, Aug. 5, 1983, unless otherwise noted. 
Redesignated at 75 FR 61081, Oct. 4, 2010.



                      Subpart A_General Provisions

    Source: 73 FR 15892, Mar. 26, 2008, unless otherwise noted.



Sec. 1210.01  What is the purpose of this subpart?

    This subpart identifies information collections required by the 
Office of Natural Resources Revenue (ONRR), in the normal course of 
operations. This information is submitted by various parties associated 
with Federal and Indian leases such as lessees, designees, and 
operators. The information collected meets the ONRR congressionally 
mandated accounting and auditing responsibilities relating to Federal 
and Indian minerals revenue management. Information collected regarding 
production, royalties, and other payments due the Government from 
activities on leased Federal or Indian land is authorized by the Federal 
Oil and Gas Royalty Management Act of 1982, as amended (30 U.S.C. 1701 
et seq.), as well as 43 U.S.C. 1334 and 30 U.S.C. 189, 359, 396, and 
396d for oil and gas production; and by 30 U.S.C. 189, 359, 396, and 
396d for solid minerals production.



Sec. 1210.02  To whom do these regulations apply?

    The regulations apply to any person, referred to in this subpart as 
``you,'' ``your,'' or ``reporter/payor,'' who is a lessee under any 
Federal or Indian lease for any mineral or who is assigned or assumes an 
obligation to report data or make payment to ONRR. The term reporter/
payor may include lessees, designees, operators, purchasers, reporters, 
other payors, and

[[Page 858]]

working interest owners, but is not restricted to these parties. This 
section does not affect the liability to pay and report royalties as 
established by other regulations, laws, and the lease terms.



Sec. 1210.10  What are the OMB-approved information collections?

    The information collection requirements identified in this subpart 
have been approved by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. Detailed information about each information 
collection request (ICR), including CFR citations, is included on the 
ONRR Web site at http://www.mrm.boemre.gov/Laws--R--D/FRNotices/
FRNotices.htm. The ICRs and associated ONRR form numbers, if applicable, 
are listed below:

------------------------------------------------------------------------
   OMB control number and short title     Form or information collected
------------------------------------------------------------------------
1010-0073, 30 CFR part 1220, Net Profit  No form for the following
 Share Payment.                           collection:
                                          Net profit
                                          share payment information.
1010-0087, 30 CFR Parts 1227, 1228, and  No forms for the following
 1229, Delegation to States and           collections:
 Cooperative Activities with States and   Written
 Indian Tribes.                           delegation proposal to perform
                                          auditing and investigative
                                          activities.
                                          Request for
                                          cooperative agreement and
                                          subsequent requirements.
1010-0090, 30 CFR part 1216, Stripper    Form MMS-4377, Stripper Royalty
 Royalty Rate Reduction Notification.     Rate Reduction Notification.
1010-0103, 30 CFR Parts 1202 and 1206,   Form MMS-4109, Gas Processing
 Indian Oil and Gas Valuation.            Allowance Summary Report.
                                         Form MMS-4295, Gas
                                          Transportation Allowance
                                          Report.
                                         Form MMS-4110, Oil
                                          Transportation Allowance
                                          Report.
                                         Form MMS-4411, Safety Net
                                          Report.
                                         Form MMS-4410, Accounting for
                                          Comparison [Dual Accounting].
                                         Form MMS-4393, Request to
                                          Exceed Regulatory Allowance
                                          Limitation.\1\
1010-0107, 30 CFR part 1218, Collection  Form MMS-4425, Designation Form
 of Monies Due the Federal Government.    for Royalty Payment
                                          Responsibility.
                                         No forms for the following
                                          collections:
                                          Cross-lease
                                          netting documentation.
                                          Indian
                                          recoupment approval.
1010-0119, 30 CFR part 1208, Royalty in  Form MMS-4070, Application for
 Kind (RIK) Oil and Gas.                  the Purchase of Royalty Oil.
                                         Form MMS-4071, Letter of Credit
                                          (RIK).
                                         Form MMS-4072, Royalty-in-Kind
                                          Contract Surety Bond.
                                         No form for the following
                                          collection:
                                          Royalty oil
                                          sales to eligible refiners.
1010-0120, 30 CFR Parts 1202, 1206,      Form MMS 4430, Solid Minerals
 1210, 1212, 1217, and 1218, Solid        Production and Royalty Report.
 Minerals and Geothermal Collections.    Form 4292, Coal Washing
                                          Allowance Report.
                                         Form 4293, Coal Transportation
                                          Allowance Report.
                                         No forms for the following
                                          collections:
                                          Facility
                                          data--solid minerals.
                                          Sales
                                          contracts--solid minerals.
                                          Sales
                                          summaries--solid minerals.
1010-0122, 30 CFR part 1243,             Form MMS-4435, Administrative
 Suspensions Pending Appeal and Bonding.  Appeal Bond.
                                         Form MMS-4436, Letter of
                                          Credit.
                                         Form MMS-4437, Assignment of
                                          Certificate of Deposit.
                                         No forms for the following
                                          collections:
                                          Self
                                          bonding.
                                          U.S.
                                          Treasury securities.
1010-0136, 30 CFR Parts 1202 and 1206,   Form MMS-4393, Request to
 Federal Oil and Gas Valuation.           Exceed Regulatory Allowance
                                          Limitation.\1\
                                         No form for the following
                                          collection:
                                          Federal oil
                                          valuation support information.
1010-0139, 30 CFR Parts 1210 and 1216,   Form MMS-4054 (Parts A, B, and
 Production Accounting.                   C), Oil and Gas Operations
                                          Report.
                                         Form MMS-4058, Production
                                          Allocation Schedule Report.
1010-0140, 30 CFR part 1210, Forms and   Form MMS-2014, Report of Sales
 Reports.                                 and Royalty Remittance.
1010-0155, 30 CFR part 1204,             No form for the following
 Alternatives for Marginal Properties.    collection:
                                          Notification
                                          and relief request for
                                          accounting and auditing
                                          relief.
1010-0162, CFO Act of 1992, Accounts     No form for the following
 Receivable Confirmations.                collection:
                                          Accounts
                                          receivable confirmations.
------------------------------------------------------------------------
\1\ Form MMS-4393 is used for both Federal and Indian oil and gas
  leases. The form resides with ICR 1010-0136, but the burden hours for
  Indian leases are included in ICR 1010-0103.


[[Page 859]]


[73 FR 15892, Mar. 26, 2008, as amended at 73 FR 58875, Oct. 8, 2008]



Sec. 1210.20  What if I disagree with the burden hour estimates?

    Burden hour estimates are included on the ONRR Web site at http://
www.mrm.boemre.gov/Laws--R--D/FRNotices/FRNotices.htm. Send comments on 
the accuracy of these burden estimates or suggestions on reducing the 
burden to the Bureau of Ocean Energy Management, Regulation, and 
Enforcement, Attention: Information Collection Clearance Officer (OMB 
Control Number 1010-XXXX [insert appropriate OMB control number]), 381 
Elden Street, Herndon, VA 20170. An agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

[73 FR 15892, Mar. 26, 2008, as amended at 74 FR 46907, Sept. 14, 2009]



Sec. 1210.21  How do I report my taxpayer identification number?

    (a) Before paying or reporting to ONRR, you must obtain a payor code 
(see the ONRR Minerals Revenue Reporter Handbook, which is available on 
the Internet at http://www.mrm.boemre.gov/ReportingServices/PDFDocs/
RevenueHandbook.pdf; also see Sec. 1210.56 for further information on 
how to obtain a handbook). At the time you request a payor code, you 
must provide your Employer Identification Number (EIN) by submitting:
    (1) An IRS Form W-9; or
    (2) An equivalent certification containing:
    (i) Your name;
    (ii) The name of your business, if different from your name;
    (iii) The form of your business entity; for example, a sole 
proprietorship, corporation, or partnership;
    (iv) The address of your business;
    (v) The EIN of your business; and
    (vi) A signed and dated certification that you are a U.S. citizen or 
resident alien and that the EIN number provided is correct.
    (b) If you are already paying or reporting to ONRR but do not have 
an EIN, ONRR may request that you submit an IRS Form W-9 or equivalent 
certification containing the information required under paragraph (a)(2) 
of this section.
    (c) The collection of this data is not subject to the provisions of 
the Paperwork Reduction Act because only information necessary to 
identify the respondent [5 CFR 1320.3(h)] is required.
    (d) The EIN you provide to ONRR under paragraph (a) of this section:
    (1) Means the taxpayer identification number (TIN) of an individual 
or other person (whether or not an employer), which is assigned under 26 
U.S.C. 6011(b), or a corresponding version of prior law, or under 26 
U.S.C. 6109;
    (2) Must contain nine digits separated by a hyphen as follows: 00-
0000000; and
    (3) May not be a Social Security Number.



Sec. 1210.30  What are my responsibilities as a reporter/payor?

    Each reporter/payor must submit accurate, complete, and timely 
information to ONRR according to the requirements in this part. If you 
discover an error in a previous report, you must file an accurate and 
complete amended report within 30 days of your discovery of the error. 
If you do not comply, ONRR may assess civil penalties under 30 CFR part 
1241.



Sec. 1210.40  Will ONRR keep the information I provide confidential?

    The ONRR will treat information obtained under this part as 
confidential to the extent permitted by law as specified at 43 CFR part 
2.



      Subpart B_Royalty Reports_Oil, Gas, and Geothermal Resources

    Source: 73 FR 15892, Mar. 26, 2008, unless otherwise noted.



Sec. 1210.50  What is the purpose of this subpart?

    The purpose of this subpart is to explain royalty reporting 
requirements when energy and mineral resources are removed from Federal 
and Indian oil and gas and geothermal leases and federally approved 
agreements. This includes leases and agreements located onshore and on 
the Outer Continental Shelf (OCS).

[[Page 860]]



Sec. 1210.51  Who must submit royalty reports?

    (a) Any person who pays royalty to ONRR must submit royalty reports 
to ONRR.
    (b) Before you pay or report to ONRR, you must obtain a payor code. 
To obtain a payor code, refer to the ONRR Minerals Revenue Reporter 
Handbook for instructions and ONRR contact information (also see Sec. 
1210.56 for information on how to obtain a handbook).



Sec. 1210.52  What royalty reports must I submit?

    You must submit a completed Form MMS-2014, Report of Sales and 
Royalty Remittance, to ONRR with:
    (a) All royalty payments; and
    (b) Rents on nonproducing leases, where specified in the lease.



Sec. 1210.53  When are my royalty reports and payments due?

    (a) Completed Forms MMS-2014 for royalty payments and the associated 
payments are due by the end of the month following the production month 
(see also Sec. 1218.50 of this chapter).
    (b) Completed Forms MMS-2014 for rental payments, where applicable, 
and the associated payments are due as specified by the lease terms (see 
also Sec. 1218.50 of this chapter).
    (c) You may submit reports and payments early.



Sec. 1210.54  Must I submit this royalty report electronically?

    (a) You must submit Form MMS-2014 electronically unless you qualify 
for an exception under Sec. 1210.55(a).
    (b) You must use one of the following electronic media types, unless 
ONRR instructs you differently:
    (1) Electronic Data Interchange (EDI)--The direct computer-to-
computer interchange of data using standards set forth by the X12 
American National Standards Institute (ANSI) Accredited Standards 
Committee (ASC). The interchange uses the services of a third party with 
which either party may contract.
    (2) Web-based reporting--Reporters/payors may enter report data 
directly or upload files using the ONRR electronic web form located at 
http://www.mrmreports.net. The uploaded files must be in one of the 
following formats: the American Standard Code for Information 
Interchange (ASCII) or Comma Separated Values (CSV) formats. External 
files created by the sender must be in the proprietary ASCII and CSV 
file layout formats defined by ONRR. These external files can be 
generated from a reporter's system application.
    (c) Refer to our electronic reporting guidelines in the ONRR 
Minerals Revenue Reporter Handbook, for the most current reporting 
options, instructions, and security measures. The handbook may be found 
on our Internet Web site or you may call your ONRR customer service 
representative (see Sec. 1210.56 for further information on how to 
obtain a handbook).



Sec. 1210.55  May I submit this royalty report manually?

    (a) The ONRR will allow you to submit Form MMS-2014 manually if:
    (1) You have never reported to ONRR before. You have 3 months from 
the date your first report is due to begin reporting electronically;
    (2) You report only rent, minimum royalty, or other annual 
obligations on Form MMS-2014; or
    (3) You are a small business, as defined by the U.S. Small Business 
Administration, and you have no computer.
    (b) If you meet the qualifications under paragraph (a) of this 
section, you may submit your form manually to ONRR by:
    (1) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue, P.O. Box 5810, Denver, Colorado 80217-
5810; or
    (2) Special courier or overnight mail addressed to Office of Natural 
Resources Revenue, Building 85, Room A-614, Denver Federal Center, West 
6th Ave. and Kipling Blvd., Denver, Colorado 80225.



Sec. 1210.56  Where can I find more information on how to complete the royalty 

report?

    (a) Specific guidance on how to prepare and submit Form MMS-2014 is 
contained in the ONRR Minerals Revenue Reporter Handbook. The handbook

[[Page 861]]

is available on our Internet Web site at http://www.mrm.boemre.gov/
ReportingServices/Handbooks/Handbks.htm or from ONRR at P.O. Box 5760, 
Denver, Colorado 80217-5760.
    (b) Reporters/payors should refer to the handbook for specific 
guidance on royalty reporting requirements. If you require additional 
information, you should contact ONRR at the above address. A customer 
service telephone number is also listed in our handbook.
    (c) You may find Form MMS-2014 on our Internet Web site at http://
www.mrm.boemre.gov/ReportingServices/Forms/AFSOil--Gas.htm, or you may 
request the form from ONRR at P.O. Box 5760, Denver, Colorado 80217-
5760.



Sec. 1210.60  What definitions apply to this subpart?

    Terms used in this subpart have the same meaning as in 30 U.S.C. 
1702.



                Subpart C_Production Reports_Oil and Gas

    Source: 73 FR 15892, Mar. 26, 2008, unless otherwise noted.



Sec. 1210.100  What is the purpose of this subpart?

    The purpose of this subpart is to explain production reporting 
requirements when energy and mineral resources are removed from Federal 
and Indian oil and gas leases and federally approved agreements. This 
includes leases and unit and communitization agreements located onshore 
and on the Outer Continental Shelf (OCS).



Sec. 1210.101  Who must submit production reports?

    (a) If you operate a Federal or Indian oil and gas lease or 
federally approved unit or communitization agreement, you must submit 
production reports.
    (b) Before reporting production to ONRR, you must obtain an operator 
number. To obtain an operator number, refer to the ONRR Minerals 
Production Reporter Handbook for instructions and ONRR contact 
information (also see Sec. 1210.106 for information on how to obtain a 
handbook).



Sec. 1210.102  What production reports must I submit?

    (a) Form MMS-4054, Oil and Gas Operations Report. If you operate a 
Federal or Indian onshore or OCS oil and gas lease or federally approved 
unit or communitization agreement that contains one or more wells that 
are not permanently plugged or abandoned, you must submit Form MMS-4054 
to ONRR:
    (1) You must submit Form MMS-4054 for each well for each calendar 
month, beginning with the month in which you complete drilling, unless:
    (i) You have only test production from a drilling well; or
    (ii) The ONRR tells you in writing to report differently.
    (2) You must continue reporting until:
    (i) The Bureau of Land Management (BLM) or ONRR approves all wells 
as permanently plugged or abandoned or the lease or unit or 
communitization agreement is terminated; and
    (ii) You dispose of all inventory.
    (b) Form MMS-4058, Production Allocation Schedule Report. If you 
operate an offshore facility measurement point (FMP) handling production 
from a Federal oil and gas lease or federally approved unit agreement 
that is commingled (with approval) with production from any other source 
prior to measurement for royalty determination, you must file Form MMS-
4058.
    (1) You must submit Form MMS-4058 for each calendar month beginning 
with the month in which you first handle production covered by this 
section.
    (2) Form MMS-4058 is not required whenever all of the following 
conditions are met:
    (i) All leases involved are Federal leases;
    (ii) All leases have the same fixed royalty rate;
    (iii) All leases are operated by the same operator;
    (iv) The facility measurement device is operated by the same person 
as the leases/agreements;
    (v) Production has not been previously measured for royalty 
determination; and
    (vi) The production is not subsequently commingled and measured for 
royalty determination at an FMP for

[[Page 862]]

which Form MMS-4058 is required under this part.



Sec. 1210.103  When are my production reports due?

    (a) The ONRR must receive your completed Forms MMS-4054 and MMS-4058 
by the 15th day of the second month following the month for which you 
are reporting.
    (b) A report is considered received when it is delivered to ONRR by 
4 p.m. mountain time at the addresses specified in Sec. 1210.105. 
Reports received after 4 p.m. mountain time are considered received the 
following business day.



Sec. 1210.104  Must I submit these production reports electronically?

    (a) You must submit Forms MMS-4054 and MMS-4058 electronically 
unless you qualify for an exception under Sec. 1210.105.
    (b) You must use one of the following electronic media types, unless 
ONRR instructs you differently:
    (1) Electronic Data Interchange (EDI)--The direct computer-to-
computer interchange of data using standards set forth by the X12 
American National Standards Institute (ANSI) Accredited Standards 
Committee (ASC). The interchange uses the services of a third party with 
which either party may contract.
    (2) Web-based reporting--Reporters/payors may enter report data 
directly or upload files using the ONRR electronic Web form located at 
http://www.mrmreports.net. The uploaded files must be in one of the 
following formats: the American Standard Code for Information 
Interchange (ASCII) or Comma Separated Values (CSV) formats. External 
files created by the sender must be in the proprietary ASCII and CSV 
file layout formats defined by ONRR. These external files can be 
generated from a reporter's system application.
    (c) Refer to our electronic reporting guidelines in the ONRR 
Minerals Production Reporter Handbook for the most current reporting 
options, instructions, and security measures. The handbook may be found 
on our Internet Web site or you may call your ONRR customer service 
representative (see Sec. 1210.106 for further information on how to 
obtain a handbook).



Sec. 1210.105  May I submit these production reports manually?

    (a) The ONRR will allow you to submit Forms MMS-4054 and MMS-4058 
manually if:
    (1) You have never reported to ONRR before. You have 3 months from 
the day your first report is due to begin reporting electronically; and
    (2) You are a small business, as defined by the U.S. Small Business 
Administration, and you have no computer.
    (b) If you meet the qualifications under paragraph (a) of this 
section, you may submit your forms manually to ONRR by:
    (1) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue, P.O. Box 17110, Denver, Colorado 80217-
0110; or
    (2) Special courier or overnight mail addressed to Office of Natural 
Resources Revenue, Building 85, Room A-614, Denver Federal Center, West 
6th Ave. and Kipling Blvd., Denver, Colorado 80225.



Sec. 1210.106  Where can I find more information on how to complete these 

production reports?

    (a) Specific guidance on how to prepare and submit production 
reports to ONRR is contained in the ONRR Minerals Production Reporter 
Handbook. The handbook is available on our Internet Web site at http://
www.mrm.mms.gov/ReportingServices/Handbooks/Handbks.htm or from ONRR at 
P.O. Box 17110, Denver, Colorado 80217-0110.
    (b) Production reporters should refer to the handbook for specific 
guidance on production reporting requirements. If you require additional 
information, you should contact ONRR at the above address. A customer 
service telephone number is also listed in our handbook.
    (c) You may find Forms MMS-4054 and MMS-4058 on our Internet Web 
site at http://www.mrm.mms.gov/ReportingServices/Forms/PAASOff.htm, or 
you may request the forms from ONRR at P.O. Box 17110, Denver, Colorado 
80217-0110.

[[Page 863]]



  Subpart D_Special-Purpose Forms and Reports_Oil, Gas, and Geothermal 

                                Resources

    Source: 73 FR 15892, Mar. 26, 2008, unless otherwise noted.



Sec. 1210.150  What is the purpose of this subpart?

    This subpart identifies specific special-purpose reports and 
provides general information, reporting options, and reporting 
addresses. See Sec. 1210.10 for a complete listing of all information 
collections, including forms and references for specific information 
collections.



Sec. 1210.151  What reports must I submit to claim an excess allowance?

    (a) General. If you are a lessee, you must submit Form MMS-4393, 
Request to Exceed Regulatory Allowance Limitation, to request approval 
from ONRR to exceed prescribed transportation and processing allowance 
limits on Federal oil and gas leases and prescribed transportation 
allowance limits on Indian oil and gas leases under part 1206 of this 
chapter.
    (b) Reporting options. You may find Form MMS-4393 on our Web site at 
http://www.mrm.mms.gov/ReportingServices/Forms/AFSOil--Gas.htm. You may 
also request the form from ONRR at P.O. Box 25165, MS 392B2, Denver, 
Colorado 80217-0165.
    (c) Reporting address. Submit completed Form MMS-4393 as follows:
    (1) Complete and submit the form electronically as an e-mail 
attachment;
    (2) Send the form by U.S. Postal Service regular or express mail 
addressed to Office of Natural Resources Revenue, P.O. Box 25165, MS 
392B2, Denver, Colorado 80217-0165; or
    (3) Deliver the form to ONRR by special courier or overnight mail 
addressed to Office of Natural Resources Revenue, Building 85, Room A-
614, MS 392B2, Denver Federal Center, West 6th Ave. and Kipling Blvd., 
Denver, Colorado 80225.



Sec. 1210.152  What reports must I submit to claim allowances on an Indian 

lease?

    (a) General. You must submit three additional forms to ONRR to claim 
transportation or processing allowances on Indian oil and gas leases:
    (1) You must submit Form MMS-4110, Oil Transportation Allowance 
Report, to claim an allowance for expenses incurred by a reporter/payor 
to transport oil from the lease site to a point remote from the lease 
where value is determined under Sec. 1206.55 of this chapter.
    (2) You must submit Form MMS-4109, Gas Processing Allowance Summary 
Report, to claim an allowance for the reasonable, actual costs of 
removing hydrocarbon and nonhydrocarbon elements or compounds from a gas 
stream under Sec. 1206.180 of this chapter.
    (3) You must submit Form MMS-4295, Gas Transportation Allowance 
Report, to claim an allowance for the reasonable, actual costs of 
transporting gas from the lease to the point of first sale under Sec. 
1206.178 of this chapter.
    (b) Reporting options. You may submit Forms MMS-4110, MMS-4109, and 
MMS-4295 manually. You may find the forms on our Internet Web site at 
http://www.mrm.mms.gov/ReportingServices/Forms/AFSOil--Gas.htm, or you 
may request the forms from ONRR at P.O. Box 25165, MS 396B2, Denver, 
Colorado 80217-0165.
    (c) Reporting address. You may submit completed Forms MMS-4110, MMS-
4109, and MMS-4295 by:
    (1) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue, P.O. Box 25165, MS 396B2, Denver, Colorado 
80217-0165; or
    (2) Special courier or overnight mail addressed to Office of Natural 
Resources Revenue, Building 85, Room A-614, MS 396B2, Denver Federal 
Center, West 6th Ave. and Kipling Blvd., Denver, Colorado 80225.



Sec. 1210.153  What reports must I submit for Indian gas valuation purposes?

    (a) General. For Indian gas valuation, under certain conditions 
under Sec. 1206.172 of this chapter, lessees must submit the following 
forms:

[[Page 864]]

    (1) Form MMS-4410, Accounting for Comparison (Dual Accounting), Part 
A or part B; and/or
    (2) Form MMS-4411, Safety Net Report.
    (b) Reporting options. You must submit Forms MMS-4410 and MMS-4411 
manually. You may find the forms on our Internet Web site at http://
www.mrm.mms.gov/ReportingServices/Forms/AFSOil--Gas.htm or request forms 
from ONRR at P.O. Box 25165, MS 396B2, Denver, Colorado 80217-0165.
    (c) Reporting address. You must submit completed Forms MMS-4410 and 
MMS-4411 by:
    (1) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue, P.O. Box 25165, MS 396B2, Denver, Colorado 
80217-0165; or
    (2) Special courier or overnight mail addressed to Office of Natural 
Resources Revenue, Building 85, Room A-614, MS 396B2, Denver Federal 
Center, West 6th Ave. and Kipling Blvd., Denver, Colorado 80225.



Sec. 1210.154  What documents or other information must I submit for Federal 

oil valuation purposes?

    (a) General. The ONRR may require you to submit documents or other 
information to ONRR to support your valuation of Federal oil under part 
1206 as part of audit compliance.
    (b) Reporting options. You must submit the documents or other 
information manually.
    (c) Reporting address. You must submit required documents or other 
information by:
    (1) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue, P.O. Box 25165, MS 392B2, Denver, Colorado 
80217-0165; or
    (2) Special courier or overnight mail addressed to Office of Natural 
Resources Revenue, Building 85, Room A-614, MS 392B2, Denver Federal 
Center, West 6th Ave. and Kipling Blvd., Denver, Colorado 80225.



Sec. 1210.155  What reports must I submit for Federal onshore stripper oil 

properties?

    (a) General. Operators who have been granted a reduced royalty rate 
by the Bureau of Land Management (BLM) under 43 CFR 3103.4-2 must submit 
Form MMS-4377, Stripper Royalty Rate Reduction Notification, under 43 
CFR 3103.4-2(b)(3).
    (b) Reporting options. You may find Form MMS-4377 on our Internet 
Web site at http://www.mrm.mms.gov/ReportingServices/Forms/AFSOil--
Gas.htm or request the form from ONRR at P.O. Box 17110, Denver, 
Colorado 80217-0110. You may file the form:
    (1) Electronically by filling the form out in electronic format and 
submitting it to ONRR as an e-mail attachment; or
    (2) Manually by filling out the form and submitting it by:
    (i) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue (ONRR), P.O. Box 25165, MS 392B2, Denver, 
Colorado 80217-0165; or
    (ii) Special courier or overnight mail addressed to Office of 
Natural Resources Revenue, Building 85, Room A-614, MS 392B2, Denver 
Federal Center, West 6th Ave. and Kipling Blvd., Denver, Colorado 80225.



Sec. 1210.156  What reports must I submit for net profit share leases?

    (a) General. After entering into a net profit share lease (NPSL) 
agreement, a lessee must report under part 1220 of this chapter.
    (b) Reporting options. You must submit the required report manually.
    (c) Reporting address. You must submit the required documents by:
    (1) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue, P.O. Box 25165, MS 382B2, Denver, Colorado 
80217-0165; or
    (2) Special courier or overnight mail addressed to Office of Natural 
Resources Revenue, Building 85, Room A-614, MS 382B2, Denver Federal 
Center, West 6th Ave. and Kipling Blvd., Denver, Colorado 80225.



Sec. 1210.157  What reports must I submit to suspend an ONRR order under 

appeal?

    (a) General. Reporters/payors or other recipients of ONRR Office of 
Natural Resources (MRM) Revenue orders who appeal an order may be 
required to

[[Page 865]]

post a bond or other surety, under part 1243 of this chapter. The ONRR 
accepts the following surety types: Form MMS-4435, Administrative Appeal 
Bond; Form MMS-4436, Letter of Credit; Form MMS-4437, Assignment of 
Certificate of Deposit; Self-bonding; and U.S. Treasury Securities.
    (b) Reporting options. You must submit these forms and other 
documents manually. You may find the forms and other documents under 
Surety Instrument Posting Instructions on our Internet Web site at 
http://www.mrm.mms.gov/Law--R--D/FRNotices/ICR0122.htm.
    (c) Reporting address. You may submit the required forms and other 
documents as specified in the Surety Instrument Posting Instructions or 
by:
    (1) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue, P.O. Box 25165, MS 370B2, Denver, Colorado 
80217-0165;
    (2) Special courier or overnight mail addressed to Office of Natural 
Resources Revenue, Building 85, Room A-614, MS 370B2, Denver Federal 
Center, West 6th Ave. and Kipling Blvd., Denver, Colorado 80225.



Sec. 1210.158  What reports must I submit to designate someone to make my 

royalty payments?

    (a) General. You must submit Form MMS-4425, Designation Form for 
Royalty Payment Responsibility, if you want to designate a person to 
make royalty payments on your behalf under Sec. 1218.52 of this 
chapter.
    (b) Reporting options. You must submit Form MMS-4425 manually. You 
may find the form on our Internet Web site at http://www.mrm.boemre.gov/
ReportingServices/Forms/AFSOil--Gas.htm or request the form from ONRR at 
P.O. Box 5760, Denver, Colorado 80217-5760.
    (c) Reporting address. You must submit completed Form MMS-4425 by:
    (1) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue, P.O. Box 25165, MS 357B1, Denver, Colorado 
80217-0165; or
    (2) Special courier or overnight mail addressed to Office of Natural 
Resources Revenue, Building 85, Room A-614, MS 357B1, Denver Federal 
Center, West 6th Ave. and Kipling Blvd., Denver, Colorado 80225.



         Subpart E_Production and Royalty Reports_Solid Minerals

    Source: 66 FR 45771, Aug. 30, 2001, unless otherwise noted.



Sec. 1210.200  What is the purpose of this subpart?

    This subpart explains your reporting requirements if you produce 
coal or other solid minerals from Federal or Indian leases. Included are 
your requirements for reporting production, sales, and royalties.



Sec. 1210.201  How do I submit Form MMS-4430, Solid Minerals Production and 

Royalty Report?

    (a) What to submit. (1) You must submit a completed Form MMS-4430 
for--
    (i) Production of all coal and other solid minerals from any Federal 
or Indian lease;
    (ii) Sale of any such mineral;
    (iii) Any such mineral held in stockpile or inventory; and
    (iv) Payment of rents (other than those for which you receive from 
ONRR a Courtesy Notice as defined in Sec. 1218.51(a) of this chapter), 
minimum royalty, deferred bonus, advance royalty, minimum royalty 
payable in advance, settlements, recoupments, and other financial 
obligations.
    (2) You must submit a completed Form MMS-4430 for any product you 
sell from a remote storage site. If you sell from five or fewer remote 
storage sites, you must report sales from each site on separate Forms 
MMS-4430. If you sell from more than five remote storage sites, you must 
total the data from all sites and report the summarized data on one Form 
MMS-4430.
    (3) Instructions for completing and submitting Form MMS-4430 are 
available on our Internet reporting web site or you may contact us toll 
free at 1-888-201-6416.
    (b) When to submit. (1) Unless your lease terms specify a different 
frequency for royalty payments, you must submit your Form MMS-4430 on or 
before the end of the month following the month in which you produce any 
solid mineral, sell any solid mineral, or hold

[[Page 866]]

any solid mineral production in stockpile or inventory. However, if the 
last day of the month falls on a weekend or holiday, your Form MMS-4430 
is due on the next business day.
    (2) If your lease terms specify a different frequency for royalty 
payment, then you must submit your Form MMS-4430 on or before the date 
on which you must pay royalty under the terms of the lease.
    (3) You must submit your Form MMS-4430 for payment of rents (other 
than those for which you receive from ONRR a Courtesy Notice as defined 
in Sec. 1218.51(a) of this chapter), minimum royalty, deferred bonus, 
advance royalty, minimum royalty payable in advance, settlements, 
recoupments, and other financial obligations on or before the date on 
which you must pay those obligations under the terms of the lease.
    (4) If the information on a previously reported Form MMS-4430 is no 
longer correct, you must submit a revised Form MMS-4430 by the last day 
of the month in which you learn that the previously reported information 
is no longer correct, except when the last day of the month falls on a 
weekend or holiday. If the last day of the month falls on a weekend or 
holiday, your revised Form MMS-4430 is due on the first business day of 
the following month.
    (c) How to submit. (1) You must submit Form MMS-4430 electronically 
using our Internet reporting web site unless you meet the conditions in 
paragraph (c)(2). We will provide written instructions and a valid login 
and password before you begin reporting.
    (2) You are not required to report electronically if you are a small 
business as defined by the U.S. Small Business Administration (13 CFR 
121.201) and you have no computer, no plans to purchase a computer, and 
no contract with an electronic reporting service.
    (3) If you do not report electronically, you must submit the 
completed Form MMS-4430 to us at one of the following addresses, unless 
ONRR publishes notice in the Federal Register giving a different 
address:
    (i) For U.S. Postal Service regular mail or Express Mail: Office of 
Natural Resources Revenue (ONRR), P.O. Box 5810, Denver, Colorado 80217-
5810; or
    (ii) For courier service or overnight mail (excluding Express Mail): 
Office of Natural Resources Revenue, Building 85, Denver Federal Center, 
Room A-614, Denver, Colorado 80225.

[66 FR 45771, Aug. 30, 2001; 66 FR 50827, Oct. 5, 2001]



Sec. 1210.202  How do I submit sales summaries?

    (a) What to submit. (1) You must submit sales summaries for all coal 
and other solid minerals produced from Federal and Indian leases and for 
any remote storage site from which you sell Federal or Indian solid 
minerals. You do not have to submit a sales summary for those months in 
which you do not sell any Federal or Indian production.
    (2) If you sell from five or fewer remote storage sites, you must 
submit a sales summary for each site. If you sell from more than five 
remote storage sites, you may total the data from all sites and submit 
the summarized data as one sales summary. The details you report on the 
sales summary are for the same sales reported on Form MMS-4430.
    (3) Use the following table to determine the time frames for 
submitting sales summaries and the data elements you must include. Your 
submitted sales summaries must include the following data but may be 
internally generated documents from your own records. You do not need to 
re-format them before submitting them to us:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                        All other leases
                                                                                                                     All other leases      with no ad
          Data element                    Coal           Sodium/potassium   Western  phosphate        Metals          with ad valorem    valorem royalty
                                                                                                                       royalty terms          terms
--------------------------------------------------------------------------------------------------------------------------------------------------------
(i) Purchaser Name or Unique      Monthly............  Monthly............  Monthly...........  Monthly...........  Monthly...........  As Requested
 Identification.
(ii) Sales Units................  Monthly............  Monthly............  Monthly...........  Monthly...........  Monthly...........  Monthly
(iii) Gross Proceeds............  Monthly............  Monthly............  Not Required......  Monthly...........  Monthly...........  Not Required
(iv) Processing or washing costs  Monthly............  Monthly............  Not Required......  Monthly...........  Monthly...........  Not Required

[[Page 867]]

 
(v) Transportation costs........  Monthly............  Monthly............  Not Required......  Monthly...........  Monthly...........  Not Required
(vi) Name of product type sold..  Not Required.......  Monthly............  Not Required......  Monthly...........  Monthly...........  As Requested
(vii) Btu/lb....................  Monthly............  Not Required.......  Not Required......  Not Required......  Not Required......  Not Required
(viii) Ash %....................  Monthly............  Not Required.......  Not Required......  Not Required......  Not Required......  Not Required
(ix) Sulfur %...................  Monthly............  Not Required.......  Not Required......  Not Required......  Not Required......  Not Required
(x) lbs SO2.....................  Monthly............  Not Required.......  Not Required......  Not Required......  Not Required......  Not Required
(xi) Moisture %.................  Monthly............  Not Required.......  Monthly...........  Not Required......  Not Required......  Not Required
(xii) By-product Units..........  Not Required.......  As Requested.......  Monthly...........  As Requested......  As Requested......  Not Required
(xiii) P2O5 %...................  Not Required.......  Not Required.......  Monthly...........  Not Required......  Not Required......  Not Required
(xiv) Size......................  Not Required.......  Not Required.......  Not Required......  Not Required......  As Requested......  Not Required
(xv) Net Smelter Return data....  Not Required.......  Not Required.......  Not Required......  Monthly...........  Not Required......  Not Required
(xvi) Other Data e.g., Royalty    As Requested.......  Monthly............  As Requested......  As Requested......  As Requested......  As Requested.
 Calculation Worksheet.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (b) When to submit. (1) For leases with ad valorem royalty terms 
(that is, leases for which royalty is a percentage of the value of 
production), you must submit your sales summaries monthly at the same 
time you submit Form MMS-4430. You do not have to submit a sales summary 
for any month in which you did not sell Federal or Indian production.
    (2) For leases with no ad valorem royalty terms (that is, leases in 
which the royalty due is not a function of the value of production, such 
as cents-per-ton or dollars-per-unit), you must submit monthly sales 
summaries only if we specifically request you to do so.
    (c) How to submit. (1) You should provide the sales summary data via 
electronic mail where possible. We will provide instructions and the 
proper email address for these submissions.
    (2) If you submit sales summaries by paper copy, mail them to one of 
the following addresses, unless ONRR publishes notice in the Federal 
Register giving a different address:
    (i) For U.S. Postal Service regular mail or Express Mail: Office of 
Natural Resources Revenue, Solid Minerals and Geothermal Compliance and 
Asset Management, P.O. Box 25165, MS 390G1, Denver, Colorado 80225-0165.
    (ii) For courier service or overnight mail (excluding Express Mail): 
Office of Natural Resources Revenue, Solid Minerals and Geothermal 
Compliance and Asset Management, 12600 West Colfax Avenue, Suite C-100, 
Lakewood, Colorado 80215.



Sec. 1210.203  How do I submit sales contracts?

    (a) What to submit. You must submit sales contracts, agreements, and 
contract amendments for the sale of all coal and other solid minerals 
produced from Federal and Indian leases with ad valorem royalty terms.
    (b) When to submit. (1) For coal and metal production, you must 
submit the required documents semi-annually, no later than March 30 and 
September 30 of each year.
    (2) For sodium, potassium, and phosphate production, and production 
from any other lease with ad valorem royalty terms, you must submit the 
required documents only if you are specifically requested to do so.
    (c) How to submit. You must submit complete copies of the sales 
contracts and amendments to us at the applicable address given in Sec. 
1210.202(c)(2), unless ONRR publishes notice in the Federal Register 
giving a different address.



Sec. 1210.204  How do I submit facility data?

    (a) What to submit. (1) You must submit facility data if you operate 
a wash plant, refining, ore concentration, or other processing facility 
for any coal, sodium, potassium, metals, or other solid minerals 
produced from Federal or Indian leases with ad valorem royalty terms, 
regardless of whether the facility is located on or off the lease.

[[Page 868]]

    (2) You do not have to submit facility data for those months in 
which you do not process solid minerals produced from Federal or Indian 
leases and do not have any such minerals in stockpile inventory.
    (3) You must include in your facility data all production processed 
in the facility from all properties, not just production from Federal 
and Indian leases.
    (4) Facility data submissions must include the following minimum 
information:
    (i) Identification of your facility;
    (ii) Mines served;
    (iii) Input quantity;
    (iv) Input quality or ore grade (except for coal);
    (v) Output quantity; and
    (vi) Output quality or product grades.
    (5) Your submitted facility data may be internally generated 
documents from your own records. You do not need to re-format them 
before submitting them to us.
    (b) When to submit. You must submit your facility data monthly at 
the same time you submit your Form MMS-4430.
    (c) How to submit. (1) You should provide the facility data via 
electronic mail where possible. We will provide instructions and the 
proper email address for these submissions before you begin reporting.
    (2) If you submit facility data by paper copy, send it to the 
applicable address given in Sec. 1210.202(c)(2).



Sec. 1210.205  What reports must I submit to claim allowances on Indian coal 

leases?

    General. You must submit the following ONRR forms to claim a 
transportation or washing allowance, as applicable, on Indian coal 
leases:
    (1) Form MMS-4292, Coal Washing Allowance Report, to claim an 
allowance for the reasonable, actual costs incurred to wash coal under 
Sec. 1206.458 of this chapter.
    (2) Form MMS-4293, Coal Transportation Allowance Report, to claim an 
allowance for the reasonable, actual costs of transporting coal to a 
sales point or a washing facility remote from the mine or lease under 
Sec. 1206.461 of this chapter.
    (b) Reporting options. You must submit the forms manually. You may 
find the forms on our Internet Web site at http://www.mrm.mms.gov/
ReportingServices/Forms/AFSSol--Min.htm or request forms from ONRR at 
P.O. Box 25165, MS 390B2, Denver, Colorado 80217-0165.
    (c) Reporting address. You must submit completed Forms MMS-4292 and 
MMS-4293 by:
    (1) U.S. Postal Service regular or express mail addressed to Office 
of Natural Resources Revenue, P.O. Box 25165, MS 390B2, Denver, Colorado 
80217-0165; or
    (2) Special courier or overnight mail addressed to Office of Natural 
Resources Revenue, Building 85, Room A-614, MS 390B2, Denver Federal 
Center, West 6th Ave. and Kipling Blvd., Denver, Colorado 80225.

[73 FR 15897, Mar. 26, 2008]



Sec. 1210.206  Will I need to submit additional documents or evidence to ONRR?

    (a) Federal and Indian lease terms allow us to request detailed 
statements, documents, or other evidence necessary to verify compliance 
with lease terms and conditions and applicable rules.
    (b) We will request this additional information as we need it, not 
as a regular submission.

[66 FR 45771, Aug. 30, 2001. Redesignated at 73 FR 15897, Mar. 26, 2008]



Sec. 1210.207  How will information submissions be kept confidential?

    Information submitted under this part that constitutes trade secrets 
or commercial and financial information that is identified as privileged 
or confidential, or that is exempt from disclosure under the Freedom of 
Information Act, 5 U.S.C. 552, shall not be available for public 
inspection or made public or disclosed without the consent of the 
lessee, except as otherwise provided by law or regulation.

[66 FR 45771, Aug. 30, 2001. Redesignated at 73 FR 15897, Mar. 26, 2008]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

[[Page 869]]



                     Subpart H_Geothermal Resources

    Source: 56 FR 57286, Nov. 8, 1991, unless otherwise noted.



Sec. 1210.350  Definitions.

    Terms used in this subpart shall have the same meaning as in Sec. 
1206.351 of this chapter.



Sec. 1210.351  Required recordkeeping.

    Information required by ONRR shall be filed using the forms 
prescribed in this subpart, which are available from ONRR. Records may 
be maintained on microfilm, microfiche, or other recorded media that are 
easily reproducible and readable. See subpart H of 30 CFR part 1212.



Sec. 1210.352  Special forms and reports.

    The ONRR may require submission of additional information on special 
forms or reports. When special forms or reports other than those 
referred to in this subpart are necessary, ONRR will give instructions 
for the filing of such forms or reports. Requests for the submission of 
such forms will be made in conformity with the requirements of the 
Paperwork Reduction Act of 1980 and other applicable laws.

[56 FR 57286, Nov. 8, 1991. Redesignated at 72 FR 24467, May 2, 2007]



Sec. 1210.353  Monthly report of sales and royalty.

    A completed Report of Sales and Royalty Remittance (Form MMS-2014) 
must be submitted each month once sales or utilization of production 
occur, even though sales may be intermittent, unless otherwise 
authorized by ONRR. This report is due on or before the last day of the 
month following the month in which production was sold or utilized, 
together with the royalties due the United States.

[56 FR 57286, Nov. 8, 1991. Redesignated at 72 FR 24467, May 2, 2007]



Sec. 1210.354  Reporting instructions.

    Specific guidance on how to prepare and submit required information 
collection reports and forms to ONRR is contained in the publication 
titled Minerals Revenue Reporter Handbook--Oil, Gas, and Geothermal 
Resources, which is available from the Office of Natural Resources 
Revenue, Financial Management, P.O. Box 25165, Mail Stop 350B1, Denver, 
CO 80225-0165. For copies from the ONRR Web site, go to http://
www.mrm.mms.gov/. Click Reporting Information and select the topic.

[72 FR 24467, May 2, 2007]

Subpart I--OCS Sulfur [Reserved]



PART 1212_RECORDS AND FILES MAINTENANCE--Table of Contents



Subpart A--General Provisions [Reserved]

               Subpart B_Oil, Gas, and OCS Sulphur_General

Sec.
1212.50 Required recordkeeping and reports.
1212.51 Records and files maintenance.
1212.52 Definitions.

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

                    Subpart E_Solid Minerals_General

1212.200 Maintenance of and access to records.

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

                     Subpart H_Geothermal Resources

1212.350 Definitions.
1212.351 Required recordkeeping and reports.

Subpart I--OCS Sulfur [Reserved]

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq., 
1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et seq., 1331 et seq., and 
1801 et seq.

    Source: 48 FR 35641, Aug. 5, 1983, unless otherwise noted. 
Redesignated at 75 FR 61084, Oct. 4, 2010.

Subpart A--General Provisions [Reserved]

[[Page 870]]



               Subpart B_Oil, Gas, and OCS Sulphur_General



Sec. 1212.50  Required recordkeeping and reports.

    All records pertaining to offshore and onshore Federal and Indian 
oil and gas leases shall be maintained by a lessee, operator, revenue 
payor, or other person for 6 years after the records are generated 
unless the recordholder is notified, in writing, that records must be 
maintained for a longer period. When an audit or investigation is 
underway, records shall be maintained until the recordholder is released 
by written notice of the obligation to maintain records.

[49 FR 37345, Sept. 21, 1984]



Sec. 1212.51  Records and files maintenance.

    (a) Records. Each lessee, operator, revenue payor, or other person 
shall make and retain accurate and complete records necessary to 
demonstrate that payments of rentals, royalties, net profit shares, and 
other payments related to offshore and onshore Federal and Indian oil 
and gas leases are in compliance with lease terms, regulations, and 
orders. Records covered by this section include those specified by lease 
terms, notices and orders, and by the various parts of this chapter. 
Records also include computer programs, automated files, and supporting 
systems documentation used to produce automated reports or magnetic tape 
submitted to the Office of Natural Resources Revenue (ONRR).
    (b) Period for keeping records. Lessees, operators, revenue payors, 
or other persons required to keep records under this section shall 
maintain and preserve them for 6 years from the day on which the 
relevant transaction recorded occurred unless the Secretary notifies the 
record holder of an audit or investigation involving the records and 
that they must be maintained for a longer period. When an audit or 
investigation is underway, records shall be maintained until the 
recordholder is released in writing from the obligation to maintain the 
records. Lessees, operators, revenue payors, or other persons shall 
maintain the records generated during the period for which they have 
paying or operating responsibility on the lease for a period of 6 years.
    (c) Inspection of records. The lessee, operator, revenue payor, or 
other person required to keep records shall be responsible for making 
the records available for inspection. Records shall be provided at a 
business location of the lessee, operator, revenue payor, or other 
person during normal business hours upon the request of any officer, 
employee or other party authorized by the Secretary. Lessees, operators, 
revenue payors, and other persons will be given a reasonable period of 
time to produce historical records.

[49 FR 37345, Sept. 21, 1984; 49 FR 40576, Oct. 17, 1984, as amended at 
67 FR 19111, Apr. 18, 2002]



Sec. 1212.52  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 
U.S.C. 1702.

[49 FR 37345, Sept. 21, 1984]

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals--General



Sec. 1212.200  Maintenance of and access to records.

    (a) All records pertaining to Federal and Indian solid minerals 
leases shall be maintained by a lessee, operator, revenue payor, or 
other person for 6 years after the records are generated unless the 
record holder is notified, in writing, that records must be maintained 
for a longer period. When an audit or investigation is underway, records 
shall be maintained until the record holder is released by written 
notice of the obligation to maintain records.
    (b) The ONRR shall have access to all records of the operator/lessee 
pertaining to compliance to Federal royalties, including, but not 
limited to:
    (1) Qualities and quantities of all products mined, processed, sold, 
delivered, or used by the operator/lessee.

[[Page 871]]

    (2) Prices received for mined or processed products, prices paid for 
like or similar products, and internal transfer prices.
    (3) Costs of mining, processing, handling, and transportation.

[47 FR 33193, July 30, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and amended at 51 FR 15767, Apr. 28, 1986; 54 FR 1532, Jan. 13, 1989]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]



                     Subpart H_Geothermal Resources

    Source: 56 FR 57286, Nov. 8, 1991, unless otherwise noted.



Sec. 1212.350  Definitions.

    Terms used in this subpart shall have the same meaning as in Sec. 
1206.351.



Sec. 1212.351  Required recordkeeping and reports.

    (a) Records. Each lessee, operator, revenue payor, or other person 
shall make and retain accurate and complete records necessary to 
demonstrate that payments of royalties, rentals, and other amounts due 
under Federal geothermal leases are in compliance with laws, lease 
terms, regulations, and orders. Records covered by this section include 
those specified by lease terms, notices, and orders, and those 
identified in paragraph (c) of this section. Records also include 
computer programs, automated files, and supporting systems documentation 
used to produce automated reports or magnetic tapes submitted to ONRR.
    (b) Period for keeping records. All records pertaining to Federal 
geothermal leases shall be maintained by a lessee, operator, revenue 
payor, or other person for 6 years after the records are generated 
unless the recordholder is notified, in writing, before the expiration 
of that 6-year period that records must be maintained for a longer 
period for purposes of audit or investigation. When an audit or 
investigation is underway, records shall be maintained until the 
recordholder is released by written notice of the obligation to maintain 
records.
    (c) Access to records. The Director for Office of Natural Resources 
Revenue shall have access to all records in the possession of the 
lessee, operator, revenue payor, or other person pertaining to 
compliance with royalty obligations under Federal geothermal leases 
(regardless of whether such records were generated more than 6 years 
before a request or order to produce them and they otherwise were not 
disposed of), including, but not limited to:
    (1) Qualities and quantities of all products extracted, processed, 
sold, delivered, or used by the operator/lessee;
    (2) Prices received for products, prices paid for like or similar 
products, and internal transfer prices; and
    (3) Costs of extraction, power generation, electrical transmission, 
and byproduct transportation.
    (d) Inspection of Records. The lessee, operator, revenue payor, or 
other person required to keep records shall be responsible for making 
the records available for inspection. Records shall be made available at 
a business location of the lessee, operator, revenue payor, or other 
person during normal business hours upon the request of any officer, 
employee, or other party authorized by the Secretary. Lessees, 
operators, revenue payors, and other persons will be given a reasonable 
period of time to produce records.

[56 FR 57286, Nov. 8, 1991, as amended at 67 FR 19111, Apr. 18, 2002]

Subpart I--OCS Sulfur [Reserved]



PART 1217_AUDITS AND INSPECTIONS--Table of Contents



Subpart A--General Provisions [Reserved]

                     Subpart B_Oil and Gas, General

Sec.
1217.50 Audits of records.
1217.51 Lease account reconciliation.
1217.52 Definitions.

Subpart C--Oil and Gas, Onshore [Reserved]

Subpart D--Oil, Gas and Sulfur, Offshore [Reserved]

[[Page 872]]

                             Subpart E_Coal

1217.200 Audits.

                     Subpart F_Other Solid Minerals

1217.250 Audits.

                     Subpart G_Geothermal Resources

1217.300 Audits or review of records.
1217.301 Lease account reconciliations.
1217.302 Definitions.

Subpart H--Indian Lands [Reserved]

    Authority: 35 Stat. 312; 35 Stat. 781, as amended; secs. 32, 6, 26, 
41 Stat. 450, 753, 1248; secs. 1, 2, 3, 44 Stat. 301, as amended; secs. 
6, 3, 44 Stat. 659, 710; secs. 1, 2, 3, 44 Stat. 1057; 47 Stat. 1487; 49 
Stat. 1482, 1250, 1967, 2026; 52 Stat. 347; sec. 10, 53 Stat. 1196, as 
amended; 56 Stat. 273; sec. 10, 61 Stat. 915; sec. 3, 63 Stat. 683; 64 
Stat. 311; 25 U.S.C. 396, 396a-f, 30 U.S.C. 189, 271, 281, 293, 359. 
Interpret or apply secs. 5, 5, 44 Stat. 302, 1058, as amended; 58 Stat. 
483-485; 5 U.S.C. 301, 16 U.S.C. 508b, 30 U.S.C. 189, 192c, 271, 281, 
293, 359, 43 U.S.C. 387, unless otherwise noted.

    Source: 48 FR 35641, Aug. 5, 1983, unless otherwise noted. 
Redesignated at 75 FR 61084, Oct. 4, 2010.

Subpart A--General Provisions [Reserved]



                     Subpart B_Oil and Gas, General

    Authority: The Federal Oil and Gas Royalty Management Act of 1982 
(30 U.S.C. 1701 et seq.).

    Source: 49 FR 37345, Sept. 21, 1984, unless otherwise noted.



Sec. 1217.50  Audits of records.

    The Secretary, or his/her authorized representative, shall initiate 
and conduct audits relating to the scope, nature and extent of 
compliance by lessees, operators, revenue payors, and other persons with 
rental, royalty, net profit share and other payment requirements on a 
Federal or Indian oil and gas lease. Audits also will relate to 
compliance with applicable regulations and orders. All audits will be 
conducted in accordance with the notice and other requirements of 30 
U.S.C. 1717.



Sec. 1217.51  Lease account reconciliation.

    Specific lease account reconciliations shall be performed with 
priority being given to reconciling those lease accounts specifically 
identified by a State or Indian tribe as having significant potential 
for underpayment.



Sec. 1217.52  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 
U.S.C. 1702.

Subpart C--Oil and Gas, Onshore [Reserved]

Subpart D--Oil, Gas and Sulfur, Offshore [Reserved]



                             Subpart E_Coal



Sec. 1217.200  Audits.

    An audit of the accounts and books of operators/lessees for the 
purpose of determining compliance with Federal lease terms relating to 
Federal royalties may be required annually or at other times as directed 
by the Director for Office of Natural Resources Revenue. The audit shall 
be performed by a qualified independent certified public accountant or 
by an independent public accountant licensed by a State, territory, or 
insular possession of the United States or the District of Columbia, and 
at the expense of the operator/lessee. The operator/lessee shall 
furnish, free of charge, duplicate copies of audit reports that express 
opinions on such compliance to the Director for Office of Natural 
Resources Revenue within 30 days after the completion of each audit. 
Where such audits are required, the Director for Office of Natural 
Resources Revenue will specify the purpose and scope of the audit and 
the information which is to be verified or obtained.

[47 FR 33195, July 30, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
as amended at 67 FR 19112, Apr. 18, 2002]



                     Subpart F_Other Solid Minerals



Sec. 1217.250  Audits.

    An audit of the lessee's accounts and books may be made annually or 
at such other times as may be directed by the mining supervisor, by 
certified public accountants, and at the expense of the lessee. The 
lessee shall furnish free of cost duplicate copies of such annual or

[[Page 873]]

other audits to the mining supervisor, within 30 days after the 
completion of each auditing.

[37 FR 11041, June 1, 1972. Redesignated at 48 FR 35641, Aug. 5, 1983]



                     Subpart G_Geothermal Resources

    Source: 72 FR 24468, May 2, 2007, unless otherwise noted.



Sec. 1217.300  Audit or review of records.

    The Secretary, or his/her authorized representative, will initiate 
and conduct audits or reviews relating to the scope, nature, and extent 
of compliance by lessees, operators, revenue payors, and other persons 
with rental, royalty, fees, and other payment requirements on a Federal 
geothermal lease. Audits or reviews will also relate to compliance with 
applicable regulations and orders. All audits or reviews will be 
conducted in accordance with this part.



Sec. 1217.301  Lease account reconciliations.

    Specific lease account reconciliations will be performed with 
priority being given to reconciling those lease accounts specifically 
identified by a State as having significant potential for underpayment.



Sec. 1217.302  Definitions.

    Terms used in this subpart will have the same meaning as in 30 
U.S.C. 1702.

Subpart H--Indian Lands [Reserved]



PART 1218_COLLECTION OF MONIES AND PROVISION FOR GEOTHERMAL CREDITS AND 

INCENTIVES--Table of Contents



                      Subpart A_General Provisions

Sec.
1218.10 Information collection.
1218.40 Assessments for incorrect or late reports and failure to report.
1218.41 Assessments for failure to submit payment of same amount as Form 
          MMS-2014 or bill document or to provide adequate information.
1218.42 Cross-lease netting in calculation of late-payment interest.

                     Subpart B_Oil and Gas, General

1218.50 Timing of payment.
1218.51 How to make payments.
1218.52 How does a lessee designate a Designee?
1218.53 Recoupment of overpayments on Indian mineral leases.
1218.54 Late payments.
1218.55 Interest payments to Indians.
1218.56 Definitions.

                     Subpart C_Oil and Gas, Onshore

1218.100 Royalty and rental payments.
1218.101 Royalty and rental remittance (naval petroleum reserves).
1218.102 Late payment or underpayment charges.
1218.103 Payments to States.
1218.104 Exemption of States from certain interest and penalties.
1218.105 Definitions.

                 Subpart D_Oil, Gas and Sulfur, Offshore

1218.150 Royalties, net profit shares, and rental payments.
1218.151 Rental fees.
1218.152 Fishermen's Contingency Fund.
1218.153 [Reserved]
1218.154 Effect of suspensions on royalty and rental.
1218.155 Method of payment.
1218.156 Definitions.

                    Subpart E_Solid Minerals_General

1218.200 Payment of royalties, rentals, and deferred bonuses.
1218.201 Method of payment.
1218.202 Late payment or underpayment charges.
1218.203 Recoupment of overpayments on Indian mineral leases.

                     Subpart F_Geothermal Resources

1218.300 Payment of royalties, rentals, and deferred bonuses.
1218.301 Method of payment.
1218.302 Late payment or underpayment charges.
1218.303 May I credit rental towards royalty?
1218.304 May I credit rental towards direct use fees?
1218.305 How do I pay advanced royalties I owe under BLM regulations?
1218.306 May I receive a credit against production royalties for in-kind 
          deliveries of electricity I provide under contract to a State 
          or county government?
1218.307 How do I pay royalties due for my existing leases that qualify 
          for near-term production incentives under BLM regulations?

[[Page 874]]

Subpart G--Indian Lands [Reserved]

              Subpart H_Service of Official Correspondence

1218.500 What is the purpose of this subpart?
1218.520 What definitions apply to this subpart?
1218.540 How does ONRR serve official correspondence?
1218.560 How do I submit Form MMS-4444?
1218.580 When do I submit Form MMS-4444?

    Authority: 25 U.S.C. 396 et seq., 396a et seq., 2101 et seq.; 30 
U.S.C. 181 et seq., 351 et seq., 1001 et seq., 1701 et seq.; 31 U.S.C. 
3335; 43 U.S.C. 1301 et seq., 1331 et seq., and 1801 et seq.

    Source: 48 FR 35641, Aug. 5, 1983, unless otherwise noted. 
Redesignated at 75 FR 61084, Oct. 4, 2010.



                      Subpart A_General Provisions



Sec. 1218.10  Information collection.

    The information collection requirements contained in this part have 
been approved by OMB under 44 U.S.C. 3501 et seq. The forms, filing 
date, and approved OMB clearance numbers are identified in Sec. 1210.10 
of this chapter.

[57 FR 41867, Sept. 14, 1992]



Sec. 1218.40  Assessments for incorrect or late reports and failure to report.

    (a) An assessment of an amount not to exceed $10 per day may be 
charged for each report not received by Office of Natural Resources 
Revenue (ONRR) by the designated due date for geothermal, solid 
minerals, and Indian oil and gas leases.
    (b) An assessment of an amount not to exceed $10 per day may be 
charged for each incorrectly completed report for geothermal, solid 
minerals, and Indian oil and gas leases.
    (c) For purpose of assessments discussed in this section, a report 
is defined as follows:
    (1) For coal and other solid minerals leases, a report is each line 
on Form MMS-4430, Solid Minerals Production and Royalty Report; or on 
Form MMS-2014, Report of Sales and Royalty Remittance, as appropriate.
    (2) For Indian oil and gas and all geothermal leases, a report is 
each line on Form MMS-2014.
    (d) An assessment under this section shall not be shared with a 
State, Indian tribe, or Indian allottee.
    (e) The amount of the assessment to be imposed pursuant to 
paragraphs (a) and (b) of this section shall be established periodically 
by ONRR. The assessment amount for each violation will be based on 
ONRR's experience with costs and improper reporting. The ONRR will 
publish a Notice of the assessment amount to be applied in the Federal 
Register.

[49 FR 37346, Sept. 21, 1984. Redesignated and amended at 51 FR 15767, 
Apr. 28, 1986; 52 FR 27546, July 22, 1987; 52 FR 37452, Oct. 7, 1987; 57 
FR 52720, Nov. 5, 1992; 59 FR 38906, Aug. 1, 1994; 66 FR 45773, Aug. 30, 
2001; 73 FR 15897, Mar. 26, 2008]



Sec. 1218.41  Assessments for failure to submit payment of same amount as Form 

MMS-2014 or bill document or to provide adequate information.

    (a) The ONRR may assess an amount not to exceed $250 when the amount 
of a payment submitted by a reporter/payor for geothermal, solid 
minerals, and Indian oil and gas leases is not equivalent in amount to 
the total of individual line items on the associated Form MMS-2014, Form 
MMS-4430, or a bill document, unless ONRR has authorized the difference 
in amount.
    (b) The ONRR may assess an amount not to exceed $250 for each 
payment for geothermal, solid minerals, and Indian oil and gas leases 
submitted by a reporter/payor that cannot be automatically applied to 
the associated Form MMS-2014, Form MMS-4430, or a bill document because 
of inadequate or erroneous information submitted by the reporter/payor.
    (c) For purposes of this section, inadequate or erroneous 
information is defined as:
    (1) Absent or incorrect payor-assigned document number, required to 
be identified by the reporter/payor in Block 4 on Form MMS-2014 
(document 4 number), or the reuse of the same incorrect payor-assigned 
document 4 number in a subsequent reporting period.
    (2) Absent or incorrect bill document invoice number (to include the 
three-character alpha prefix and the nine-digit number) or the payor-
assigned document 4 number required to be identified by the reporter/
payor on the associated payment document, or the

[[Page 875]]

reuse of the same incorrect payor-assigned document 4 number in a 
subsequent reporting period.
    (3) Absent or incorrect name of the administering Bureau of Indian 
Affairs Agency/Area office; or the word ``allotted'' or the tribe name 
on payment documents remitted to ONRR for an Indian tribe or allottee. 
If the payment is made by EFT, the reporter/payor must identify the 
tribe/allottee on the EFT message by a pre-established five-digit code.
    (4) Absent or incorrect ONRR-assigned payor code on a payment 
document.
    (5) Absent or incorrect identification on a payment document.
    (d) For purposes of this section, the term ``Form MMS-2014'' 
includes submission of reports of royalty information, such as Form MMS-
4430.
    (e) For purposes of this section, a bill document is defined as any 
invoice that ONRR has issued for assessments, late-payment interest 
charges, or other amount owed. A payment document is defined as a check 
or wire transfer message.
    (f) The amount of the assessment to be imposed pursuant to 
paragraphs (a) and (b) of this section shall be established periodically 
by ONRR. The assessment amount will be based on ONRR's experience with 
costs and improper reporting and/or payment as specified in this 
section. The ONRR will publish a Notice in the Federal Register of the 
assessment amount to be applied with the effective date.

[58 FR 45438, Aug. 30, 1993, as amended at 73 FR 15897, Mar. 26, 2008]



Sec. 1218.42  Cross-lease netting in calculation of late-payment interest.

    (a) Interest due from a payor on any underpayment for any Federal 
mineral lease or leases (onshore or offshore) and on any Indian tribal 
mineral lease or leases for any production month shall not be reduced by 
offsetting against that underpayment any overpayment made by the payor 
on any other lease or leases, except as provided in paragraph (b) of 
this section. Interest due from a payor or any underpayment on any 
Indian allotted lease shall not be reduced by offsetting against any 
overpayment on any other Indian allotted lease under any circumstances.
    (b) Royalties attributed to production from a lease or leases which 
should have been attributed to production from a different lease or 
leases may be offset to determine whether and to what extent an 
underpayment exists on which interest is due if the following conditions 
are met:
    (1) The error results from attributing and reporting an equal volume 
of production, produced from a lease or leases during a particular 
production month, to a different lease or leases from which it was not 
produced for the same or another production month;
    (2) The payor is the same for the lease or leases to which 
production was attributed and the lease or leases to which it should 
have been attributed;
    (3) The payor submits production reports, pipeline allocation 
reports, or other similar documentary evidence pertaining to the 
specific production involved which verifies the correct production 
information;
    (4) The lessor is the same for the leases involved (in the case of 
Indian tribal leases, the same tribe is the lessor); and
    (5) The ultimate recipients of any royalty or other lease revenues 
under any applicable permanent indefinite appropriations are the same 
for, and receive the same percentage of revenue from, the leases.
    (c) If ONRR assesses late-payment interest and the payor asserts 
that some or all of the interest assessed is not owed pursuant to the 
exception set forth in paragraph (b) of this section, the burden is on 
the payor to demonstrate that the exception applies in the specific 
circumstances of the case.
    (d) The exception set forth in paragraph (b) of this section shall 
not operate to relieve any payor of liability imposed by statute or 
regulation for erroneous reporting.

[57 FR 62206, Dec. 30, 1992]



                     Subpart B_Oil and Gas, General

    Source: 49 FR 37346, Sept. 21, 1984, unless otherwise noted.

[[Page 876]]



Sec. 1218.50  Timing of payment.

    (a) Royalty payments are due at the end of the month following the 
month during which the oil and gas is produced and sold except when the 
last day of the month falls on a weekend or holiday. In such cases, 
payments are due on the first business day of the succeeding month. 
Rental payments are due as specified by the lease terms.
    (b) Invoices will be issued and payable as final collection actions. 
Payments made on an invoice are due as specified by the invoice.
    (c) All payments to ONRR are due as specified and are not deferred 
or suspended by reason of an appeal having been filed unless such 
deferral or suspension is approved in writing by an authorized ONRR 
official.
    (d)(1) Notwithstanding the provisions of paragraph (a) of this 
section and corresponding lease terms and Sec. 1210.52 of this chapter, 
the due date for submittal of royalty payments and Reports of Sales and 
Royalty Remittance (Form MMS-2014) for the production months of July, 
August, September, and October 2005 for Federal offshore and onshore oil 
and gas leases by oil and gas lessees or royalty payors who make the 
certification required under paragraph (d)(2) of this section is 
extended until January 3, 2006.
    (2) The extended due dates in paragraph (d)(1) of this section will 
apply to royalty payments and Reports of Sales and Royalty Remittance 
(Form MMS-2014) by any lessee or royalty payor who certifies that a 
hurricane that struck the Gulf of Mexico coast of the United States in 
August or September 2005 disrupted the lessee's or payor's operations to 
the extent that it prevented the lessee or royalty payor from making an 
accurate royalty payment or submitting an accurate Form MMS-2014.
    (3) A lessee's or royalty payor's certification under paragraph 
(d)(2) of this section that it is unable to generate and submit either 
an accurate royalty report or an accurate royalty payment will extend 
the due date for both royalty reporting and royalty payment.
    (4) Paragraphs (d)(1) through (d)(3) of this section do not apply to 
Indian leases or to Federal leases for minerals other than oil and gas.
    (5) Certifications under paragraph (d)(2) of this section should be 
submitted either:
    (i) By mail to: Robert Prael, Financial Manager, Office of Natural 
Resources Revenue, P.O. Box 25165, MS 350B1, Denver, CO 80225-0165, or
    (ii) By e-mail to [email protected].
    (e)(1) A lessee or royalty payor who submits a certification 
required under paragraph (d)(2) of this section may rely on the extended 
due dates prescribed in paragraph (d)(1) of this section unless and 
until ONRR notifies the lessee or royalty payor or operator that ONRR 
does not accept the certification.
    (2) If ONRR notifies the lessee or royalty payor that ONRR does not 
accept the lessee's or royalty payor's certification under paragraph 
(d)(2) of this section, the due date for royalty payments and Reports of 
Sales and Royalty Remittance will be the date specified in the notice.

[49 FR 37346, Sept. 21, 1984, as amended at 70 FR 56853, Sept. 29, 2005; 
73 FR 15898, Mar. 26, 2008]



Sec. 1218.51  How to make payments.

    (a) Definitions.
    ACH--Automated Clearing House. A type of EFT using the ACH network.
    Courtesy Notice--An ONRR-issued notice of rental or bonus due.
    Deferred Bonus Payment--Lease bonus paid in equal annual 
installments over a specified number of years.
    EFT--Electronic Funds Transfer. Any paperless transfer of funds a 
bank initiates through an electronic terminal. For ONRR purposes, EFT is 
limited to FEDWIRE and ACH transfers.
    FEDWIRE--A type of EFT using the Federal Reserve Wire network.
    Invoice document identification--The ONRR-assigned invoice document 
identification (three-alpha and nine-numeric characters).
    Payment--Any monies for royalty, bonus, rental, late payment charge, 
assessment, penalty, or other money sent to ONRR.
    Person--Any individual, firm, corporation, association, partnership, 
consortium, or joint venture (when established as a separate entity). 
The term does not include Federal agencies.

[[Page 877]]

    Report--Form MMS-2014, Report of Sales and Royalty Remittance.
    RIK--Royalty in kind.
    (b) General instructions. You must make all payments to ONRR 
electronically to the extent it is cost effective and practical. If you 
pay money to ONRR or to an Indian tribe or allottee, you must follow 
these procedures:
    (1) If ONRR instructs you to use EFT, you must use EFT for all 
payments to ONRR and/or a tribe.
    (2) Contact ONRR before using EFT. ONRR will provide you with EFT 
payment instructions.
    (3) Separate any payments on a Federal lease from any payments on an 
Indian lease.
    (4) If you are not required to use EFT, use one of the following 
types of payment documents. ONRR prefers that you use these payment 
documents in the order presented:
    (i) Commercial check drawn on a solvent bank;
    (ii) Certified check;
    (iii) Cashier's check;
    (iv) Money order;
    (v) Bank draft drawn on a solvent bank; or
    (vi) Federal Reserve check.
    (5) You must include your payor code on all payments.
    (6) You must pay in U.S. dollars.
    (c) How to complete a non-EFT payment. (1) Make any payment on a 
Federal lease payable to: ``Department of the Interior--Office of 
Natural Resources Revenue'' or ``DOI-ONRR.''
    (2) For an Indian allottee payment, send a separate payment for each 
Bureau of Indian Affairs (BIA) agency or area office represented by the 
leases on your report or invoice document. You must include the name of 
the applicable BIA agency or area office on your payment. Make your 
payment document payable to: ``Department of the Interior--Office of 
Natural Resources Revenue for BIA [Name] Agency (allotted)'' or ``DOI-
ONRR for BIA [Name] Agency (allotted).''
    (3) For an Indian tribal payment other than a lockbox payment, send 
a separate payment for each tribe represented by the leases on your 
report or invoice document. You must include the name of the Indian 
tribe on your payment. Make it payable to: ``Department of the 
Interior--Office of Natural Resources Revenue for BIA [Name of Tribe]'' 
or ``DOI-ONRR for BIA [Name of Tribe].''
    (4) For an Indian tribal lockbox payment, follow the instructions 
ONRR provides you on how to report and make the lockbox payment. These 
instructions are specific to each tribe's lockbox written agreement with 
the bank authorized to receive payments on the tribe's mineral leases. 
You will receive these instructions from ONRR when you are required to 
use a tribal lockbox for reports and payments.
    (d) Where to send a non-EFT payment when you use the U.S. Postal 
Service. (1) For a payment to an Indian tribal lockbox, send your 
payment to the appropriate tribal lockbox address.
    (2) For a Federal nonproducing lease rental or deferred bonus 
payment, send it to:

Office of Natural Resources Revenue, P.O. Box 5640, Denver, CO 80217-
5640.

    (3) For all other Federal and Indian lease payments other than those 
going to an Indian tribal lockbox, send them to:

Office of Natural Resources Revenue, P.O. Box 5810, Denver, CO 80217-
5810.

    (e) Where to send a non-EFT payment when you use a courier or 
overnight delivery service. You should send this type of payment to:

Office of Natural Resources Revenue, Building 85, Denver Federal Center, 
Room A-614, Denver, CO 80225-0165.

    (f) How to prepare and what to include on your payment document. (1) 
For Form MMS-2014 payments, you must include both your payor code and 
your payor-assigned document number.
    (2) For invoice payments, including RIK invoice payments, you must 
include both your payor code and invoice document identification.
    (3) For bonus payments:
    (i) For one-fifth bonus payments for offshore oil, gas, and sulphur 
leases, follow the instructions in the Notice of Lease Offering.
    (ii) For payment of the four-fifths bonus for an offshore lease, use 
EFT and follow the instructions in Sec. 1218.155(c).

[[Page 878]]

    (iii) For the successful bidder's bonus in the competitive sale of a 
coal, geothermal, or offshore mineral (other than oil, gas or sulfur) 
lease, follow the instructions and terms of the Notice of Competitive 
Lease Sale.
    (iv) For installment payments of deferred bonuses, you must use EFT.
    (4) If you are paying a lease rental you must:
    (i) See Sec. 1218.155(c) for instructions on how to pay first-year 
rentals of an offshore oil, gas, or sulfur lease;
    (ii) See the Notice of Lease Offering for instructions on how to pay 
first-year rentals other than those covered in paragraph (f)(4)(i) of 
this section.
    (iii) Include the ONRR Courtesy Notice, when provided, or write your 
payor code and government-assigned lease number on the payment document 
when paying a rental that is not reported on Form MMS-2014 and not paid 
by EFT.
    (g) When is a payment to ONRR due? (1) All payments are due to ONRR 
at the time law, regulation, or lease terms require unless ONRR approves 
a change according to part 1243 of this chapter. If you file an appeal, 
and the requirement to submit payment is suspended, the original payment 
due date for purposes such as calculating late payment interest is not 
changed.
    (2) If you use the U.S. Postal Service, courier, or overnight mail 
to send your payment, it is due at the ONRR addresses in paragraphs (d) 
and (e) of this section before 4 p.m. Mountain Time on the due date, 
regardless of when you sent it.
    (3) If you use EFT to send your payment, it is due in the ONRR 
account by the payment due date. You are responsible for your actions or 
your bank's actions that cause a late or incorrect payment. You will not 
be held responsible for mechanical or system failures of EFT payments.
    (h) What happens if payments are late or overdue? (1) If ONRR 
receives your payment late, ONRR will impose a late-payment interest 
charge under Sec. 1218.54.
    (2) If you do not pay an amount you owe, ONRR may assess civil 
penalties under part 1241 of this chapter or other applicable 
regulations.

[62 FR 19498, Apr. 22, 1997, as amended at 66 FR 45773, Aug. 30, 2001; 
67 FR 19112, Apr. 18, 2002; 73 FR 15898, Mar. 26, 2008]



Sec. 1218.52  How does a lessee designate a Designee?

    (a) If you are a lessee under 30 U.S.C. 1702(7), and you want to 
designate a person to make all or part of the payments due under a lease 
on your behalf under 30 U.S.C. 1712(a), you must notify ONRR or the 
applicable delegated state in writing of such designation by submitting 
Form MMS-4425, Designation Form for Royalty Payment Responsibility. Your 
notification for each lease must include the following:
    (1) The lease number for the lease;
    (2) The type of products you make payments for e.g., oil, gas.
    (3) The type of payments you are responsible for e.g., royalty, 
minimum royalty, rental.
    (4) Whether you are:
    (i) A lessee of record (record title owner) in the lease; or
    (ii) An operating rights owner (working interest owner) in the 
lease, and the percentage of your operating rights ownership in the 
lease;
    (5) The name, address, Taxpayer Identification Number (TIN), and 
phone number of your Designee;
    (6) The name, address, and phone number of the individual to contact 
for the person you named in paragraph (a)(5) of this section;
    (7) Your TIN;
    (8) The date the designation is effective;
    (9) The date the designation terminates, if applicable, and
    (10) A copy of the written designation;
    (b) The person you designate under paragraph (a) of this section is 
your Designee under 30 U.S.C. 1701(24) and 30 U.S.C. 1712(a).
    (c) If you want to terminate a designation you made under paragraph 
(a) of this section, you must submit a revised Form MMS-4425 before the 
termination stating:
    (1) The date the designation is due to terminate; and

[[Page 879]]

    (2) If you are not reporting and paying royalties and making other 
payments to ONRR, a new designation under paragraph (a) of this section.
    (d) ONRR may require you to provide notice when there is a change in 
the percentage of your record title or operating rights ownership.

[62 FR 42066, Aug. 5, 1997, as amended at 73 FR 15898, Mar. 26, 2008]



Sec. 1218.53  Recoupment of overpayments on Indian mineral leases.

    (a) Whenever an overpayment is made under an Indian oil and gas 
lease, a payor may recoup the overpayment through a recoupment on Form 
MMS-2014 against the current month's royalties or other revenues owed on 
the same lease. However, for any month a payor may not recoup more than 
50 percent of the royalties or other revenues owed in that month under 
an individual allotted lease or more than 100 percent of the royalties 
or other revenues owed in that month under a tribal lease.
    (b) With written permission authorized by tribal statute or 
resolution, a payor may recoup an overpayment against royalties or other 
revenues owed in that month under other leases for which that tribe is 
the lessor. A copy of the tribe's written permission must be furnished 
to ONRR pursuant to instructions for reporting recoupments in the ONRR 
revenue reporter handbook. See part 1210 of this chapter. Recouping 
overpayments on one allotted lease from royalties paid to another 
allotted lease is specifically prohibited.
    (c) Overpayments subject to recoupment under this section include 
all payments made in excess of the required payment for royalty, rental, 
bonus, or other amounts owed as specified by statute, regulation, order, 
or terms of an Indian mineral lease.
    (d) The ONRR Director or his/her designee may order any payor to not 
recoup any amount for such reasonable period of time as may be necessary 
for ONRR to review the nature and amount of any claimed overpayment.

[60 FR 3087, Jan. 13, 1995, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 1218.54  Late payments.

    (a) An interest charge shall be assessed on unpaid and underpaid 
amounts from the date the amounts are due.
    (b) The interest charge on late payments shall be at the 
underpayment rate established by the Internal Revenue Code, 26 U.S.C. 
6621(a)(2) (Supp. 1987).
    (c) Interest will be charged only on the amount of the payment not 
received. Interest will be charged only for the number of days the 
payment is late.
    (d) A portion of the interest collected will be paid to a State 
where the State shares in mineral revenues from Federal leases.
    (e) An overpayment on a lease or leases may be offset against an 
underpayment on a different lease or leases to determine a net 
underpayment on which interest is due pursuant to conditions specified 
in Sec. 1218.42.

[49 FR 37346, Sept. 21, 1984, as amended at 55 FR 37230, Sept. 10, 1990; 
57 FR 62206, Dec. 30, 1992]



Sec. 1218.55  Interest payments to Indians.

    (a) All interest collected from unpaid or underpayments on Indian 
tribal or allotted leases will be paid to the tribe or allottee.
    (b) Any disbursement of Indian mineral revenues not made by the due 
date as required in Sec. 1219.103 of this chapter shall accrue 
interest.
    (c) Interest shall be computed at the underpayment rate established 
by the Internal Revenue Code, 26 U.S.C. 6621(a)(2) (Supp. 1987).
    (d) The interest shall be payable only for the number of days the 
disbursement is late.

[49 FR 37346, Sept. 21, 1984, as amended at 55 FR 37230, Sept. 10, 1990]



Sec. 1218.56  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 
U.S.C. 1702.

[49 FR 37346, Sept. 21, 1984. Redesignated at 51 FR 15767, Apr. 28, 
1986]

[[Page 880]]



                     Subpart C_Oil and Gas, Onshore



Sec. 1218.100  Royalty and rental payments.

    (a) Payment of royalties and rentals. As specified under the 
provisions of the lease, the lessee shall submit all rental payments 
when due and shall pay in value or deliver in production all royalties 
in the amounts of value or production determined by ONRR to be due.
    (b) If the lessor elects to take royalty in oil or gas, unless 
otherwise agreed upon, such royalty shall be delivered on the leasehold, 
by the lessee to the order of and without cost to the lessor, as 
instructed by the Director.
    (c) Method of payment. The payor shall tender all payments in 
accordance with Sec. 1218.51.

[47 FR 47773, Oct. 27, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and amended at 52 FR 23815, June 25, 1987]



Sec. 1218.101  Royalty and rental remittance (naval petroleum reserves).

    Remittance covering payments of royalty or rental on naval petroleum 
reserves must be accomplished by necessary identification information 
and sent direct to the Director, Naval Petroleum Reserves in California.

[47 FR 47773, Oct. 27, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983]



Sec. 1218.102  Late payment or underpayment charges.

    (a) The failure to make timely or proper payments of any monies due 
pursuant to leases, permits, and contracts subject to these regulations 
will result in the collection by the ONRR of the full amount past due 
plus a late payment charge. Exceptions to this late payment charge may 
be granted when estimated payments on minerals production have already 
been made timely and otherwise in accordance with instructions provided 
by ONRR to the payor. However, late payment charges assessed with 
respect to any Indian lease, permit, or contract shall be collected and 
paid to the Indian or tribe to which the amount overdue is owed.
    (b) Late payment charges will be assessed on any late payment or 
underpayment from the date that the payment was due until the date that 
the payment was received at the ONRR addresses specified in Sec. 
1218.51. Payments received at the specified ONRR addresses after 4 p.m. 
mountain time are considered received the following business day.
    (c) Late payment charges apply to all underpayments and payments 
received after the date due. The charges include production and minimum 
royalties; assessments for liquidated damages; administrative fees and 
payments by purchasers of royalty taken-in-kind; or any other payments, 
fees, or assessments that a lessee/operator/permittee/payor/royalty 
taken-in-kind purchaser is required to pay by a specified date. The 
failure to pay past due amounts, including late-payment charges, will 
result in the initiation of other enforcement proceedings.
    (d) An overpayment on a lease or leases may be offset against an 
underpayment on a different lease or leases to determine a net 
underpayment on which interest is due pursuant to conditions specified 
in Sec. 1218.42.

[47 FR 47773, Oct. 27, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and amended at 49 FR 37347, Sept. 21, 1984; 57 FR 41868, Sept. 14, 1992; 
57 FR 62206, Dec. 30, 1992; 67 FR 19112, Apr. 18, 2002]



Sec. 1218.103  Payments to States.

    (a) Any amount that is payable by ONRR to a State but is not paid on 
the due date, as specified in Sec. 1219.100 of this chapter, or that is 
held in a suspense account pending resolution of a dispute as specified 
in Sec. 1219.101 of this chapter, shall accrue interest payable to the 
State.
    (b) Interest shall be computed at the underpayment rate established 
by the Internal Revenue Code, 26 U.S.C. 6621(a)(2) (Supp. 1987).
    (c) Interest shall be computed only for the number of days the 
disbursement is late. In the case of suspended amounts subject to 
interest, it shall be computed beginning with the calendar day following 
the day that the monies normally would have been paid to the State had 
they not been in suspense.

[49 FR 37347, Sept. 21, 1984, as amended at 55 FR 37230, Sept. 10, 1990]

[[Page 881]]



Sec. 1218.104  Exemption of States from certain interest and penalties.

    (a) States are exempt from being assessed for any interest or 
penalties found to be due against the Department of the Interior for 
failure to comply with the Emergency Petroleum Allocation Act of 1973, 
as amended, or any regulation issued by the Secretary of Energy 
thereunder concerning the certification or processing of crude oil taken 
in-kind as royalty by the Secretary.
    (b) Any State shall be assessed for its share of any overcharge 
resulting from a determination that DOI failed to comply with the 
Emergency Petroleum Allocation Act of 1973, as amended. Each State's 
share shall be assessed against monies owed to the State. Such 
assessment shall be first against monies owed to such State as a result 
of royalty audits prior to January 12, 1983, the enactment date of the 
Federal Oil and Gas Royalty Management Act of 1982, then against other 
monies owed. The State shall be liable for any balance.
    (c) A State's liability for repayment of an overcharge under this 
section shall exist for any amounts resulting from a judgment in a civil 
suit or as the result of settlement of a claim through a negotiated 
agreement. State liability would be offset against future mineral 
revenue distributions to the State.

[49 FR 37347, Sept. 21, 1984]



Sec. 1218.105  Definitions.

    Terms used in this subpart have the same meaning as in 30 U.S.C. 
1702.

[49 FR 37347, Sept. 21, 1984]



                 Subpart D_Oil, Gas and Sulfur, Offshore



Sec. 1218.150  Royalties, net profit shares, and rental payments.

    (a) As specified under the provisions of the lease, the lessee shall 
submit all rental payments when due and shall pay in value or deliver in 
production all royalties and net profit shares in the amounts of value 
or production determined by ONRR to be due.
    (b) The failure to make timely or proper payments of any monies due 
pursuant to leases, permits, and contracts subject to these regulations 
will result in the collection of the amount past due plus a late payment 
charge. Exceptions to this late payment charge may be granted when 
estimated payments on minerals production have already been made timely 
and otherwise in accordance with instructions provided by ONRR to the 
payor.
    (c) Late payment charges will be assessed on any late payment or 
underpayment from the date that the payment was due until the date that 
the payment was received at the ONRR addresses specified in Sec. 
1218.51. Payments received at the specified ONRR addresses after 4 p.m. 
mountain time are considered received the following business day.
    (d) Late payment charges apply to all underpayments and payments 
received after the date due. These charges include production and 
minimum royalties; assessments for liquidated damages; administrative 
fees and payments by purchasers of royalty taken-in-kind; or any other 
payments, fees, or assessments that a lessee/operator/payor/permittee/
royalty taken-in-kind purchaser is required to pay by a specified date. 
The failure to pay past due amounts, including late payment charges, 
will result in the initiation of other enforcement proceedings.
    (e) An overpayment on a lease or leases, excluding rental payments, 
may be offset against an underpayment on a different lease or leases to 
determine a net underpayment on which interest is due pursuant to 
conditions specified in Sec. 1218.42.

[47 FR 22528, May 25, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and amended at 49 FR 37347, Sept. 21, 1984; 52 FR 23815, June 25, 1987; 
57 FR 41868, Sept. 14, 1992; 57 FR 62206, Dec. 30, 1992; 67 FR 19112, 
Apr. 18, 2002]



Sec. 1218.151  Rental fees.

    The annual rental paid in any year is in addition to, and is not 
credited against, any royalties due from production. The lessee must pay 
an annual rental as shown in paragraphs (a), (b), and (c) of this 
section. Discovery means one or more wells on the lease that meet the 
requirements in part 250, subpart A of this title.

[[Page 882]]

    (a) This paragraph applies to any lease not covered by paragraph (b) 
or paragraph (c) of this section.

------------------------------------------------------------------------
                                   Issued as a
             For--               result of a sale   The lessee must pay
                                      held--              rental--
------------------------------------------------------------------------
(1) An oil and gas lease......  Before March 26,   On or before the
                                 2001.              first day of each
                                                    lease year before
                                                    the discovery of oil
                                                    or gas on the lease.
(2) An oil and gas lease......  After March 26,    On or before the
                                 2001.              first day of each
                                                    lease year before
                                                    the discovery of oil
                                                    or gas on the lease,
                                                    then on or before
                                                    the last day of each
                                                    lease year in any
                                                    full year in which
                                                    royalties on
                                                    production are not
                                                    due.
(3) A mineral lease for other   Before March 26,   On or before the
 than oil or gas.                2001.              first day of each
                                                    lease year before
                                                    the discovery of
                                                    paying quantities.
(4) A mineral lease for other   After March 26,    On or before the
 than oil or gas.                2001.              first day of each
                                                    lease year before
                                                    the date the first
                                                    royalty payment is
                                                    due on the lease,
                                                    then on or before
                                                    the last day of each
                                                    lease year in any
                                                    full year in which
                                                    royalties on
                                                    production are not
                                                    due.
------------------------------------------------------------------------

    (b) This paragraph applies to any lease created by segregating a 
portion of a producing lease when there is no actual or allocated 
production on the segregated portion. The lessee must pay an annual 
rental for the segregated portion at the rate specified in the lease. 
The lessee must pay the rental as shown in the following table.

------------------------------------------------------------------------
    If the lease results from a
           segregation--                The lessee must pay rental--
------------------------------------------------------------------------
(1) Before March 26, 2001.........  On or before the first day of each
                                     lease year before the discovery of
                                     oil or gas on the segregated
                                     portion.
(2) After March 26, 2001..........  On or before the first day of each
                                     lease year before the discovery of
                                     oil or gas on the lease, then on or
                                     before the last day of each lease
                                     year in any full year in which
                                     royalties on production are not
                                     due.
------------------------------------------------------------------------

    (c) For leases issued subject to the net profit sharing provisions, 
annual rental payments shall be due and payable in advance, on the first 
day of each lease year which commences prior to the date the first 
profit share payment becomes due. The owner of any lease created by the 
segregation of a portion of a lease subject to net profit sharing 
provisions, shall pay an annual rental for such segregated portion at 
the rate per acre or hectare specified in the lease. This rental shall 
be payable each year following the year in which the segregation becomes 
effective and shall continue to be due and payable, in advance, on the 
first day of each year which commences prior to the date the first 
profit share payment becomes due.

[44 FR 38276, June 29, 1979, as amended at 45 FR 69175, Oct. 17, 1980; 
47 FR 25972, June 16, 1982. Redesignated at 47 FR 47006, Oct. 22, 1982, 
and at 48 FR 35641, Aug. 5, 1983; 66 FR 11518, Feb. 23, 2001; 67 FR 
19112, Apr. 18, 2002]



Sec. 1218.152  Fishermen's Contingency Fund.

    Upon the establishment of the Fishermen's Contingency Fund, any 
holder of a lease issued or maintained under the Outer Continental Shelf 
Lands Act and any holder of an exploration permit or of an easement or 
right-of-way for the construction of a pipeline, shall pay an amount 
specified by the Director, ONRR, who shall assess and collect the 
specified amount from each holder and deposit it into the Fund. With 
respect to prelease exploratory drilling permits, the amount will be 
collected at the time of issuance of the permit.

[52 FR 5458, Feb. 23, 1987]



Sec. 218.153  [Reserved]



Sec. 1218.154  Effect of suspensions on royalty and rental.

    (a) ONRR will not relieve the lessee of the obligation to pay rental 
or minimum royalty for or during the suspension if the BOEMRE Regional 
Supervisor:

[[Page 883]]

    (1) Grants a suspension of operations or production, or both, at the 
request of the lessee; or
    (2) Directs a suspension of operations or production, or both, under 
30 CFR 250.173(a).
    (b) ONRR will not require a lessee to pay rental or minimum royalty 
for or during the suspension if the BOEMRE Regional Supervisor directs a 
suspension of operations or production, or both, except as provided in 
(a)(2) of this section.
    (c) If the lease anniversary date falls within a period of 
suspension for which no rental or minimum royalty payments are required 
under paragraph (b) of this section, the prorated rentals or minimum 
royalties are due and payable as of the date the suspension period 
terminates. These amounts shall be computed and notice thereof given the 
lessee. The lessee shall pay the amount due within 30 days after receipt 
of such notice. The anniversary date of a lease shall not change by 
reason of any period of lease suspension or rental or royalty relief 
resulting therefrom.

[44 FR 38276, June 29, 1979; 44 FR 55380, Sept. 26, 1979. Redesignated 
and amended at 47 FR 47006, 47007, Oct. 22, 1982. Further redesignated 
at 48 FR 35641, Aug. 5, 1983 and amended at 51 FR 19063, May 27, 1986; 
54 FR 50616, Dec. 8, 1989; 64 FR 72775, Dec. 28, 1999; 73 FR 15898, Mar. 
26, 2008; 76 FR 38561, July 1, 2011]



Sec. 1218.155  Method of payment.

    (a) Payment of royalties and rentals. With the exception of first-
year rental, the payor shall tender all payments in accordance with 
Sec. 1218.51. First-year rental shall be paid in accordance with 
paragraph (c) of this section.
    (b) Payment of the one-fifth bonus bid amount. (1) Each lease bid 
must include a payment for the one-fifth bonus bid deposit amount unless 
the bidder is otherwise directed by the Secretary. Further instructions 
on how to make payment with the bid will be included in the notice of 
each lease offering. EFT may be used as a method of payment for the one-
fifth bonus bid amount.
    (2) Beginning with lease offerings held after February 1, 1984, the 
one-fifth bonus amount received from a high bidder shall be deposited 
into an escrow account created pursuant to an agreement between the 
Departments of the Interior and Treasury, pending acceptance or 
rejection of the bid. The one-fifth bonus funds will be invested in 
public debt securities. Investment of this amount by the U.S. Government 
does not indicate acceptance of the bid. The one-fifth bonus amounts 
submitted with bids other than the highest valid bid will be returned to 
respective bidders after bids are opened, recorded, and ranked. Return 
of such amounts will not affect the status, validity, or ranking of 
bids. The one-fifth bonus bid amount received from any high bidder and 
held by the Government pending acceptance or rejection, will be returned 
with actual interest earned, if the bid is subsequently rejected. The 
interest accrued during the period held in the account pending 
acceptance or rejection of the bid will accrue to the Government when 
the bid is accepted.
    (c) Payment of the four-fifths bonus bid amount and the first year's 
rental. Payment shall be made to ONRR by EFT unless otherwise directed 
by the Secretary. The payment by EFT via the FRCS must be received by 
the Federal Reserve Bank of New York no later than noon, eastern 
standard time, on the 11th business day after receipt of the lease forms 
by the successful bidder. A ``business day'' is considered to be a day 
on which the OCS regional office issuing the lease is open for business. 
The lease will not be executed by the appropriate ONRR official until 
payment is received. Failure to remit by EFT or as directed by the 
Secretary within the time specified above will result in forfeiture of 
the one-fifth bonus bid amount and the lease will not be executed by the 
appropriate ONRR official. Payors will not be held responsible for late 
payment due to actions beyond their control, such as mechanical or 
systems failure of FRCS or FDS. Payors will be held responsible for 
incorrect actions of their bank which result in late payments. A 2-day 
grace period will be allowed to make up a deficient payment, but a late 
payment charge will be assessed for this late payment and a penalty will 
also be assessed if appropriate. Late payment charges will be assessed 
in accordance with subpart B of this part.

[[Page 884]]

    (d) General. (1) Payors using the appropriate means of payment (EFT, 
check, etc.) may pay for multiple lease obligations with a single 
remittance but must ensure that the payment complies with subpart B of 
this part and the remittance advice adequately identifies the single 
payment. The format to be used for such identification will be provided 
by the ONRR Accounting Center.
    (2) Where to pay.
    (3) The ONRR mailing addresses for payments to ONRR are specified in 
Sec. 1218.51.
    (4) Payments received at the ONRR addresses after 4 p.m. mountain 
time are considered received the following business day.
    (e) Miscellaneous payments. Payments shall be made to the manager of 
the appropriate Outer Continental Shelf field office by cash, check or 
bank draft payable to ``Department of the Interior--ONRR'' for 
miscellaneous payments such as:
    (1) Pipeline rights-of-way application filing fees and rentals, 
pipeline accessory site rentals and application fees, and other related 
costs.
    (2) Filing and approval fees for transfers of interest in leases.

[49 FR 8605, Mar. 8, 1984, as amended at 52 FR 23815, June 25, 1987; 53 
FR 43201, Oct. 26, 1988; 57 FR 41868, Sept. 14, 1992; 62 FR 19499, Apr. 
22, 1997; 67 FR 19112, Apr. 18, 2002; 73 FR 15898, Mar. 26, 2008]



Sec. 1218.156  Definitions.

    Terms used in this subpart have the same meaning as in 30 U.S.C. 
1702.

[52 FR 23815, June 25, 1987]



                    Subpart E_Solid Minerals_General



Sec. 1218.200  Payment of royalties, rentals, and deferred bonuses.

    As specified under the provisions of the lease, the lessee shall 
submit all rental and deferred bonus payments when due and shall pay in 
value all royalties in the amount determined by ONRR to be due.

[52 FR 23815, June 25, 1987]



Sec. 1218.201  Method of payment.

    You must tender all payments in accordance with Sec. 1218.51, 
except as follows:
    (a) For purposes of this section, report means the Solid Minerals 
Production and Royalty Report, Form MMS-4430, rather than the Form MMS-
2014.
    (b) For Form MMS-4430 payments, include both your customer 
identification and your customer document identification numbers on your 
payment document, rather than the information required under Sec. 
1218.51(f)(1).
    (c) For a rental payment that is not reported on Form MMS-4430, 
include the ONRR Courtesy Notice when provided or write your customer 
identification number and Government-assigned lease number on the 
payment document, rather than the information required under Sec. 
1218.51(f)(4)(iii).

[66 FR 45773, Aug. 30, 2001]



Sec. 1218.202  Late payment or underpayment charges.

    (a) The failure to make timely or proper payment of any monies due 
pursuant to leases and contracts subject to these rules will result in 
the collection by ONRR of the full amount past due plus a late payment 
charge. Exceptions to this late payment charge may be granted when 
estimated payments on minerals production have already been made timely 
and otherwise in accordance with instructions provided by ONRR to the 
operator/lessee. However, late payment charges assessed with respect to 
any Indian lease, permit, or contract shall be collected and paid to the 
Indian or tribe to which the amount overdue is owed.
    (b) Late payment charges will be assessed on any late payment or 
underpayment from the date that the payment was due until the date that 
the payment was received at the ONRR addresses specified in Sec. 
1218.51. Payments received at the specified ONRR addresses after 4 p.m. 
mountain time are considered received the following business day.
    (c) Late payment charges are calculated on the basis of a percentage 
assessment rate. In the absence of a specific lease, permit, license or 
contract provision prescribing a different rate,

[[Page 885]]

this percentage assessment rate is prescribed by the Department of the 
Treasury as the ``Treasury Current Value of Funds Rate.''
    (d) This rate is available in the Treasury Fiscal Requirements 
Manual Bulletins that are published prior to the first day of each 
calendar quarter for application to overdue payments or underpayments in 
the new calendar quarter. The rate is also published in the Notices 
section of the Federal Register and indexed under ``Fiscal Service/
Notices/Funds Rate; Treasury Current Value.''
    (e) Late payment charges apply to all underpayments and payments 
received after the date due. These charges include production, minimum, 
or advance royalties; assessments for liquidated damages; or any other 
payments, fees, or assessments that an operator/lessee is required to 
pay by a specified date. The failure to pay past due payments, including 
late payment charges, will result in the initiation of other enforcement 
proceedings.
    (f) An overpayment on a lease or leases may be offset against an 
underpayment on a different lease or leases to determine a net 
underpayment on which interest is due pursuant to conditions specified 
in Sec. 1218.42.

[47 FR 33195, July 30, 1982; 47 FR 53366, Nov. 26, 1982. Redesignated at 
48 FR 35641, Aug. 5, 1983, and further redesignated at 52 FR 23815, June 
25, 1987, as amended at 57 FR 41868, Sept. 14, 1992; 57 FR 62207, Dec. 
30, 1992; 59 FR 14559, Mar. 29, 1994; 65 FR 55189, Sept. 13, 2000; 67 FR 
19112, Apr. 18, 2002]



Sec. 1218.203  Recoupment of overpayments on Indian mineral leases.

    (a) Whenever an overpayment is made under an Indian solid mineral 
lease, a payor may recoup the overpayment through a recoupment on Form 
MMS-4430 against the current month's royalties or other revenues owed on 
the same lease. However, for any month a payor may not recoup more than 
50 percent of the royalties or other revenues owed in that month under 
an individual allotted lease or more than 100 percent of the royalties 
or other revenues owed in that month under a tribal lease.
    (b) With written permission authorized by tribal statute or 
resolution, a payor may recoup an overpayment against royalties or other 
revenues owed in that month under other leases for which that tribe is 
the lessor. A copy of the tribe's written permission must be furnished 
to ONRR for reporting recoupments. Call 1-888-201-6416 for instructions. 
Recouping overpayments on one allotted lease from royalties paid to 
another allotted lease is specifically prohibited.
    (c) Overpayments subject to recoupment under this section include 
all payments made in excess of the required payment for royalty, rental, 
bonus, or other amounts owed as specified by statute, regulation, order, 
or terms of an Indian mineral lease.
    (d) The ONRR Director or his/her designee may order any payor to not 
recoup any amount for such reasonable period of time as may be necessary 
for ONRR to review the nature and amount of any claimed overpayment.

[60 FR 3087, Jan. 13, 1995, as amended at 66 FR 45773, Aug. 30, 2001; 66 
FR 50827, Oct. 5, 2001]



                     Subpart F_Geothermal Resources



Sec. 1218.300  Payment of royalties, rentals, and deferred bonuses.

    As specified under the provisions of the lease, the lessee shall 
submit all rental and deferred bonus payments when due and shall pay in 
value all royalties in the amount determined by ONRR to be due.

[52 FR 23815, June 25, 1987]



Sec. 1218.301  Method of payment.

    The payor shall tender all payments in accordance with Sec. 
1218.51.

[52 FR 23815, June 25, 1987]



Sec. 1218.302  Late payment or underpayment charges.

    (a) The failure to make timely or proper payment of any monies due 
pursuant to leases and contracts subject to these regulations will 
result in the collection by the ONRR of the full amount past due plus a 
late payment charge. Exceptions to this late payment charge may be 
granted when estimated payments on minerals production have already been 
made timely and otherwise in accordance with the

[[Page 886]]

instructions provided by the ONRR to the payor.
    (b) Late payment charges will be assessed on any late payment or 
underpayment from the date that the payment was due until the date that 
the payment was received at the ONRR addresses specified in Sec. 
1218.51. Payments received at the specified ONRR addresses after 4 p.m. 
Mountain Time are considered received the following business day.
    (c) Late payment charges are calculated on the basis of a percentage 
assessment rate. In the absence of a specific lease, permit, license or 
contract provision prescribing a different rate, this percentage 
assessment rate is prescribed by the Department of the Treasury as the 
``Treasury Current Value of Funds Rate.''
    (d) This rate is available in the Treasury Fiscal Requirements 
Manual Bulletins that are published prior to the first day of each 
calendar quarter for application to overdue payments or underpayments in 
the new calendar quarter. The rate is also published in the Notices 
section of the Federal Register and indexed under ``Fiscal Service/
Notices/Funds Rate; Treasury Current Value.''
    (e) Late payment charges apply to all underpayments and payments 
received after the date due. These charges include production, minimum, 
and compensatory royalties; assessments for liquidated damages; 
administrative fees and payments by purchasers of royalty taken-in-kind; 
or any other payments, fees, or assessments that a lessee/operator/
payor/royalty taken-in-kind purchaser is required to pay by a specified 
date. The failure to pay past due payments, including late payment 
charges, will result in the initiation of other enforcement proceedings.
    (f) An overpayment on a lease or leases may be offset against an 
underpayment on a different lease or leases to determine a net 
underpayment on which interest is due pursuant to conditions specified 
in Sec. 1218.42.

[47 FR 22528, May 25, 1982. Redesignated at 48 FR 35641, Aug. 5, 1983, 
and further redesignated at 51 FR 15767, Apr. 28, 1986 and 52 FR 23815, 
June 25, 1987, as amended at 57 FR 41868, Sept. 14, 1992; 57 FR 62207, 
Dec. 30, 1992; 59 FR 14559, Mar. 29, 1994; 65 FR 55189, Sept. 13, 2000; 
67 FR 19112, Apr. 18, 2002]



Sec. 1218.303  May I credit rental towards royalty?

    (a)(1) For Class II leases as defined in Sec. 1206.351 of this 
chapter, and for Class III leases as defined in that section that elect 
under 43 CFR 3200.7(a)(2) to be subject to all of the BLM regulations 
promulgated for leases issued after August 8, 2005 you may credit the 
annual rental that you paid before the first day of the year for which 
the annual rental is owed against the royalty due for the lease year for 
which the rental was paid. You may not apply any annual rental paid in 
excess of the royalty due for a particular lease year as a credit 
against any royalty due in any subsequent lease year.
    (2) For purposes of this section, the term ``royalty'' includes any 
advanced royalty payable under 30 U.S.C. 1004(f) for a cessation of 
production.
    (b) If portions of your lease are located both within and outside of 
a participating area, you may credit against royalty under paragraph (a) 
only that percentage of the rental you paid that corresponds to the 
percentage of the lease within the participating area on a per-acre 
basis.

[72 FR 24468, May 2, 2007]



Sec. 1218.304  May I credit rental towards direct use fees?

    You may not credit annual rental toward direct use fees you are 
required to pay that year under Sec. 1206.356 of this chapter. You must 
pay the direct use fees in addition to the annual rental due.

[72 FR 24468, May 2, 2007]



Sec. 1218.305  How do I pay advanced royalties I owe under BLM regulations?

    If you pay advanced royalties under 43 CFR 3212.15(a)(1) to retain 
your lease:

[[Page 887]]

    (a) You must pay an advanced royalty monthly equal to the average 
monthly royalty you paid under 30 CFR part 1206, subpart H (including 
the amount against which you applied the annual rental as a credit) for 
the last 3 years the lease was producing. If your lease has been 
producing for less than 3 years, then use the average monthly royalty 
payment for the entire period your lease has been producing 
continuously;
    (b) The ONRR must receive your advanced royalty payment before the 
end of each full calendar month in which no production occurs;
    (c) You may credit any advanced royalty you pay against production 
royalties you owe after your lease resumes production. You may not 
reduce the amount of any production royalty paid for any year below 
zero.

[72 FR 24468, May 2, 2007]



Sec. 1218.306  May I receive a credit against production royalties for in-kind 

deliveries of electricity I provide under contract to a State or county 

government?

    (a) You may receive a credit against royalties for in-kind 
deliveries of electricity you provide under contract to a State or 
county government if:
    (1) The State or county to which you provide electricity would 
receive a portion of the royalties you paid in money for the lease under 
30 U.S.C. 191 or 30 U.S.C. 1019, except as otherwise provided under the 
Mineral Leasing Act for Acquired Lands, 30 U.S.C. 355, because your 
lease is located in that State or county. If your lease is located in 
more than one State or county, the revenues are paid to the respective 
States or counties based on their proportionate shares of the total 
acres in the lease;
    (2) The ONRR approves in advance your contract with the State or 
county to which you are providing in-kind electricity; and
    (3) Your contract provides that you will use the wholesale value of 
the electricity for the area where your lease is located to establish 
the specific methodology to determine the amount of the credit; and
    (b) The maximum credit you may take under this section is equal to 
the portion of the royalty revenue that ONRR would have paid to the 
State or county that is a party to the contract had you paid royalty in 
money on all of the electricity you delivered to the State or county 
based on the wholesale value of the electricity. You must pay in money 
any royalty amount that is not offset by the credit allowed under this 
section, calculated based on the wholesale value of the electricity.
    (c) The electricity the State or county government receives from you 
satisfies the Secretary's payment obligation to the State or county 
under 30 U.S.C. 191 or 30 U.S.C. 1019.

[72 FR 24468, May 2, 2007]



Sec. 1218.307  How do I pay royalties due for my existing leases that qualify 

for near-term production incentives under BLM regulations?

    If you qualify for a production incentive under BLM regulations at 
43 CFR subpart 3212, your royalty due on the production BLM determines 
to be qualified for a production incentive under 43 CFR 3212.23 and 
3212.24 is 50 percent of the amount of the total royalty that would 
otherwise be due under 30 CFR part 1206, subpart H.

[72 FR 24468, May 2, 2007]

Subpart G--Indian Lands [Reserved]



              Subpart H_Service of Official Correspondence

    Source: 71 FR 51751, Aug. 31, 2006, unless otherwise noted.



Sec. 2218.500  What is the purpose of this subpart?

    This subpart contains instructions for designating a specific 
addressee of record for service of official correspondence using Form 
MMS-4444, Addressee of Record Designation for Service of Official 
Correspondence.



Sec. 1218.520  What definitions apply to this subpart?

    Address of record is the address to which official correspondence is 
served.
    Addressee of record for service of official correspondence is the 
person or position to whom official correspondence is

[[Page 888]]

served, as specified on Form MMS-4444, or in the absence of such a form, 
as established in Sec. 1218.540(b)(2). The addressee of record in a 
part 1290, appeal will be the person or representative making the 
appeal.
    Official correspondence is all correspondence from ONRR or our 
delegates, served on companies related to matters such as: forms 
reporting, audit and compliance, enforcement notices, rental courtesy 
notices, and invoices.



Sec. 1218.540  How does ONRR serve official correspondence?

    ONRR will serve all Notices of Noncompliance or Civil Penalty 
following the procedures in part 1241. We will serve all other documents 
following the procedures in this section.
    (a) Method of service. ONRR will serve all official correspondence 
to the addressee of record by one of the following methods:
    (1) U.S. Postal Service mail;
    (2) Personal delivery made pursuant to the law of the State in which 
the service is effected; or
    (3) Private mailing service (e.g., United Parcel Service, or Federal 
Express), with signature and date upon delivery, acknowledging the 
addressee of record's receipt of the official correspondence document.
    (b) Selection of addressee of record information. (1) We will 
address official correspondence to the party shown on the most recently 
received Form MMS-4444 for the type of correspondence at issue. The 
company or reporting entity is responsible for notifying ONRR of any 
name or address changes on Form MMS-4444. The addressee of record in a 
part 1290, appeal will be the person or representative making the 
appeal.
    (2) If we do not receive addressee of record information from you on 
Form MMS-4444, we may use the individual name and address, position 
title, or department name and address in our database, based on previous 
formal or informal communications or correspondence for the type of 
official correspondence at issue. Alternately, we may obtain contact 
information from public records and send correspondence to:
    (i) The registered agent;
    (ii) Any corporate officer; or
    (iii) The addressee of record shown in the files of any State 
Secretary; Corporate Commission; Federal or state agency that keeps 
official records of business entities or corporations; or other 
appropriate public records for individuals, business entities, or 
corporations.
    (c) Dates of service. Except as provided in paragraph (d) of this 
section, ONRR considers official correspondence as served on the date 
that it is received at the address of record. A receipt, signed and 
dated by any person at that address, is evidence of service and of the 
date of service. If official correspondence is served in more than one 
manner and the dates differ, the date of the earliest service is 
used[smc1].
    (d) Constructive service. If we cannot make delivery to the 
addressee of record after making a reasonable effort, we deem official 
correspondence as constructively served 7 days after the date that we 
mail the document. This provision covers situations such as those where 
no delivery occurs because:
    (1) The addressee of record has moved without filing a forwarding 
address;
    (2) The forwarding order has expired;
    (3) Delivery was expressly refused; or
    (4) The document was unclaimed and the attempt to deliver is 
substantiated by either:
    (i) The U.S. Postal Service;
    (ii) A private mailing service, as described in this section; or
    (iii) The person who attempted to make delivery using some other 
method of service.



Sec. 1218.560  How do I submit Form MMS-4444?

    A copy of Form MMS-4444 and instructions may be obtained from ONRR. 
It will also be posted on the ONRR Web site. Submit the completed, 
signed form to the address designated on the Form MMS-4444 instructions.



Sec. 1218.580  When do I submit Form MMS-4444?

    Initially, you must submit Form MMS-4444 by November 29, 2006, and 
subsequently, within 2 weeks of any change of your address.

[[Page 889]]



PART 1219_DISTRIBUTION AND DISBURSEMENT OF ROYALTIES, RENTALS, AND BONUSES--

Table of Contents



Sec.
1219.100 Timing of payment to States.
1219.101 Receipts subject to an interest charge.
1219.102 Method of payment.
1219.103 Payments to Indian accounts.
1219.104 Explanation of payments to States and Indian tribes.
1219.105 Definitions.

    Authority: Section 104, Pub. L. 97-451, 96 Stat. 2451 (30 U.S.C. 
1714), Pub. L. 109-432, Div C, Title I, 120 Stat. 3000.

    Source: 49 FR 37347, Sept. 21, 1984, unless otherwise noted. 
Redesignated at 75 FR 61086, Oct. 4, 2010



Sec. 1219.100  Timing of payment to States.

    A State's share of mineral leasing revenues shall be paid to the 
State not later than the last business day of the month in which the 
U.S. Treasury issues a warrant authorizing the disbursement, except for 
any portion of such revenues which is under challenge and placed in a 
suspense account pending resolution of a dispute.



Sec. 1219.101  Receipts subject to an interest charge.

    (a) Subject to the availability of appropriations, the Office of 
Natural Resources Revenue (ONRR) shall pay the State its proportionate 
share of any interest charge for royalty and related monies that are 
placed in a suspense account pending resolution of matters which will 
allow distribution and disbursement. Such monies not disbursed by the 
last business day of the month following receipt by ONRR shall accrue 
interest until paid.
    (b) Upon resolution, the suspended monies found due in paragraph (a) 
of this section, plus interest, shall be disbursed to the State under 
the provisions of Sec. 1219.100.
    (c) Paragraph (a) of this section shall apply to revenues which 
cannot be disbursed to the State because the payor/lessee provided 
incorrect, inadequate, or incomplete information to ONRR which prevented 
ONRR from properly identifying the payment to the proper recipient.

[49 FR 37347, Sept. 21, 1984. Redesignated and amended at 75 FR 61086, 
Oct. 4, 2010.]



Sec. 1219.102  Method of payment.

    The ONRR shall disburse monies to a State either by Treasury check 
or by Electronic Funds Transfer (EFT). Should a State prefer to receive 
its payment by EFT, it should request this payment method in writing to 
the Office of Natural Resources Revenue, P.O. Box 5760, Denver, Colorado 
80217-5760.

[57 FR 41868, Sept. 14, 1992, as amended at 58 FR 64903, Dec. 10, 1993; 
67 FR 19112, Apr. 18, 2002. Redesignated and amended at 75 FR 61086, 
Oct. 4, 2010.]



Sec. 1219.103  Payments to Indian accounts.

    Mineral revenues received from Indian leases shall be transferred to 
the appropriate Indian accounts managed by the Bureau of Indian Affairs 
(BIA) for allotted and tribal revenues. These accounts are specifically 
designated Treasury accounts. Revenues shall be transferred to the 
Indian accounts at the earliest practicable date after such funds are 
received, but in no case later than the last business day of the month 
in which revenues are received by the ONRR.



Sec. 1219.104  Explanation of payments to States and Indian tribes.

    (a) Payments to States and BIA on behalf of Indian tribes or Indian 
allottees discussed in this part shall be described in Explanation of 
Payment reports prepared by the ONRR. These reports will be at the lease 
level and shall include a description of the type of payment being made, 
the period covered by the payment, the source of the payment, sales 
amounts upon which the payment is based, the royalty rate, and the unit 
value. Should any State or Indian tribe desire additional information 
pertaining to mineral revenue payments, the State or tribe may request 
this information from the ONRR.
    (b) The report shall be provided to: (1) States not later than the 
10th day of the month following the month in which ONRR disburses the 
State's share of royalties and related monies;

[[Page 890]]

(2) the BIA on behalf of tribes and Indian allottees not later than the 
10th day of the month following the month the funds are disbursed by 
ONRR.
    (c) Revenues that cannot be distributed to States, tribes, or Indian 
allottees because the payor/lessee provided incorrect, inadequate, or 
incomplete information, preventing ONRR from properly identifying the 
payment to the proper recipient, shall not be included in the reports 
until the problem is resolved.



Sec. 1219.105  Definitions.

    Terms used in this subpart shall have the same meaning as in 30 
U.S.C. 1702.



PART 1220_ACCOUNTING PROCEDURES FOR DETERMINING NET PROFIT SHARE PAYMENT FOR 

OUTER CONTINENTAL SHELF OIL AND GAS LEASES--Table of Contents



Sec.
1220.001 Purpose and scope.
1220.002 Definitions.
1220.003 Information collection.
1220.010 NPSL capital account.
1220.011 Schedule of allowable direct and allocable joint costs and 
          credits.
1220.012 Overhead allowance.
1220.013 Unallowable costs.
1220.014 Allocation of joint costs and credits.
1220.015 Pricing of materiel purchases, transfers, and dispositions.
1220.020 Calculation of the allowance for capital recovery.
1220.021 Determination of net profit share base.
1220.022 Calculation of net profit share payment.
1220.030 Maintenance of records.
1220.031 Reporting and payment requirements.
1220.032 Inventories.
1220.033 Audits.
1220.034 Redetermination and appeals.

    Authority: Sec. 205, Pub. L. 95-372, 92 Stat. 643 (43 U.S.C. 1337).

    Source: 45 FR 36800, May 30, 1980, unless otherwise noted. 
Redesignated at 48 FR 1182, Jan. 11, 1983, and further redesignated at 
48 FR 35642, Aug. 5, 1983, 75 FR 61087, Oct. 4, 2010.



Sec. 1220.001  Purpose and scope.

    (a) This part 1220 establishes accounting procedures for determining 
the net profit share base and calculating net profit share payments due 
the United States for the production of oil and gas from OCS leases.
    (b) The procedures established by this part 1220 apply to any OCS 
lease issued by the Department of the Interior under any bidding system 
established by Sec. 1260.110(a) of this title which has a net profit 
share component.

[45 FR 36800, May 30, 1980, as amended at 46 FR 29689, June 2, 1981. 
Redesignated at 48 FR 1182, Jan. 11, 1983. Amended at 48 FR 35642, Aug. 
5, 1983]



Sec. 1220.002  Definitions.

    For purposes of this part 220:
    Allowance for capital recovery means the amount calculated according 
to procedures specified in Sec. 1220.020. This amount allows a premium 
for risk initially undertaken by the lessee and a return on investment 
made during the capital recovery period. It is provided in lieu of 
interest on equipment and materiel charged to the NPSL capital account.
    Capital recovery period means the period of time that begins on the 
date of issuance of the NPSL and ends on the last day of the month 
during which the sooner of the following occurs:
    (1) The lessee completes the last well on the first platform 
specified in the development and production plan originally approved by 
the Bureau of Ocean Energy Management, Regulation, and Enforcement 
(BOEMRE), with any approved amendments thereto, and installation of 
wellhead equipment. In the event the last well is dry, then the capital 
recovery period shall be deemed to have ended with the determination 
that the last well is non-productive;
    (2) The balance in the NPSL capital account changes from a debit 
balance to a credit balance; or
    (3) The lessee, at his election, chooses to terminate the capital 
recovery period. A decision to terminate the capital recovery period 
prior to the events specified in paragraphs (a) (1) and (2) of this 
definition shall be communicated in writing to the Director and shall be 
irrevocable.
    Controllable materiel means materiel which at the time is so 
classified in the Materiel Classification Manual as most recently 
recommended by the Council

[[Page 891]]

of Petroleum Accountants Societies of North America.
    Cost means an expenditure or an accrual incurred by a lessee in 
conducting NPSL operations.
    Cost pool means a grouping of costs identified with more than one 
OCS lease, whether the leases are NPSLs or other types of leases.
    Credit means a payment, rebate, reimbursement to a lessee, or other 
reduction in cost or increase in revenue attributable to NPSL 
operations.
    Direct cost means any cost listed in Sec. 1220.011 that benefits 
only NPSL operations.
    Director means the Director of ONRR, Washington, DC, or his 
delegate.
    Field employee means an employee below a first level supervisor who 
is directly employed in the NPSL project area.
    First level supervisor means an employee whose primary function in 
NPSL operations is the direct supervision of other employees and/or 
contract labor directly employed on the NPSL project area in a field 
operating capacity.
    G & G means geological, geophysical, geochemical and other similar 
investigations carried out on the NPSL tract.
    Joint cost means any cost listed in Sec. 1220.011 that benefits 
NPSL operations and one or more other operations of the lessee or an 
outside party.
    Lessee means a person authorized by an OCS lease, or an approved 
assignment thereof, to develop and produce oil and gas, including all 
parties holding such authority by or through the lessee, and the person 
designated to conduct NPSL operations.
    Lessee's cost of allowed employee absence means the lessee's cost of 
holiday, vacation, sickness, disability benefits, jury duty and other 
customary excused allowances.
    Materiel means equipment, apparatus, and supplies.
    Net profit share base means the end of the month credit balance in 
the NPSL capital account determined pursuant to Sec. 1220.021. The net 
profit share base is the production revenue remaining after subtracting 
all allowable costs and adding all allowable credits (including 
production revenue) in accordance with the procedures established by 
this part 1220.
    Net profit share payment means the portion of the net profit share 
base payable to the United States.
    Net profit share rate means the percentage share of the net profit 
share base payable to the United States. The percentage share may be 
fixed in the notice of OCS lease sale or be the bid variable, depending 
upon the bidding system used, as established by Sec. 1260.110(a) of 
this title.
    NPSL means a net profit share lease, which is an OCS lease that 
provides for payment to the United States of a percentage share of the 
net profits for production of oil and gas from the tract. This 
percentage share may be fixed in the notice of OCS lease sale or be the 
bid variable, depending on the bidding system used, as established by 
Sec. 1260.110(a) of this title.
    NPSL operations means all activities subsequent to issuance of the 
NPSL necessary and proper for the exploration, development, operation, 
maintenance, and final abandonment of the NPSL property.
    NPSL project area means the NPSL tract, offshore facilities, and 
shore base facilities.
    NPSL property means the NPSL tract, and materiel and offshore 
facilities acquired for use in NPSL operations and that are installed 
and/or used on the NPSL tract.
    NPSL tract means a tract subject to an NPSL.
    OCS lease means a Federal lease for oil and gas issued under the 
OCSLA.
    OCS lease sale means the DOI proceeding by which leases for certain 
OCS tracts are offered for sale by competitive bidding and during which 
bids are received, announced, and recorded.
    Offshore facilities means platform and support systems located 
offshore that are necessary to conduct NPSL operations, e.g., oil and 
gas handling facilities, living quarters, offices, shops, cranes, 
electrical supply equipment and systems, fuel and water storage and 
piping, heliport, marine docking installations, communication 
facilities, and navigation aids.
    Outside party means any person who is not a lessee.

[[Page 892]]

    Person means person as defined in part 1260 of this title.
    Personal expenses means travel and other reasonable reimbursable 
expenses of lessee's employees.
    Production means all oil, gas, or other hydrocarbon products 
produced, removed, saved, or sold from the NPSL property. Gas and 
liquids of all kinds are included in production. Production includes the 
allocated share of production from a unit of which the NPSL is a part.
    Production revenue means the value of all production attributable to 
an NPSL property, which value is determined in accordance with Sec. 
1260.110(b) of this title.
    Railway receiving point or recognized barge terminal means the 
location that a vendor would use in determining the sale price to the 
lessee of new materiel to be delivered to the NPSL project area.
    Reliable supply store means a recognized source or common stock 
point for the particular materiel involved.
    Shore base facilities means onshore facilities necessary for NPSL 
operations, including:
    (1) Shore base support facilities, e.g., a receiving and trans-
shipment point for materiel, staging area for shuttling personnel to and 
from the NPSL tract, a communication, scheduling, and dispatching 
center; and
    (2) Shore base production facilities, e.g., pumps, separating 
facilities, gas plants, and tankage for production from the NPSL tract.
    Technical employees means those employees having special and 
specific engineering, geological or other professional skills, and whose 
primary function in NPSL operations is the handling and resolution of 
specific operating conditions and problems for the benefit of NPSL 
operations.
    Tract means land located on the OCS that is offered for lease 
through an OCS lease sale and that is identified by a leasing map or an 
official protraction diagram prepared by DOI.

[45 FR 36800, May 30, 1980, as amended at 46 FR 29689, June 2, 1981. 
Redesignated and amended at 48 FR 1182, Jan. 11, 1983. Redesignated at 
48 FR 35642, Aug. 5, 1983. Amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.003  Information collection.

    (a) The information collection requirements of this part have been 
approved by OMB under 44 U.S.C. 3501 et seq. and assigned OMB Clearance 
Number 1010-0073. The information will be used to determine all 
allowable direct and allocable joint costs incurred during the term of 
the lease, appropriate overhead allowances permitted on these costs 
pursuant to Sec. 1220.012, and allowances for capital recovery 
calculated pursuant to Sec. 1220.020. The information collection is 
mandatory in accordance with the Federal Oil and Gas Royalty Management 
Act of 1982, 30 U.S.C. 1701 et seq.
    (b) Public reporting burden is estimated to average 16 hours for 
each annual and monthly lease report, including time spent reviewing 
instructions, searching existing data sources, gathering and maintaining 
the data needed, and completing and reviewing the collection of 
information. Send comments regarding the burden estimate or any other 
aspect of this collection of information, including suggestions for 
reducing burden, to the Information Collection Clearance Officer, Office 
of Natural Resources Revenue, 281 Elden Street, Herndon, Virginia 22070; 
and to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, Paperwork Reduction Project 1010-0073, 
Washington, DC 20503.

[57 FR 41868, Sept. 14, 1992, as amended at 58 FR 64903, Dec. 10, 1993 
75 FR 61087, Oct. 4, 2010]



Sec. 1220.010  NPSL capital account.

    (a) For each NPSL tract, an NPSL capital account shall be 
established and maintained by the lessee for NPSL operations. The NPSL 
capital account shall include debit entries for all allowable direct and 
allocable joint costs incurred during the term of the lease, appropriate 
overhead allowances permitted on these costs pursuant to Sec. 1220.012, 
and allowances for capital recovery calculated pursuant to Sec. 
1220.020. The NPSL capital account shall be credited with production 
revenues attributable to the NPSL and any other credits arising from 
NPSL activities.

[[Page 893]]

    (b) The NPSL capital account shall be kept on an accrual basis.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.011  Schedule of allowable direct and allocable joint costs and 

credits.

    The costs and credits specified in paragraphs (a) through (p) of 
this section may be charged direct, or allocated to NPSL operations, as 
appropriate, in accordance with Sec. 1220.014.
    (a) Lease rental. The rent paid by the lessee for the NPSL tract is 
allowable.
    (b) Labor. (1)(i) Salaries and wages of lessee's field employees, 
first level supervisors and technical employees employed in the NPSL 
project area in NPSL operations are allowable if such costs are not 
charged under paragraph (g) of this section.
    (ii) Salaries and wages of technical employees within technical 
branches of the lessee's organization who are either temporarily or 
permanently assigned to, and directly employed in NPSL operations are 
allowable provided that such employees work ``full time'' on some 
particular aspect of NPSL operations or some specific technical problem. 
Excluded from this category are employees assigned a role in NPSL 
operations as a duty collateral with other duties that do not directly 
benefit NPSL operations.
    (iii) Salaries and wages of technical employees within technical 
branches of the lessee's organization who are assigned technical tasks 
directly related to NPSL operations may be allowable. Costs may be 
charged to the NPSL if supported by adequate time records showing the 
nature of the task and the hours spent on that task.
    (2) Lessee's cost of allowed employee absence paid to employees 
whose salaries and wages are chargeable to NPSL operations under 
paragraphs (b)(1) (i) and (ii) of this section are allowable.
    (3) Expenditures or contributions made pursuant to assessments 
imposed by governmental authority that are applicable to lessee's costs 
chargeable to NPSL operations under paragraphs (b)(1) (i) and (ii) and 
(b)(2) of this section are allowable.
    (4) Reasonable personal expenses, including allowable relocation 
costs of employees whose salaries and wages are chargeable to NPSL 
operations under paragraphs (b)(1) (i) and (ii) of this section and that 
are paid by the lessee or for which the employees are reimbursed under 
the lessee's normal practice are allowable except as limited by Sec. 
1220.013(g).
    (i) Allowable relocation costs include:
    (A) Travel expenses, including transportation, lodging, subsistence, 
and reasonable incidental expenses of the employee and members of his 
immediate family and transportation of his household and personal 
effects to the new location.
    (B) Other necessary and reasonable expenses normally incident to 
relocation, such as costs of cancelling an unexpired lease, 
disconnecting and reinstalling household applicances, and purchases of 
insurance against damages to or loss of personal property are allowable. 
Costs of cancelling an unexpired lease shall not exceed three times the 
monthly rental.
    (C) Closing costs (i.e., brokerage fees, legal fees, appraisal fees, 
etc.) for the sale of the employee's actual residence when notified of 
the transfer are allowable; and
    (D) Continuing costs of ownership of the vacant former actual 
residence being sold, such as continuing mortgage principal and interest 
payments, maintenance of building and grounds (exclusive of fixing-up 
expenses), utilities, taxes, property insurance, etc., after settlement 
date of lease or date of new permanent residence are allowable.
    (ii) The combined total of costs listed in paragraphs (b)(4)(i) (C) 
through (D) of this section shall not exceed 8 percent of the sales 
price of the property sold.
    (iii) Section 1220.013(g) specifies employee relocation expenses 
that are not allowable as a charge to NPSL operations.
    (5) Lessee's current costs of established plans for employee's group 
life insurance, hospitalization, pension, retirement, stock purchase, 
thrift, bonds, and other benefit plans of a like nature that are made 
available to all of lessee's employees on an equitable basis,

[[Page 894]]

applicable to lessee's labor cost chargeable to NPSL operations under 
paragraphs (b)(1) (i) and (ii) and (b)(2) of this section, are 
allowable. The amount of these charges shall be lessee's actual cost not 
to exceed 23 percent of the total charges under paragraphs (b)(1) (i) 
and (ii) and (b)(2) except that the Director may from time to time 
establish a different maximum percentage.
    (6) Charges for expenses incurred under paragraphs (b)(2) through 
(b)(5) of this section may be made to NPSL accounts on a ``when and as 
paid'' basis or by a percentage assessment method. If the percentage 
assessment method is used, it shall be based upon the lessee's actual 
cost experience expressed as a percentage of costs chargeable under 
paragraphs (b)(1) (i) and (ii) and (b)(2) of this section. Under either 
method the lessee's own cost of administering the plans and paying the 
salaries and benefits defined in this paragraph shall be excluded. In 
determining actual cost experience of an employee benefit plan, any 
dividend or refunds received that are applicable to insurance or annuity 
policies shall be used to reduce the cost of such policies.
    (c) Materiel. (1) Materiel purchased or furnished by a lessee as 
NPSL property shall be charged or credited at amounts specified in Sec. 
1220.015. The purchase and inventorying of materiel is subject to the 
conditions and provisions in Sec. 1220.032.
    (2) Charges to an NPSL account shall be made only for such materiel 
purchased or furnished as NPSL property as is reasonably practical and 
consistent with efficient and economical operations. The accumulation of 
surplus stocks shall be avoided.
    (3) Credit for salvaged or returned materiel shall be made to the 
NPSL capital account. When the amount originally charged qualifies for 
the allowance for capital recovery in Sec. 1220.020, the credit shall 
be calculated pursuant to Sec. 1220.021(a)(3).
    (d) Transportation. Transportation of employees and materiel 
necessary for NPSL operations to, from, and within the NPSL project 
area, are allowable, but subject to the following limitations:
    (1) If materiel is moved to the NPSL project area, no charge shall 
be made to NPSL operations for a distance greater than the distance from 
the nearest reliable supply store, recognized barge terminal, or railway 
receiving point where like materiel is normally available, unless agreed 
to by the Director.
    (2) If surplus materiel is moved from the NPSL project area, no 
charge shall be made to NPSL operations for a distance greater than the 
distance to the nearest reliable supply store, recognized barge 
terminal, or railway receiving point unless agreed to by the Director. 
No charge shall be made to NPSL operations for moving materiel to other 
properties owned by or under the control of a lessee, unless agreed to 
by the Director.
    (3) In the application of paragraphs (d)(1) and (d)(2) of this 
section, there shall be no equalization of actual gross trucking costs 
of $200 or less, excluding accessorial charges.
    (e) Contract services. Except when excluded by paragraph (f) of this 
section and/or Sec. 1220.013(c), the cost of services and utilities 
provided under contract by outside parties to the lessee and which 
constitute proper and necessary NPSL operations or support for NPSL 
operations, and rental charges paid to outside parties for the use of 
equipment used in the NPSL project area in support of NPSL operations, 
may be charged to NPSL operations subject to the following conditions 
and limitations:
    (1) Contract services (including professional consulting services 
and contract services of technical personnel) that are entirely 
performed in the NPSL project area and benefit exclusively NPSL 
operations may be charged at the rates specified in the contract.
    (2) Contract services (including professional consulting services 
and contract services of technical personnel) that are entirely 
performed in the NPSL project area and benefit the NPSL operations and 
operations on other tracts must be allocated among all tracts benefited 
and only that portion representing services benefiting the NPSL tract 
charged to NPSL operations.

[[Page 895]]

    (3) Contract services (including professional consulting services 
and contract services of technical personnel) that are performed at 
sites outside the NPSL project area may be charged to NPSL operations 
only if:
    (i) The contracted services charged to the NPSL operations benefit 
only the NPSL tract or support NPSL operations;
    (ii) The contract under which such services are provided deals 
exclusively with services benefiting the NPSL tract or NPSL operations, 
or the costs of the contract services which are applicable to the NPSL 
tract or NPSL operations are separately and specifically identified in 
the contract; and
    (iii) Services specified in the contract relate to the resolution of 
specific technical problems confronting NPSL operations, or specific 
engineering design problems related to equipment or facilities required 
for NPSL operations.
    (4) The cost of any contract service related to research and 
development is specifically excluded, as are contract services calling 
for feasibility studies not directly related to specific engineering 
design problems or alternatives for equipment and facilities required by 
NPSL operations.
    (f) Legal expenses. Expense of handling, investigating and settling 
litigation or claims, discharging of liens, payments of judgments and 
amounts paid for settlement of claims incurred in or resulting from NPSL 
operations, or necessary to protect or recover the NPSL property are 
allowable, except those costs listed in Sec. 1220.013(f) as 
unallowable. This includes the salaries and wages of lessee's legal 
staff and the expense of outside attorneys who are assigned to matters 
described in this paragraph if supported by adequate time records 
showing the nature of the matter, its direct relationship to NPSL 
operations, and the hours spent on the matter.
    (g) Rental of equipment and facilities furnished by lessee. (1)(i) 
The NPSL capital account shall be charged for the use of equipment and 
facilities owned by a lessee that are proper and necessary for NPSL 
operations, including shore base and offshore facilities and pipelines 
from the tract to shore base production facilities, and that are not 
NPSL property. Rental charges shall be made at rates based upon actual 
costs of acquisition, construction, and operation. Such rates may 
include labor, the cost of setting up and dismantling equipment, 
maintenance, repairs, other operating expenses, insurance, taxes, 
depreciation (calculated using a method consistent with generally 
accepted accounting principles, consistently applied) and a return on 
the remaining undepreciated basis not to exceed 8 percent per year, 
except that the Director may from time to time establish a different 
maximum percentage. Any cost of acquiring real property in excess of 
that reasonably required to support the facilities furnished for NPSL 
operations shall not be included in the costs used to establish these 
rates. Rates charged shall not exceed average commercial rates for 
equipment and facilities of similar nature and capability currently 
prevailing in the vicinity of the NPSL project area.
    (ii) The term ``equipment and facilities'' is used in the broad 
sense to include equipment that may be mobile or semimobile and also 
installations that may be semipermanent or permanent in nature. Such 
equipment and facilities listed below shall be charged on the basis 
indicated.

------------------------------------------------------------------------
           Equipment/facilities                    Basis of charge
------------------------------------------------------------------------
A. Mobile equipment:
  Aircraft................................  Hour.
  Automobiles.............................  Mile or hour.
  Trucks..................................  Mile or hour.
  Tractors................................  Hour.
  Bulldozers..............................  Hour.
  Mobile cranes...........................  Hour.
  Trailer-mounted test separators.........  Hour.
  Truck-mounted cement mixers.............  Hour.
  Boats...................................  Day or hour.
  House trailers..........................  Day.
B. Semimobile equipment:
  Drill rigs..............................  Foot or day.
  Workover rigs...........................  Hour.
  Pulling units...........................  Hour.
  Derricks................................  Day.
  Drilling tender.........................  Day.
  Barges..................................  Day.
C. Semipermanent installations:
  Skid-mounted separators.................  Day or volume.
  Skid-mounted compressors................  Day or volume.
D. Permanent installations:
  Compressor stations.....................  Volume.
  Saltwater disposal wells................  Volume or wells.
  Source water wells and supply systems...  Volume.
  Roads...................................  Wells.
  Production/drilling platform............  Volume or wells.

[[Page 896]]

 
  Canals..................................  Wells.
  Dock....................................  Wells.
  Oil storage and loading facilities......  Volume.
  Gathering systems and pipeline..........  Volume.
  ACT systems.............................  Volume.
  Laboratory services (excluding research   Hour or unit.
   work).
  Shore base production facilities........  Volume.
  Shore base support facilities...........  Wells.
E. Miscellaneous:
  Drill pipe..............................  Foot or day.
  Casing setting tools....................  Day.
  Well testing equipment..................  Day.
------------------------------------------------------------------------


Equipment and facilities that are not listed shall be charged on a basis 
consistent with the nature of the use.
    (2) In lieu of charges in paragraph (g)(1) of this section, the 
lessee may elect to use average commercial rates prevailing in the 
vicinity of the NPSL project area less 20 percent. For automotive 
equipment, the lessee may elect to use rates established by the 
Director. For other equipment for which no commercial rate exists, the 
lessee shall submit the basis for determining such costs to the Director 
for approval.
    (h) Damages and losses to NPSL property. All costs necessary for the 
repair or replacement of NPSL property made necessary because of damages 
or losses incurred by fire, flood, storm, theft, accident, or other 
causes not covered by insurance, except those resulting from lessee's 
negligence or willful misconduct may be charged to the NPSL capital 
account. Any settlement received from an insurance carrier should be 
credited to NPSL operations when received.
    (i) Taxes. All taxes, except income taxes, profit share payments, 
and taxes based upon income, that are assessed or levied upon or in 
connection with NPSL operations and which have been paid by the lessee 
are allowable. Allowed taxes shall include, but not be limited to, 
production, severance, excise, ad valorem, and mineral taxes.
    (j) Insurance. (1) Net premiums paid for insurance required to be 
carried for NPSL operations are allowable. For NPSL operations in which 
the lessee may act as self-insurer for Workmen's Compensation and 
Employer's Liability, the lessee may include the risk under its self-
insurance program in providing coverage under State and Federal laws and 
charge NPSL operations at lessee's cost not to exceed manual rates.
    (2) NPSL operations shall be credited for all reimbursements for 
costs of damage to NPSL property or personal injury. Reimbursements for 
damaged NPSL property shall be credited as follows:
    (i) If the damaged NPSL property is replaced or repaired, to the 
NPSL capital account charged for the cost of replacement or repair; or
    (ii) If the damaged NPSL property is not replaced or repaired, to 
the NPSL capital account except that if the cost of the property 
originally qualified for the allowance for capital recovery in Sec. 
1220.020, the credit shall be calculated pursuant to Sec. 
1220.021(a)(3).
    (k) Communications. Costs of leasing, acquiring, installing, 
operating, repairing and maintaining communication systems, including 
radio, microwave facilities, and computer production controls for the 
NPSL operations are allowable. If communication facilities systems 
serving the NPSL tract serve operations and/or facilities outside the 
NPSL project area, charges to NPSL operations shall be made as provided 
in paragraph (g) of this section or shall be allocated to NPSL 
operations in accordance with Sec. 1220.014.
    (l) Ecological and environmental. Costs incurred in the NPSL project 
area as a result of statutory regulations for archeological and 
geophysical surveys relative to identification and protection of 
cultural resources and other environmental or ecological surveys 
required by the Bureau of Land Management or other regulatory authority, 
may be charged to the NPSL capital account. Also, the costs to provide 
or have available pollution containment and removal equipment, including 
payments to organizations and/or funds which provide equipment and/or 
assistance in the event of oil spills or other environmental damage are 
allowable. The costs of actual control and cleanup of oil spills and 
resulting responsibilities required by applicable laws and regulations 
are allowable, except that a charge shall not be allowed for any such 
costs attributable to the lessee's negligence or willful misconduct.

[[Page 897]]

    (m) Dry or bottom hole contributions. The costs of dry or bottom 
hole contributions made to obtain information about the structure or 
other characteristics of the geology underlying the NPSL tract are 
allowable.
    (n) Abandonment costs. Actual costs incurred in the plugging of 
wells, dismantling of platforms and other facilities and in the 
restoration of the NPSL project area shall be charged to the NPSL 
capital account only when incurred (i.e., not on an accrual basis), 
except that costs incurred after the cessation of production shall not 
be charged to the NPSL capital account. Abandonment costs in excess of 
offsetting revenues shall not form the basis of any claim against the 
United States.
    (o) Other costs. Any other costs not covered in paragraphs (a)-(n) 
of this section and not disallowed by Sec. 1220.013 that are incurred 
by the lessee in the necessary and proper conduct of NPSL operation and 
are approved by the Director, are allowable. Approval of a plan of 
development and production for the NPSL tract by the Director shall be 
considered sufficient approval for these other costs provided they are 
separately identified in said plan of development and production. Such 
separate identification shall note the nature of these other costs and 
may include an estimate of their magnitude. Any cost approvals under 
this paragraph for which the specific amounts have not been itemized are 
presumed to be approved provided they fall within the limits for a 
prudent operator. Approval of costs under this paragraph shall be 
approval solely for the purposes of determining allowable costs and 
shall not preclude a subsequent adjustment at audit of the amount of 
such costs.
    (p) Other credits. Credit shall be given to the NPSL capital 
account, depending on when it is incurred, for NPSL property leased or 
used in non-NPSL operations, for the sale of information derived from 
test wells and G & G, and for any and all amounts earned or otherwise 
due lessee as a result of NPSL operations.

[45 FR 36800, May 30, 1980. Redesignated at 48 FR 1182, Jan. 11, 1983, 
and at 48 FR 35642, Aug. 5, 1983, as amended at 67 FR 19112, Apr. 18, 
2002; 75 FR 61087, Oct. 4, 2010]



Sec. 1220.012  Overhead allowance.

    (a) During the capital recovery period the overhead allowance shall 
be calculated on a percentage basis at the rate of 4 percent of 
allowable direct and allocable joint costs charged to the NPSL capital 
account, exclusive of costs specified in paragraph (c) of this section. 
This overhead allowance shall be debited to the NPSL capital account in 
accordance with Sec. 1220.021(b)(2).
    (b) For each month after the end of the capital recovery period, an 
overhead allowance shall be calculated on a percentage basis at the rate 
of 10 percent of allowable direct and allocable joint costs charged to 
the NPSL capital account, exclusive of costs specified in paragraph (c) 
of this section. This overhead allowance shall be debited to the NPSL 
capital account in accordance with Sec. 1220.021(c)(2).
    (c) Overhead shall not be charged on the value of:
    (1) Lease rental (Sec. 1220.011(a));
    (2) Contract services (Sec. 1220.011(e));
    (3) Taxes (Sec. 1220.011(i));
    (4) Re-injected hydrocarbons, originally produced from the NPSL 
tract, that are charged under Sec. 1220.011(c); and
    (5) Credits for materiel charged under Sec. 1220.011(c) that are 
salvaged, returned, or used for the benefit of non-NPSL operations.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.013  Unallowable costs.

    The following costs shall not be charged as direct or joint costs to 
NPSL operations:
    (a) Bonus payments to the United States;
    (b) Interest (except as permitted under Sec. 1220.011(g));
    (c) Depreciation, depletion, amortization, or any other charge for 
capital recovery for materiel charged to the NPSL capital account under 
Sec. 1220.011(c), except as explicitly provided by the allowance for 
capital recovery calculated according to Sec. 1220.020;
    (d) The cost of taking inventory;
    (e) Research and development costs;
    (f) The following legal expenses:
    (1) The costs of litigation against the Federal government;

[[Page 898]]

    (2) Fines or penalties levied by any Federal agency;
    (3) Settlement of claims or other litigation resulting from the 
lessee's violation of regulatory requirements or negligence; and
    (4) The cost of the lessee's legal staff or expense of outside 
attorneys, except as explicitly allowed under Sec. 1220.011(f);
    (g) The following employee relocation costs (whether incurred by the 
employee or the lessee):
    (1) Loss on the sale of a home;
    (2) Purchase price of a home in the new location;
    (3) Payments for employee income taxes incident to reimbursed 
relocation costs; and
    (4) Any relocation cost in connection with an employee move that is 
for the primary benefit of the lessee's non-NPSL operations;
    (h) The lessee's own cost of administering employee benefit plans;
    (i) The cost of acquiring or constructing shore base facilities and 
real property improvements that are charged to NPSL operations on a 
rental basis under Sec. 1220.011(g);
    (j) Rentals on any facilities, the investment costs of which have 
been charged either directly or as allocable joint costs, to the NPSL 
capital account; and
    (k) Pre-NPSL expenditures.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.014  Allocation of joint costs and credits.

    (a) Joint costs shall be grouped in cost pools for allocation to 
NPSL and non-NPSL operations in reasonable proportion to the beneficial 
or causal relationships which exist between a specific cost pool and the 
operations. That portion of a joint cost pool that may be allocated to 
NPSL operations is called an allocable joint cost.
    (b) The following allocation principles apply in allocating joint 
costs:
    (1) G & G. G & G shall be allocated on a line mile per tract basis.
    (2) Wages and salaries. Wages and salaries that are not charged as 
direct on the basis of time spent on a particular job shall be allocated 
on a reasonable and equitable basis.
    (3) Compensated personal absence, payroll taxes and personal 
expenses. These items shall be allocated on the same basis as wages and 
salaries.
    (4) Transportation costs. Transportation costs for employees that 
are not charged direct shall be allocated on the same basis as their 
wages and salaries.
    (c) Joint credits shall be allocated in the same manner as joint 
costs.
    (d) When the NPSL is made a part of a unit, the allowed costs shall 
be charged to the NPSL capital account on the basis specified in the 
unit operating agreement as approved by the Director. Revenues and other 
credits shall be made to the NPSL accounts on the same basis as 
specified in the approved operating agreement. Joint costs of an NPSL 
and a non-NPSL tract that are adjacent to one another and are on the 
same structure shall be allocated on a basis approved by the Director.



Sec. 1220.015  Pricing of materiel purchases, transfers, and dispositions.

    (a)(1) Purchased materiel. Except as provided in paragraph (a)(2)(i) 
of this section, materiel purchased for use in NPSL operations shall be 
charged to NPSL operations at the price paid, after deduction of any 
discounts received. Should any purchased materiel be defective or 
returned to a vendor for other reasons, the credit shall be allocated to 
NPSL operations when received by the lessee in accordance with Sec. 
1220.011(c)(3).
    (2) Transferred and disposal materiel. An item of materiel, which is 
acquired by the lessee for use in NPSL operations by means other than 
purchase or disposed of by any means, shall be priced according to this 
subparagraph:
    (i) Condition A (new) materiel. (A) Tubular goods, except line pipe, 
shall be priced at the current market price in effect on date of 
movement on a minimum carload or barge load weight basis, regardless of 
quantity transferred, equalized to the lowest published price ``free on 
board'' (f.o.b.) railway receiving point or recognized barge terminal 
nearest the NPSL tract where such materiel is normally available.
    (B) Line pipe. (1) Movement of less than 30,000 pounds shall be 
priced at

[[Page 899]]

the current price in effect at date of movement, as listed by a reliable 
supply store nearest the NPSL tract where such materiel is normally 
available.
    (2) Movement of 30,000 pounds or more shall be priced under the 
provisions for tubular goods pricing in paragraph (a)(2)(i)(A) of this 
section.
    (C) Other materiel shall be priced at the current price in effect at 
date of movement, as listed by a reliable supply store or f.o.b. railway 
receiving point nearest the NPSL tract where such materiel is normally 
available.
    (ii) Condition B (good used) materiel. Materiel in sound and 
serviceable condition and suitable for reuse without reconditioning:
    (A) Materiel transferred to the NPSL project area shall be priced at 
75 percent of current Condition A price.
    (B) Materiel transferred from the NPSL project area shall be priced:
    (1) At 75 percent of current Condition A price, if the materiel was 
originally charged to NPSL operations as Condition A materiel, or
    (2) At 65 percent of current Condition A price, if the materiel was 
originally charged to NPSL operations as Condition B materiel at 75 
percent of current Condition A price.
    (iii) Conditions C and D (other used) materiel--(A) Condition C. 
Materiel that is not in sound and serviceable condition and not suitable 
for its original function until after reconditioning shall be priced at 
50 percent of current Condition A price.
    (B) Condition D. Materiel no longer suitable for its original 
purposes but suitable for some other purpose shall be priced on a basis 
commensurate with its use and comparable with that of materiel normally 
used for such other purpose. If the materiel has no alternative use it 
should be priced at prevailing prices as scrap.
    (iv) Obsolete materiel. Materiel that is serviceable and usable for 
its original function and has a value less than Condition A, B, or C 
materiel may be valued at a price agreed to by the Director. Such price 
should be the equivalent of the value of the service rendered by such 
materiel.
    (b) Pricing conditions. (1) Loading and unloading costs shall be 
charged at a rate of 15 cents per hundred weight, or such other rate as 
may be set by the Director, on all tubular goods movements, in lieu of 
loading/unloading costs sustained, when the actual hauling costs of such 
tubular goods is equalized under provisions of Sec. 1220.011(d).
    (2) Materiel involving erection costs shall be charged at the 
applicable percentage of the current knocked-down price of new materiel.
    (c) When materiel subject to paragraphs (a)(2) (ii) and (iii) of 
this section is transferred, the cost of reconditioning shall be borne 
by the receiving party.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.020  Calculation of the allowance for capital recovery.

    (a) For purposes of this section, the cost base for the allowance 
for capital recovery in a particular month shall consist of the sum of:
    (1) All allowable direct and allocable joint costs chargeable to the 
NPSL capital account during the month less any costs specified in Sec. 
1220.012(c); plus
    (2) The value of contract services chargeable to the NPSL capital 
account during the month pursuant to Sec. 1220.011(e); plus
    (3) The capital recovery period overhead allowance, calculated in 
accordance with Sec. 1220.012(a), that is chargeable to the NPSL 
capital account for the month; less
    (4) Production revenues and other credits received during the month.
    (b) If the cost base for a month is greater than zero (that is, if 
the sum of the charges specified in paragraphs (a) (1) through (3) of 
this section exceeds the value of production revenues and other 
credits), the allowance for capital recovery shall be calculated by 
multiplying the cost base by the capital recovery factor, and shall be 
debited to the NPSL capital account as specified in Sec. 1220.021(b).
    (c) If the cost base for a month is less than zero, the allowance 
for capital recovery for the NPSL capital account shall be calculated by 
multiplying the resulting negative cost base by the capital recovery 
factor. The negative product of this calculation shall be debited

[[Page 900]]

to the NPSL capital account as specified in Sec. 1220.021(b).
    (d) No allowance for capital recovery shall be calculated on the 
charges or credits related to any time period after the end of the 
capital recovery period.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.021  Determination of net profit share base.

    (a) During each month of the lease term, the NPSL capital account 
shall be:
    (1) Debited with allowable direct and allocable joint costs;
    (2) Credited with an amount reflecting the production revenues for 
the month, calculated in accordance with Sec. 1260.110(b) of this 
title.
    (3) Credited with amounts properly credited back to the NPSL capital 
account as specified in Sec. 1220.011(p). Credits associated with 
charges to the NPSL capital account during the capital recovery period, 
however, shall first be increased by the value of the credit multiplied 
by the recovery factor, before crediting that sum to the NPSL capital 
account.
    (b) At the end of each month of the lease term during the capital 
recovery period:
    (1) The transactions specified in paragraph (a) of this section 
shall be made to the NPSL capital account.
    (2) The capital recovery period overhead allowance shall be 
calculated in accordance with Sec. 1220.012(a) and debited to the NPSL 
capital account.
    (3) The allowance for capital recovery shall be calculated in 
accordance with Sec. 1220.020 and the allowance debited (or the 
negative allowance debited, as appropriate) to the NPSL capital account. 
(A debit entry of a negative allowance for capital recovery shall have 
the same effect as a credit entry of the absolute value of the allowance 
for capital recovery.)
    (4) The balance in the NPSL capital account shall be calculated. If, 
as a result of the accounting transactions described in paragraphs (b) 
(1) through (3) of this section, there is a credit balance in the NPSL 
capital account, the capital recovery period will be considered 
terminated as of this month. The credit balance will be forwarded to the 
next month, which will be the first month for which a profit share 
payment is due.
    (c) At the end of each month of the lease term following the end of 
the capital recovery period:
    (1) The transaction specified in paragraph (a) of this section shall 
be made to the NPSL capital account.
    (2) An overhead allowance shall be calculated in accordance with 
Sec. 1220.012(b) and debited to the NPSL capital account.
    (3) The balance in the NPSL capital account shall be calculated.
    (d) If, as a result of the accounting transactions described in 
paragraph (c) of this section, there is a credit balance in the NPSL 
capital account, this credit balance is the net profit share base for 
that month. The opening debit and credit balances in the NPSL capital 
account for any month following a month in which there is a credit 
balance in the NPSL capital account (except as provided in paragraph 
(b)(4)) of this section shall be zero.
    (e) If, as a result of the accounting transactions described in 
paragraph (b) or (c) of this section, there is a debit balance in the 
NPSL capital account, this debit balance shall be the opening debit 
balance in the NPSL capital account for the following month.
    (f) Any credit balance in the NPSL capital account shall become the 
net profit share base as described in this section. Any debit balance in 
the NPSL capital account shall be maintained only insofar as necessary 
for the determination of profit share payments. Such debit balance shall 
not represent a claim against the United States.

[45 FR 36800, May 30, 1980. Redesignated at 48 FR 1182, Jan. 11, 1983, 
and at 48 FR 35642, Aug. 5, 1983, and amended at 55 FR 1210, Jan. 12, 
1990; 75 FR 61087, Oct. 4, 2010]



Sec. 1220.022  Calculation of net profit share payment.

    The net profit share payment shall be calculated by multiplying the 
net profit share base calculated in accordance with Sec. 1220.021 by 
the net profit share rate. The net profit share payment shall be paid to 
the United States in accordance with Sec. 1220.031.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]

[[Page 901]]



Sec. 1220.030  Maintenance of records.

    (a) Each lessee subject to this part 1220 shall establish and 
maintain such records as are necessary to determine for each NPSL:
    (1) The volume and disposition of all oil and gas production saved, 
removed or sold for each month;
    (2) The value of all oil and gas production saved, removed or sold 
for each month;
    (3) The amount and description of costs and credits to the NPSL 
capital account;
    (4) The amount and description of all costs of acquisition, 
construction, and operation of equipment and facilities furnished by the 
lessee and charged to the NPSL capital account under Sec. 1220.011(g). 
Such records shall include worksheets or other documents that indicate 
the method used to calculate the amount of each charge made under Sec. 
1220.011(g);
    (5) The cumulative balance of costs and credits to the NPSL capital 
account; and
    (6) The inventory of materiel.
    (b) The ledger cards showing the charges and credits to the NPSL 
capital account shall be maintained until thirty-six months after the 
cessation of NPSL operations by the lessee. All other documents, 
journals and records shall be maintained for thirty-six months from the 
due date or date of mailing of the statement of account on an NPSL, 
whichever comes later, except that nothing in these regulations shall 
limit the time of investigation or the need to produce records when 
prima facie evidence of fraud or willful misconduct is obtained with 
respect to the government's interest in the NPSL.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.031  Reporting and payment requirements.

    (a) Each lessee subject to this part shall file an annual report 
during the period from issuance of the NPSL until the first month in 
which production revenues are credited to the NPSL capital account. Such 
report shall list the costs incurred, including allowances applied, 
credits received, and the balance of the NPSL capital account. Not later 
than 60 days after the end of the first month in which production 
revenues are credited to the NPSL capital account, a final report 
relating to the period shall be filed.
    (b) Beginning with the first month in which production revenues are 
credited to the NPSL capital account, each lessee subject to this part 
1220 shall file a report for each NPSL, not later than 60 days following 
the end of each month, containing the following information for the 
month for which the report is filed:
    (1) The volume and disposition of all oil and gas production saved, 
removed or sold;
    (2) The production revenue;
    (3) The amount and description of all costs and credits to the NPSL 
capital account;
    (4) The balance of the NPSL capital account; and
    (5) The net profit share base and net profit share payment due the 
United States and the monthly profit share of the lessee.
    (c) Each lessee subject to this part 1220 shall submit, together 
with the report required by paragraph (b) of this section, any net 
profit share payment due the United States for the period covered by the 
report.
    (d) Each lessee subject to this part 1220 shall file a report not 
later than 90 days after each inventory is taken, reporting the 
controllable materiel on hand, acquired, transferred or used.
    (e) Each lessee subject to this part 1220 shall file a final report, 
not later than 60 days following the cessation of production, together 
with the appropriate net profit share payment, indicating the remaining 
balance and costs and credits to the NPSL capital account for the 
period.
    (f) Reports required by this section shall be filed with the 
Director, either separately or as part of the reports that are currently 
filed.
    (g) Interest shall be calculated at the prevailing rate or rates as 
published in the Bulletin to the Department of the Treasury Fiscal 
Requirement Manual, in effect for the period or periods over which the 
net profit share payment is owed, compounded monthly, on the amount of a 
net profit share payment, from the due date (60 days following

[[Page 902]]

the end of each month for which the payment was due) of a net profit 
share payment until such payment is received by the United States.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.032  Inventories.

    (a) The lessee is responsible for NPSL materiel and shall make 
proper and timely cost and credit notations for all materiel movements 
affecting NPSL property. The lessee shall provide only such materiel as 
may be required for immediate use or is consistent with practical, 
efficient, and economical operations. The accumulation of surplus stocks 
shall be avoided by proper materiel control, inventory and purchasing. 
The lessee shall make timely disposition of idle and surplus materiel 
through sale.
    (b) At reasonable intervals, but at least once every three years, 
inventories of controllable materiel shall be taken by the lessee. 
Written notice of intention to take inventory shall be given by the 
lessee at least 30 days before any inventory is to be taken so that the 
Director may be represented at the taking of inventory. Failure of the 
Director to be represented at an inventory shall bind the Director to 
accept the inventory taken by the lessee, except in the case of willful 
misrepresentation or fraud.
    (c) Inventory shall be valued with any generally accepted accounting 
method used by the lessee to value the same materiel for financial or 
income tax reporting purposes, provided that the method is consistently 
applied throughout the life of the materiel.
    (d) Reconciliation shall be made of a physical inventory with the 
NPSL capital account by the lessee, and a list of overages and shortages 
shall be available to the Director for audit as provided in Sec. 
1220.033. Inventory adjustments of controllable materiel shall be made 
by the lessee to the NPSL capital account for overages and shortages. 
Controllable materiel removed from physical inventory that has not been 
credited to NPSL operations under Sec. 1220.015(a)(2) shall be credited 
to NPSL operations at its original value, except that when the cost of 
the materiel originally qualified for the allowance for capital recovery 
in Sec. 1220.020, the credit shall be calculated pursuant to Sec. 
1220.021(a)(3).

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.033  Audits.

    (a) The accounts of an NPSL lessee or of a contractor of the lessee 
which are related to NPSL operations shall be subject to audit by DOI or 
its appointed agent. Where possible, the auditor for DOI shall 
coordinate audit efforts with other nonoperators, if any. DOI shall have 
the right to initiate an audit any time within thirty-six months of the 
due date of the monthly statement that is to be audited or the date that 
the statement was mailed, whichever is later, provided, however, that 
audits may not be conducted any more frequently than once every year 
except upon a showing of fraud or willful misrepresentation.
    (b)(1) When nonoperators of an NPSL lease call an audit in 
accordance with the terms of their operating agreement, the Director 
shall be notified of the audit call in the same manner as the operator 
is notified. DOI may elect to send an auditor with the audit team 
specified by the nonoperators in lieu of calling for a separate audit by 
DOI.
    (2) If DOI determines to call for an audit, DOI shall notify the 
lessee of its audit call and set a time and place for the audit. Such a 
notice shall be sent at least thirty days before the suggested time for 
the audit to allow the nonoperators to join in DOI's audit in lieu of 
calling for their own audit. The place for the audit will normally be 
the place where the lessee maintains its records pertaining to the NPSL 
lease. The lessee shall send copies of the notice to the nonoperators on 
the lease. The lessee shall use reasonable effort to notify all 
nonoperators, but failure to include one or more nonoperators in the 
notification shall not void the notice.
    (3) When DOI calls for an audit, DOI may suggest the date and time 
when the audit may commence. The estimated duration of the audit may be 
mentioned to the lessee as well as to the other nonoperators who may 
elect to supply and auditor for their own audit purposes. The lessee's 
office

[[Page 903]]

where the audit will be held may be named or, if not known, inquired 
about. If a visit to a field plant or field office is contemplated by 
the government auditor, such a field trip may be mentioned. If DOI 
expresses a desire to review a period on which the thirty-six month time 
limitation has expired, it is the lessee's prerogative to allow the 
review or to request that DOI adhere to the time limitation specified in 
these regulations.
    (c)(1) Exceptions to the accounting by the lessee, whether in favor 
of the government or the lessee, shall be noted in a report to the 
lessee. The lessee shall have 60 days from the mailing of a notice of 
exceptions to agree to the adjustments proposed by the DOI auditor or to 
object to the proposed adjustments. If the lessee accepts the proposed 
adjustments, the adjustment shall be booked in the month in which the 
lessee agrees to the adjustment, except where such adjustment would have 
resulted in a change in any net profit share payment due the United 
States. In such a case, there shall be a redetermination of the NPSL 
capital account pursuant to Sec. 1220.034.
    (2) If the lessee disagrees with the adjustment, the lessee shall 
have the right to appeal the adjustment to the Director.
    (d) Upon receipt of an agreement by the government auditor that 
there are no required audit adjustments, upon final determination with 
respect to any audit adjustment proposed by the government auditor, or 
upon the lapse of thirty-six months from the due date or date of mailing 
of the statement of account on an NPSL lease, whichever comes later, the 
books shall be closed for audit adjustment purposes, except upon a 
showing of fraud or willful misrepresentation.
    (e) Records required to be kept under Sec. 1220.030(a) shall be 
made available for inspection by any authorized agent of DOI at any time 
during normal business hours upon the request of the Director or other 
authorized official.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1220.034  Redetermination and appeals.

    (a) If, as a result of an inspection of records or an audit under 
Sec. 1220.033, the Director determines that there is an error in the 
NPSL capital account or an error in calculating the net profit share 
payment, whether in favor of the government or the lessee, the Director 
shall redetermine the net profit share base and recalculate the net 
profit share payment due the United States and notify the lessee of the 
recalculation.
    (b) The lessee shall pay any additional amount of net profit share 
payment owed plus interest, compounded monthly, from the date that the 
payment was due until the date it is actually paid. Interest shall be 
calculated at the prevailing rate or rates as published in the Bulletin 
to the Department of the Treasury Fiscal Requirements Manual, in effect 
for the period or periods over which the payment is owed.
    (c) If the recalculated profit share payment is less than the amount 
paid the United States, the lessee shall apply such overpayment to the 
next profit share payment.
    (d) Within 30 days after receiving notice of the recalculation as 
provided in paragraph (a) of this section, the lessee may appeal the 
decision of the Director in accordance with the appeals provision of 30 
CFR part 1290.

[45 FR 36800, May 30, 1980, as amended at 75 FR 61087, Oct. 4, 2010]



PART 1227_DELEGATION TO STATES--Table of Contents



                  Delegation of ONRR Royalty Functions

Sec.
1227.1 What is the purpose of this part?
1227.10 What is the authority for information collection?
1227.101 What royalty management functions may ONRR delegate to a State?
1227.102 What royalty management functions will ONRR not delegate?

                          Delegation Proposals

1227.103 What must a State's delegation proposal contain?
1227.104 What will ONRR do when it receives a State's delegation 
          proposal?

[[Page 904]]

                             Hearing Process

1227.105 What are the hearing procedures?

                           Delegation Process

1227.106 What statutory requirements must a State meet to receive a 
          delegation?
1227.107 When will the ONRR Director decide whether to approve a State's 
          delegation proposal?
1227.108 How will ONRR notify a State of its decision?
1227.109 What if the ONRR Director denies a State's delegation proposal?
1227.110 When and for how long are delegation agreements effective?

                          Existing Delegations

1227.111 Do existing delegation agreements remain in effect?

                              Compensation

1227.112 What compensation will a State receive to perform delegated 
          functions?

         States' Responsibilities To Perform Delegated Functions

1227.200 What are a State's general responsibilities if it accepts a 
          delegation?
1227.201 What standards must a State comply with for performing 
          delegated functions?
1227.300 What audit functions may a State perform?
1227.301 What are a State's responsibilities if it performs audits?
1227.400 What functions may a State perform in processing production 
          reports and royalty reports?
1227.401 What are a State's responsibilities if it processes production 
          reports or royalty reports?
1227.500 What functions may a State perform to ensure that reporters 
          correct erroneous report data?
1227.501 What are a State's responsibilities to ensure that reporters 
          correct erroneous data?
1227.600 What automated verification functions may a State perform?
1227.601 What are a State's responsibilities if it performs automated 
          verification?
1227.700 What enforcement documents may a State issue in support of its 
          delegated function?

                           Performance Review

1227.800 How will ONRR monitor a State's performance of delegated 
          functions?
1227.801 What if a State does not adequately perform a delegated 
          function?
1227.802 How will ONRR terminate a State's delegation agreement?
1227.803 What are the hearing procedures for terminating a State's 
          delegation agreement?
1227.804 How else may a State's delegation agreement terminate?
1227.805 How may a State obtain a new delegation agreement after 
          termination?

    Authority: 30 U.S.C. 1735; 30 U.S.C. 196; Pub L. 102-154.

    Source: 62 FR 43084, Aug. 12, 1997, unless otherwise noted 
Redesignated at 75 FR 61087, Oct. 4, 2010.

                  Delegation of ONRR Royalty Functions



Sec. 1227.1  What is the purpose of this part?

    This part provides procedures to delegate Federal royalty management 
functions to States under section 205 of the Federal Oil and Gas Royalty 
Management Act of 1982 (the Act), 30 U.S.C. 1735, as amended by the 
Federal Oil and Gas Royalty Simplification and Fairness Act of 1996, 
Pub. L. 104-185, August 13, 1996, as corrected by Pub. L. 104-200. This 
part also provides procedures to delegate only audit and investigation 
functions to States under Pub. L. 102-154 for solid mineral leases, 
geothermal leases and leases subject to section 8(g) of the Outer 
Continental Shelf Lands Act, 43 U.S.C. 1337(g). This part does not apply 
to any inspection or enforcement responsibilities of the Bureau of Land 
Management for onshore leases or the ONRR Offshore Minerals Management 
program for leases on the Outer Continental Shelf.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.10  What is the authority for information collection?

    (a) The information collection requirements contained in this part 
have been approved by Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. and assigned OMB Control Number 1010-0088. We will 
use the information collected to review and approve delegation proposals 
from States wishing to perform royalty management functions.
    (b) Public reporting burden is estimated as follows. ONRR estimates 
400 annual burden hours per function for each State performing the 
delegated functions. The Federal Government will reimburse some of these 
costs as provided by statute. However, States

[[Page 905]]

could incur additional start-up costs, such as purchasing equipment 
necessary to perform a delegated function, that may not be reimbursable. 
ONRR estimates that, if applicable, each payor or reporter would spend 
50 burden hours annually coordinating their interactions and 
communications among the several States and with ONRR. Send comments 
regarding this burden estimate or any other aspect of this collection of 
information, including suggestions for reducing burden, to the 
Information Collection Clearance Officer, Bureau of Ocean Energy 
Management, Regulation, and Enforcement, 381 Elden Street, Herndon, VA 
20107; and to the Office of Information and Regulatory Affairs, Office 
of Management and Budget, Attention: Desk Officer for the Interior 
Department, OMB Control Number 1010-0088, 725 17th Street, NW., 
Washington, DC 20503.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.101  What royalty management functions may ONRR delegate to a State?

    (a) If there are oil and gas leases subject to the Act on Federal 
lands within your State, ONRR may delegate the following royalty 
management functions for all such Federal oil and gas leases to you 
under this part:
    (1) Receiving and processing production or royalty reports;
    (2) Correcting erroneous report data; and
    (3) Performing automated verification.
    (b) If there are oil and gas leases subject to the Act on Federal 
lands within your State, ONRR may delegate the following royalty 
management functions for some or all of the Federal oil and gas leases 
to you under this part:
    (1) Conducting audits and investigations; and
    (2) Issuing demands, subpoenas, and orders to perform restructured 
accounting, including related notices to lessees or their designees, and 
entering into tolling agreements under section 115(d)(1) of the Act, 30 
U.S.C. 1725(d)(1).
    (c) If there are oil and gas leases offshore of your State subject 
to section 8(g) of the Outer Continental Shelf Lands Act, 43 U.S.C. 1337 
(g), or solid mineral leases or geothermal leases on Federal lands 
within your State, ONRR may delegate authority to conduct audits and 
investigations for some or all such Federal leases.

[64 FR 36784, July 8, 1999, as amended at 75 FR 61087, Oct. 4, 2010]]



Sec. 1227.102  What royalty management functions will ONRR not delegate?

    This section lists the principal royalty management functions that 
ONRR will not delegate to a State. ONRR will not delegate to a State the 
following functions:
    (a) ONRR must collect all moneys received from sales, bonuses, 
rentals, royalties, civil penalties, assessments and interest. ONRR also 
must collect any moneys a lessee or its designee pays because of audits 
or other actions of a delegated State;
    (b) ONRR must compare all cash and other payments it receives with 
payments shown on royalty reports or other documents, such as bills, to 
reconcile payor accounts. ONRR also must disburse all appropriate moneys 
to States and other revenue recipients, including refunds and interest 
owed to lessees and their designees;
    (c) The Department of the Interior will receive, process, and decide 
all administrative appeals from demands or other orders issued to 
lessees, their designees, or any other person, including demands or 
orders a delegated State issues;
    (d) Only ONRR may take enforcement actions other than issuing 
demands, subpoenas and orders to perform restructured accounting. ONRR 
or the appropriate Federal agency will issue notices of non-compliance 
and civil penalties, collect debts, write off delinquent debts, pursue 
litigation, enforce subpoenas, and manage any alternative dispute 
resolution. ONRR will conduct, coordinate and approve any settlement or 
other compromise of an obligation that a lessee or its designee owes;
    (e) ONRR will decide all valuation policies, including issuing 
valuation regulations, determinations, and guidelines, and interpreting 
valuation regulations; and

[[Page 906]]

    (f) ONRR may reserve additional authorities and responsibilities not 
included in paragraphs (a) through (f) of this section.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]

                          Delegation Proposals



Sec. 1227.103  What must a State's delegation proposal contain?

    If you want ONRR to delegate royalty management functions to you, 
then you must submit a delegation proposal to the Director for Office of 
Natural Resources Revenue. ONRR will provide you with technical 
assistance and information to help you prepare your delegation proposal. 
Your proposal must contain the following minimum information:
    (a) The name and title of the State official authorized to submit 
the delegation proposal and execute the delegation agreement;
    (b) The name, address, and telephone number of the State contact for 
the proposal;
    (c) A copy of the legislation, State Attorney General opinion or 
other document that:
    (1) States which State entity or entities are responsible for 
performing delegated functions, and if more than one entity is delegated 
such responsibility, the position of the highest ranking State official 
having ultimate authority over the collection of royalties from leases 
on Federal lands within the State;
    (2) Demonstrates the State's authority to:
    (i) Accept a delegation from ONRR; and
    (ii) Receive State or Federal appropriations to perform delegated 
functions;
    (d) The date you propose to begin performing delegated functions;
    (e) A detailed statement of the delegable functions that you propose 
to perform. For each function, describe the resources available in your 
State to perform each function, the procedures you will use to perform 
each function, and how you will assure that you will meet all Federal 
laws, lease terms, regulations and relevant performance standards. As 
evidence that you have or will have the resources to perform each 
delegable function, provide the following information:
    (1) A description of the personnel you have available to perform 
delegated functions, including:
    (i) How many persons you will assign full-time and part-time to each 
delegated function;
    (ii) The technical qualifications of the key personnel you will 
assign to each function, including academic field and degree, 
professional credentials, and quality and amount of experience with 
similar functions; and
    (iii) Whether these persons are currently State employees. If not, 
explain how you propose to hire these persons or obtain their services, 
and when you expect to have those persons available to perform delegated 
functions;
    (2) A description of the facilities you will use to perform 
delegated functions, including:
    (i) Whether you currently have the facilities in which you will 
physically locate the personnel and equipment you will need to perform 
the functions you propose to assume. If not, how you propose to acquire 
such facilities, and when you expect to have such facilities available; 
and
    (ii) How much office space is available;
    (3) Describe the equipment you will use to perform delegated 
functions, including:
    (i) Hardware and software you will use to perform each delegated 
function, including equipment for:
    (A) Document processing, including compatibility with ONRR automated 
systems, electronic commerce capabilities, and data storage 
capabilities;
    (B) Accessing reference data;
    (C) Contacting production or royalty reporters;
    (D) Issuing demands;
    (E) Maintaining accounting records;
    (F) Performing automated verification;
    (G) Maintaining security of confidential and proprietary 
information; and
    (H) Providing data to other Federal agencies;
    (ii) Whether you currently have the equipment you will need to 
perform the functions you propose to assume. If not, how you propose to 
acquire such

[[Page 907]]

equipment and when you expect to have such equipment available;
    (f) Your estimates of the costs to fund the following resources 
necessary to perform the delegation:
    (1) Personnel, including hiring, employee salaries and benefits, 
travel and training;
    (2) Facilities, including acquisition, upgrades, operation, and 
maintenance; and
    (3) Equipment, including acquisition, operation, and maintenance;
    (g) Your plans to fund the resources under paragraph (f) of this 
section, including any items you will ask ONRR to fund under the 
delegation agreement;
    (h) A statement identifying any areas where State law, including 
State appropriation law, may limit your ability to perform delegated 
functions, and an explanation of how you propose to remove any such 
limitation;
    (i) A statement that in accordance with section 203 of the Act (30 
U.S.C. 1733) persons who have access to information received under 
delegated functions are subject to the same provisions of law regarding 
confidentiality and disclosure of that information as Federal employees. 
Applicable laws include the Freedom of Information Act (FOIA), the Trade 
Secrets Act, and relevant Executive Orders. In addition, your statement 
must acknowledge that all documents produced, received, and maintained 
as part of any delegation functions are agency records for purposes of 
FOIA. Therefore, persons who have access to information received under 
delegated functions may not use such information or provide such 
information to any other person, including State personnel, for purposes 
other than performing delegated functions. However, this limitation does 
not apply if the person submitting the information consents in writing 
to its use for other State purposes.

[62 FR 43084, Aug. 12, 1997, as amended at 67 FR 19112, Apr. 18, 2002; 
75 FR 61087, Oct. 4, 2010]



Sec. 1227.104  What will ONRR do when it receives a State's delegation 

proposal?

    When ONRR receives your delegation proposal, it will record the 
receipt date. ONRR will notify you in writing within 15 business days 
whether your proposal is complete. If it is not complete, ONRR will 
identify any missing items Sec. 1227.103 requires. Once you submit all 
required information, ONRR will notify you of the date your application 
is complete.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]

                             Hearing Process



Sec. 1227.105  What are the hearing procedures?

    After ONRR notifies you that your delegation proposal is complete, 
ONRR will schedule a hearing on your proposal, if ONRR determines a 
hearing is appropriate, as follows:
    (a) The ONRR Director will appoint a hearing official to conduct one 
or more public hearings for fact finding regarding your ability to 
assume the delegated functions requested. The hearing official will not 
decide whether to approve your delegation request;
    (b) The hearing official will contact you about scheduling a hearing 
date and location;
    (c) The ONRR will publish notice of the hearing in the Federal 
Register and other appropriate media within your State;
    (d) ONRR will publish notice of the proposal in the Federal 
Register. ONRR will also post the proposal on the ONRR Website, and upon 
request, ONRR will send a copy of the delegation proposal to the trade 
associations to distribute to their members, as necessary;
    (e) At the hearing, you will have an opportunity to present 
testimony and written information in support of your proposal;
    (f) Other persons may attend the hearing and may present testimony 
and written information for the record;
    (g) ONRR will record the hearing;
    (h) ONRR will maintain a record of all documents related to the 
proposal process;
    (i) After the hearing, ONRR may require you to submit additional 
information in support of your delegation proposal.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]

[[Page 908]]

                           Delegation Process



Sec. 1227.106  What statutory requirements must a State meet to receive a 

delegation?

    The ONRR Director will decide whether to approve your delegation 
request and will ask the Secretary of the Interior to concur in the 
decision. That decision is solely within the ONRR Director's and the 
Secretary's discretion. The ONRR Director's decision, which the 
Secretary concurs in, is the final decision for the Department of the 
Interior. The ONRR Director may approve a State's request for delegation 
only if, based upon the State's delegation proposal and the hearing 
record, the ONRR Director finds that:
    (a) It is likely that the State will provide adequate resources to 
achieve the purposes of the Act;
    (b) The State has demonstrated that it will effectively and 
faithfully administer the ONRR regulations under the Act in accordance 
with subsections (c) and (d) of section 205 of the Act;
    (c) Such delegation will not create an unreasonable burden on any 
lessee;
    (d) The State agrees to adopt standardized reporting procedures ONRR 
prescribes for royalty and production accounting purposes, unless the 
State and all affected parties (including ONRR) otherwise agree;
    (e) The State agrees to follow and adhere to regulations and 
guidelines ONRR issues under the mineral leasing laws regarding 
valuation of production; and
    (f) Where necessary for a State to carry out and enforce a delegated 
activity, the State agrees to enact such laws and promulgate such 
regulations as are consistent with relevant Federal laws and 
regulations.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.107  When will the ONRR Director decide whether to approve a State's 

delegation proposal?

    The ONRR Director will decide whether to approve your delegation 
proposal within 90 days after your delegation proposal is considered 
complete under Sec. 1227.104. ONRR may extend the 90-day period with 
your written consent.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.108  How will ONRR notify a State of its decision?

    ONRR will notify you in writing of its decision on your delegation 
proposal. If ONRR approves your delegation proposal, then ONRR will hold 
discussions with you to develop a delegation agreement detailing the 
functions that you will perform, the standards and requirements you must 
comply with to perform those functions, and any required transition 
period.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.109  What if the ONRR Director denies a State's delegation proposal?

    If the ONRR Director denies your delegation proposal, ONRR will 
state the reasons for denial. ONRR also will inform you in writing of 
the conditions you must meet to receive approval. You may submit a new 
delegation proposal at any time following a denial.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.110  When and for how long are delegation agreements effective?

    (a) Delegation agreements are effective for 3 years from the date 
the ONRR Director signs the delegation agreement. However, during the 
development of the State's delegation proposal under Sec. 1227.108 of 
this part, ONRR, the delegated State, and any other affected person will 
determine an appropriate transition period for lessees and their 
designees to modify their systems to comply with any new requirements 
under a delegation agreement. ONRR will publish notice of the effective 
date of a State's delegation agreement in the Federal Register and that 
notice will inform lessees and their designees of any transition period. 
ONRR also will post the proposals on the ONRR Website at www.ONRR.gov, 
and upon request, will send a copy of the delegation proposals to trade 
associations to distribute to their members.

[[Page 909]]

    (b) You may ask ONRR to renew the delegation for an additional 3 
years no less than 6 months before your 3-year delegation agreement 
expires. You must submit your renewal request to the Director for Office 
of Natural Resources Revenue as follows:
    (1) If you do not want to change the terms of your delegation 
agreement for the renewal period, you need only ask to extend your 
existing agreement for the 3-year renewal period. ONRR will not schedule 
a hearing unless you request one;
    (2) If you want to change the terms of your delegation agreement for 
the renewal period, you must submit a new delegation proposal under this 
part.
    (c) The ONRR Director may approve your renewal request only if ONRR 
determines that you are meeting the requirements of the applicable 
standards and regulations. If the ONRR Director denies your renewal 
request, ONRR will state the reasons for denial. ONRR also will inform 
you in writing of the conditions you must meet to receive approval. You 
may submit a new renewal request any time after denial.
    (d) After the 3-year renewal period for your delegation agreement 
ends, if you wish to continue performing one or more delegated 
functions, you must request a new delegation agreement from ONRR under 
this part. ONRR will schedule a hearing on your request, if ONRR 
determines a hearing is appropriate. As part of the decision whether to 
approve your request for a new delegation, the ONRR Director will 
consider whether you are meeting the requirements of the applicable 
standards and regulations under your existing delegation agreement.
    (e) If you do not request a hearing under paragraphs (b)(1) or (d) 
of this section, any other affected person may submit a written request 
for a hearing under those paragraphs to the ONRR Associate Director for 
Minerals Revenue Management.

[62 FR 43084, Aug. 12, 1997, as amended at 67 FR 19112, Apr. 18, 2002; 
75 FR 61087, Oct. 4, 2010]

                          Existing Delegations



Sec. 1227.111  Do existing delegation agreements remain in effect?

    This section explains your options if you have a delegation 
agreement in effect on the effective date of this regulation.
    (a) If you do not want to perform any royalty management functions 
in addition to those authorized under your existing agreement, you may 
continue your existing agreement until its expiration date. Before the 
agreement expires, if you wish to continue to perform one or more of the 
delegated functions you performed under the expired agreement, you must 
request a new delegation agreement meeting the requirements of this part 
and the applicable standards.
    (b) If you want to perform royalty management functions in addition 
to those authorized under your existing agreement, you must request a 
new delegation agreement under this part.
    (c) ONRR may extend any delegation agreement in effect on the 
effective date of this regulation for up to 3 years beyond the date it 
is due to expire.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]

                              Compensation



Sec. 1227.112  What compensation will a State receive to perform delegated 

functions?

    You will receive compensation for your costs to perform each 
delegated function subject to the following conditions:
    (a) Compensation for costs is subject to Congressional 
appropriations;
    (b) Compensation may not exceed the reasonably anticipated 
expenditures that ONRR would incur to perform the same function;
    (c) The cost for which you request compensation must be directly 
related to your performance of a delegated function and necessary for 
your performance of that delegated function;
    (d) At a minimum, you must provide vouchers detailing your 
expenditures quarterly during the fiscal year. However, you may agree to 
provide vouchers on a monthly basis in your delegation agreement;

[[Page 910]]

    (e) You must maintain adequate books and records to support your 
vouchers;
    (f) ONRR will pay you quarterly or monthly during the fiscal year as 
stated in your delegation agreement; and
    (g) ONRR may withhold compensation to you for your failure to 
properly perform any delegated function as provided in section 227.801 
of this part.

         States' Responsibilities To Perform Delegated Functions

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.200  What are a State's general responsibilities if it accepts a 

delegation?

    For each delegated function you perform, you must:
    (a) Operate in compliance with all Federal laws, regulations, and 
Secretarial and ONRR determinations and orders relating to calculating, 
reporting, and paying mineral royalties and other revenues. You must 
seek information or guidance from ONRR regarding new, complex, or unique 
issues. If ONRR determines that written guidance or interpretation is 
appropriate, ONRR will provide the guidance or interpretation in writing 
to you and you must follow the interpretation or guidance given;
    (b) Comply with Generally Accepted Accounting Principles (GAAP). You 
must:
    (1) Provide complete disclosure of financial results of activities;
    (2) Maintain correct and accurate records of all mineral-related 
transactions and accounts;
    (3) Maintain effective controls and accountability;
    (4) Maintain a system of accounts that includes a comprehensive 
audit trail so that all entries may be traced to one or more source 
documents; and
    (5) Maintain adequate royalty and production information for royalty 
management purposes;
    (c) Assist ONRR in meeting the requirements of the Government 
Performance and Results Act (GPRA) as well as assisting in developing 
and endeavoring to comply with the ONRR Strategic Plan and Performance 
Measurements;
    (d) Maintain all records you obtain or create under your delegated 
function, such as royalty reports, production reports, and other related 
information. You must maintain such records in a safe, secure manner, 
including taking appropriate measures for protecting confidential and 
proprietary information and assisting ONRR in responding to Freedom of 
Information Act requests when necessary. You must maintain such records 
for at least 7 years;
    (e) Provide reports to ONRR about your activities under your 
delegated functions. ONRR will specify in your delegation agreement what 
reports you must submit and how often you must submit them. At a 
minimum, you must provide periodic statistical reports to ONRR 
summarizing the activities you carried out, such as:
    (1) Production and royalty reports processed;
    (2) Erroneous reports corrected;
    (3) Results of automated verification findings;
    (4) Number of audits performed; and
    (5) Enforcement documents issued.
    (f) Assist ONRR in maintaining adequate reference, royalty, and 
production databases as provided in the Standards issued under Sec. 
1227.201 of this part and the delegation agreement;
    (g) Develop annual work plans that:
    (1) Specify the work you will perform for each delegated function; 
and
    (2) Identify the resources you will commit to perform each delegated 
function;
    (h) Help ONRR respond to requests for information from other Federal 
agencies, Congress, and the public;
    (i) Cooperate with ONRR's monitoring of your delegated functions; 
and
    (j) Comply with the Standards as required under Sec. 1227.201 of 
this part.



Sec. 1227.201  What standards must a State comply with for performing 

delegated functions?

    (a) If ONRR delegates royalty management functions to you, you must 
comply with the Standards. The Standards explain how you must carry out 
the activities under each of the delegable functions.

[[Page 911]]

    (b) Your delegation agreement may include additional standards 
specifically applicable to the functions delegated to you.
    (c) Failure to comply with your delegation agreement, the Standards, 
or any of the specific standards and requirements in the delegation 
agreement, is grounds for termination of all or part of your delegation 
agreement, or other actions as provided under Sec. Sec. 1227.801 and 
227.802.
    (d) ONRR may revise the Standards and will provide notice of those 
changes in the Federal Register. You must comply with any changes to the 
Standards.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.300  What audit functions may a State perform?

    An audit consists of an examination of records to verify that 
royalty reports and payments accurately reflect actual production, 
sales, revenues and costs, and compliance with Federal statutes, 
regulations, lease terms, and ONRR policy determinations.
    (a) If you request delegation of audit functions, you must perform 
at least the following:
    (1) Submitting requests for records;
    (2) Examining royalty and production reports;
    (3) Examining lessee production and sales records, including 
contracts, payments, invoices, and transportation and processing costs 
to substantiate production and royalty reporting;
    (4) Providing assistance to ONRR for appealed demands or orders, 
including preparing field reports, performing remanded actions, 
modifying orders, and providing oral and written briefing and testimony 
as expert witnesses.
    (b) If necessary for a particular audit, you may also perform any of 
the following:
    (1) Issuing engagement letters;
    (2) Arranging for entrance conferences;
    (3) Scheduling site visits; and
    (4) Issuing record releases and audit closure letters; and
    (5) Holding closeout conferences.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.301  What are a State's responsibilities if it performs audits?

    If you perform audits you must:
    (a) Comply with the ONRR Audit Procedures Manual and the Government 
Auditing Standards issued by the Comptroller General of the United 
States;
    (b) Follow the ONRR Annual Audit Work Plan and 5-year Audit 
Strategy, which ONRR will develop in consultation with States having 
delegated audit authority;
    (c) Agree to undertake special audit initiatives ONRR identifies 
targeting specific royalty issues, such as valuation or volume 
determinations;
    (d) Prepare, construct, or compile audit work papers under the 
appropriate procedures, manuals, and guidelines;
    (e) Prepare and submit ONRR Audit Work Plans. You may modify your 
Audit Work Plans with ONRR approval; and
    (f) Comply with procedures for appealed demands or orders, including 
meeting timeframes, supplying information, and using the appropriate 
format.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.400  What functions may a State perform in processing production 

reports or royalty reports?

    Production reporters or royalty reporters provide production, sales, 
and royalty information on mineral production from leases that must be 
collected, analyzed, and corrected.
    (a) If you request delegation of either production report or royalty 
report processing functions, you must perform at least the following:
    (1) Receiving, identifying, and date stamping production reports or 
royalty reports;
    (2) Processing production or royalty data to allow entry into a data 
base;
    (3) Creating copies of reports by means such as electronic imaging;
    (4) Timely transmitting production report or royalty report data to 
ONRR and other affected Federal agencies as provided in your delegation 
agreement and the Standards;
    (5) Providing training and assistance to production reporters or 
royalty reporters;

[[Page 912]]

    (6) Providing production data or royalty data to ONRR and other 
affected Federal agencies; and
    (7) Providing assistance to ONRR for appealed demands or orders, 
including meeting timeframes, supplying information, using the 
appropriate format, performing remanded actions, modifying orders, and 
providing oral and written briefing and testimony as expert witnesses.
    (b) If you request delegation of either production report or royalty 
report processing functions, or both, you may perform the following 
functions:
    (1) Granting exceptions from reporting and payment requirements for 
marginal properties; and
    (2) Approving alternative royalty and payment requirements for unit 
agreements and communitization agreements.
    (c) You must provide ONRR with a copy of any exceptions from 
reporting and payment requirements for marginal properties and any 
alternative royalty and payment requirements for unit agreements and 
communitization agreements you approve.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.401  What are a State's responsibilities if it processes production 

reports or royalty reports?

    In processing production reports or royalty reports you must:
    (a) Process reports accurately and timely as provided in the 
Standards and your delegation agreement;
    (b) Identify and resolve fatal errors to use in subsequent error 
correction that the State or ONRR performs;
    (c) Accept multiple forms of electronic media from reporters, as 
ONRR specifies;
    (d) Timely transmit required production or royalty data to ONRR and 
other affected Federal agencies;
    (e) Access well, lease, agreement, and reporter reference data from 
ONRR and provide updated information to ONRR;
    (f) For production reports, maintain adequate system software edits 
to ensure compliance with the provisions of 30 CFR part 1210--Forms and 
Reports, the ONRR Minerals Production Reporter Handbook, any interagency 
memorandum of understanding to which ONRR is a party, and the Standards;
    (g) For royalty reports, maintain adequate system software edits to 
ensure compliance with the provisions of 30 CFR part 1218, the Oil and 
Gas Payor Handbook, Volume II, ``Dear Payor'' letters, and the 
Standards; and
    (h) Comply with the procedures for appealed demands or orders, 
including meeting timeframes, supplying information, and using the 
appropriate format.

[62 FR 43084, Aug. 12, 1997, as amended at 67 FR 19112, Apr. 18, 2002; 
73 FR 15898, Mar. 26, 2008; 75 FR 61087, Oct. 4, 2010]



Sec. 1227.500  What functions may a State perform to ensure that reporters 

correct erroneous report data?

    Production data and royalty data must be edited to ensure that what 
is reported is correct, that disbursement is made to the proper 
recipient, and that correct data are used for other functions, such as 
automated verification and audits. If you request delegation of error 
correction functions for production reports or royalty reports, or both, 
you must perform at least the following:
    (a) Correcting all fatal errors and assigning appropriate 
confirmation indicators;
    (b) Verifying whether production reports are missing;
    (c) Contacting production reporters or royalty reporters about 
missing reports and resolving exceptions;
    (d) Documenting all corrections made, including providing production 
reporters or royalty reporters with confirmation reports of any changes;
    (e) Providing training and assistance to production reporters or 
royalty reporters;
    (f) Issuing notices, orders to report, and bills as needed, 
including, but not limited to, imposing assessments on a person who 
chronically submits erroneous reports; and
    (g) Providing assistance to ONRR for appealed demands or orders, 
including preparing field reports, performing remanded actions, 
modifying orders, and providing oral and written briefing and testimony 
as expert witnesses.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]

[[Page 913]]



Sec. 1227.501  What are a State's responsibilities to ensure that reporters 

correct erroneous data?

    To ensure the correction of erroneous data, you must:
    (a) Ensure compliance with the provisions of 30 CFR parts 1216 and 
1218, any applicable handbook specified under 30 CFR 1227.401 (f) and 
(g), interagency memorandums of understanding to which ONRR is a party, 
and the Standards;
    (b) Ensure that reporters accurately and timely correct all fatal 
errors as designated in the Standards. These errors include, for 
example, invalid or incorrect reporter/payor codes, incorrect lease/
agreement numbers, and missing data fields;
    (c) Submit accepted and corrected lines to ONRR to allow processing 
in a timely manner as provided in the Standards and 30 CFR part 1219; 
and
    (d) Comply with the procedures for appealed demands or orders, 
including meeting timeframes, supplying information, and using the 
appropriate format.

[62 FR 43064, Aug. 12, 1997, as amended at 67 FR 19112, Apr. 18, 2002; 
75 FR 61087, Oct. 4, 2010]



Sec. 1227.600  What automated verification functions may a State perform?

    Automated verification involves systematic monitoring of production 
and royalty reports to identify and resolve reporting or payment 
discrepancies. States may perform the following:
    (a) Automated comparison of sales volumes reported by royalty 
reporters to sales and transfer volumes reported by production 
reporters. If you request delegation of automated comparison of sales 
and production volumes, you must perform at least the following 
functions:
    (1) Performing an initial sales volume comparison between royalty 
and production reports;
    (2) Performing subsequent comparisons when reporters adjust royalty 
or production reports;
    (3) Checking unit prices for reasonable product valuation based on 
reference price ranges ONRR provides;
    (4) Resolving volume variances using written correspondence, 
telephone inquiries, or other media;
    (5) Maintaining appropriate file documentation to support case 
resolution; and
    (6) Issuing orders to correct reports or payments;
    (b) Any one or more of the following additional automated 
verification functions:
    (1) Verifying compliance with lease financial terms, such as payment 
of rent, minimum royalty, and advance royalty;
    (2) Identifying and resolving improper adjustments;
    (3) Identifying late payments and insufficient estimates, including 
calculating interest owed to ONRR and verifying payor-calculated 
interest owed to ONRR;
    (4) Calculating interest due to a lessee or its designee for an 
adjustment or refund, including identifying overpayments and excessive 
estimates;
    (5) Verifying royalty rates; and
    (6) Verifying compliance with transportation and processing 
allowance limitations;
    (c) Issuing notices and bills associated with any of the functions 
under paragraphs (a) and (b) of this section; and
    (d) Providing assistance to ONRR for any of these delegated 
functions on appealed demands or orders, including meeting timeframes, 
supplying information, using the appropriate format, taking remanded 
actions, modifying orders, and providing oral and written briefing and 
testimony as expert witnesses.



Sec. 1227.601  What are a State's responsibilities if it performs automated 

verification?

    To perform automated verification of production reports or royalty 
reports, you must:
    (a) Verify through research and analysis all identified exceptions 
and prepare the appropriate billings, assessment letters, warning 
letters, notification letters, Lease Problem Reports, other internal 
forms required, and correspondence required to perform any required 
follow-up action for each function, as specified in the Standards or 
your delegation agreement;

[[Page 914]]

    (b) Resolve and respond to all production reporter or royalty 
reporter inquiries;
    (c) Maintain all documentation and logging procedures as specified 
in the Standards or your delegation agreement;
    (d) Access well, lease, agreement, and production reporter or 
royalty reporter reference data from ONRR and provide updated 
information to ONRR; and
    (e) Comply with procedures for appealed demands and orders, 
including meeting time frames, supplying information, and using the 
appropriate format.



Sec. 1227.700  What enforcement documents may a State issue in support of its 

delegated function?

    This section explains what enforcement actions you may take as part 
of your delegated functions.
    (a) You may issue demands, subpoenas, and orders to perform 
restructured accounting, including related notices to lessees and their 
designees. You also may enter into tolling agreements under section 
15(d)(1) of the Act, 30 U.S.C. 1725(d)(1).
    (b) When you issue any enforcement document you must comply with the 
requirements of section 115 of the Act, 30 U.S.C. 1725.
    (c) When you issue a demand or enter into a tolling agreement under 
section 15(d)(1) of the Act, 30 U.S.C. 1725(d)(1), the highest State 
official having ultimate authority over the collection of royalties or 
the State official to whom that authority has been delegated must sign 
the demand or tolling agreement.
    (d) When you issue a subpoena or order to perform a restructured 
accounting you must:
    (1) Coordinate with ONRR to ensure identification of issues that may 
concern more than one State before you issue subpoenas and orders to 
perform restructured accounting; and
    (2) Ensure that the highest State official having ultimate authority 
over the collection of royalties signs any subpoenas and orders to 
perform restructured accounting, as required under section 115 of the 
Act, 30 U.S.C. 1725. This official may not delegate signature authority 
to any other person.

                           Performance Review



Sec. 1227.800  How will ONRR monitor a State's performance of delegated 

functions?

    This section explains ONRR's procedures for monitoring your 
performance of any of your delegated functions.
    (a) A monitoring team of ONRR officials will annually review your 
performance of the delegated functions and compliance with your 
delegation agreement, the Standards, and 30 U.S.C. 1735, including 
conducting fiscal examination to verify your costs for reimbursement.
    (b) The monitoring team also will:
    (1) Periodically review your statistical reports required under 
Sec. 1227.200(e) to verify your accuracy, timeliness, and efficiency;
    (2) Check for timely transmittal of production report or royalty 
report information to ONRR and other affected agencies, as applicable, 
to allow for proper disbursement of funds and processing of information;
    (3) Coordinate on-site visits and Office of the Inspector General, 
General Accounting Office, and ONRR audits of your performance of your 
delegated functions; and
    (4) Maintain reports of its monitoring activities.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.801  What if a State does not adequately perform a delegated 

function?

    If your performance of the delegated function does not comply with 
your delegation agreement, or the Standards, or if ONRR finds that you 
can no longer meet the statutory requirements under Sec. 1227.106, then 
ONRR may:
    (a) Notify you in writing of your noncompliance or inability to 
comply. The notice will prescribe corrective actions you must take, and 
how long you have to comply. You may ask ONRR for an extension of time 
to comply with the notice. In your extension request you must explain 
why you need more time; and
    (b) If you do not take the prescribed corrective actions within the 
time that ONRR allows in a notice issued under

[[Page 915]]

paragraph (a) of this section, then ONRR may:
    (1) Initiate proceedings under Sec. 1227.802 to terminate all or a 
part of your delegation agreement;
    (2) Withhold compensation provided to you under Sec. 1227.112; and
    (3) Perform the delegated function, before terminating or without 
terminating your delegation agreement, including, but not limited to, 
issuing a demand or order to a Federal lessee, or its designee, or any 
other person when:
    (i) Your failure to issue the demand or order would result in an 
underpayment of an obligation due ONRR; and
    (ii) The underpayment would go uncollected without ONRR 
intervention.



Sec. 1227.802  How will ONRR terminate a State's delegation agreement?

    This section explains the procedures ONRR will use to terminate all 
or a part of your delegation agreement:
    (a) ONRR will notify you in writing that it is initiating procedures 
to terminate your delegation agreement;
    (b) ONRR will provide you notice and opportunity for a hearing under 
Sec. 1227.803 of this part;
    (c) The ONRR Director, with concurrence from the Secretary, will 
decide whether to terminate your delegation agreement.
    (d) After the hearing, ONRR may:
    (1) Terminate your delegation agreement; or
    (2) Allow you 30 days to correct any remaining deficiencies. If you 
do not correct the deficiency within 30 days, ONRR will terminate all or 
a part of your delegation agreement.
    (e) ONRR will determine the date your agreement is terminated and 
will notify you of that date in writing. ONRR will determine the 
termination date based on the number of delegated functions and the 
impact of the termination on all affected parties.



Sec. 1227.803  What are the hearing procedures for terminating a State's 

delegation agreement?

    (a) The ONRR Director will appoint a hearing official to conduct one 
or more public hearings for fact finding and to determine any actions 
you must take to correct the noncompliance. The hearing official will 
not decide whether to terminate your delegation agreement;
    (b) The hearing official will contact you about scheduling a hearing 
date and location;
    (c) The hearing official will publish notice of the hearing in the 
Federal Register and other appropriate media within your State;
    (d) At the hearing, you will have an opportunity to present 
testimony and written information on your ability to perform your 
delegated functions as required under this part, your delegation 
agreement, and the Standards;
    (e) Other persons may attend the hearing and may present testimony 
and written information for the record;
    (f) ONRR will record the hearing;
    (g) After the hearing, ONRR may require you to submit additional 
information; and
    (h) Information presented at each public hearing will help ONRR to 
determine whether:
    (1) You have complied with the terms and conditions of your 
delegation agreement; or
    (2) You have the capability to comply with the requirements under 
Sec. 1227.106 of this part.

[62 FR 43084, Aug. 12, 1997, as amended at 75 FR 61087, Oct. 4, 2010]



Sec. 1227.804  How else may a State's delegation agreement terminate?

    You may request ONRR to terminate your delegation at any time by 
submitting your written notice of intent 6 months prior to the date on 
which you want to terminate. ONRR will determine the date your agreement 
is terminated and will notify you of that date in writing. ONRR will 
determine the termination date based on the number of delegated 
functions and the impact of the termination on all affected parties.



Sec. 1227.805  How may a State obtain a new delegation agreement after 

termination?

    After your delegation agreement is terminated, you may apply again 
for delegation by beginning with the proposal process under this part.

[[Page 916]]



PART 1228_COOPERATIVE ACTIVITIES WITH STATES AND INDIAN TRIBES--Table of 

Contents



                      Subpart A_General Provisions

Sec.
1228.1 Purpose.
1228.2 Policy.
1228.3 Limitation on applicability.
1228.4 Authority.
1228.5 Delegation of authority.
1228.6 Definitions.
1228.10 Information collection.

Subpart B--Oil and Gas, General [Reserved]

                     Subpart C_Oil and Gas, Onshore

1228.100 Entering into an agreement.
1228.101 Terms of agreement.
1228.102 Establishment of standards.
1228.103 Maintenance of records.
1228.104 Availability of information.
1228.105 Funding of cooperative agreements.
1228.107 Eligible cost of activities.
1228.108 Deduction of civil penalties accruing to the State or tribe 
          from the Federal share of a cooperative agreement.

    Authority: Sec. 202, Pub. L. 97-451, 96 Stat. 2457 (30 U.S.C. 1732).

    Source: 49 FR 37348, Sept. 21, 1984, unless otherwise noted. 
Redesignated at 75 FR 61087, Oct. 4, 2010.



                      Subpart A_General Provisions



Sec. 1228.1  Purpose.

    It is the purpose of cooperative agreements to effectively utilize 
the capabilities of the States and Indian tribes in developing and 
maintaining an efficient and effective Federal royalty management system 
as indicated at 30 U.S.C. 1701.



Sec. 1228.2  Policy.

    It shall be the policy of DOI to enter into cooperative agreements 
with States and Indian tribes to carry out audits and related 
investigations and enforcement actions whenever a State or tribe 
initiates a request to enter into an agreement and a finding is made 
that a State or tribe has the ability to carry out cooperative 
activities in a timely and efficient manner.



Sec. 1228.3  Limitation on applicability.

    As of the effective date of this rule, September 11, 1997, this part 
does not apply to Federal lands.

[62 FR 43091, Aug. 12, 1997]



Sec. 1228.4  Authority.

    The Secretary of the Interior is authorized to enter into 
cooperative agreements with States and Indian tribes (30 U.S.C. 1732) to 
share oil or gas royalty management information, and to carry out 
auditing and related investigation or enforcement activities in 
cooperation with the Secretary.



Sec. 1228.5  Delegation of authority.

    (a) Authority to enter into cooperative agreements to carry out 
audit and related investigation and enforcement activities with State 
and tribal governments has been delegated to the Director of the Office 
of Natural Resources Revenue (ONRR).
    (b) Authority to enter into cooperative agreements with State and 
tribal governments to carry out inspection and related investigation and 
enforcement activities has been delegated to the Director of the Bureau 
of Land Management (BLM) and is not covered by this part.
    (c) The entry into a cooperative agreement with either ONRR or BLM 
will not affect the ability of a State or Indian tribe to choose to 
enter into such an agreement with the other agency. A State may enter 
into a delegation agreement (30 U.S.C. 1735) with ONRR to perform 
certain functions without affecting its ability to enter into a 
cooperative agreement with either ONRR or BLM, or both, to cooperate in 
the performance of those functions which are not delegated in this part.



Sec. 1228.6  Definitions.

    For the purposes of this part, terms shall have the same meaning as 
in 30 U.S.C. 1702. In addition, the following definition shall apply:
    Audit means an examination of the financial accounting and lease 
related records of the lessee and other interest holders, who by lease 
or contract pay royalties or are obligated to pay royalties, rents, 
bonuses or other payments

[[Page 917]]

on Federal or Indian leases. An examination is to be conducted in 
accordance with generally accepted audit standards as adopted by the 
American Institute of Certified Public Accountants. Activities to be 
examined which are considered to be an audit function include 
reconciliation of lease accounts under the Royalty Accounting System; 
records of lease activities related to Federal leases located within the 
boundaries of the State entering into a cooperative agreement; records 
of lease activities related to leases located on Indian lands, and the 
review and resolution of exceptions processed by the official accounting 
systems for royalty reporters and payors maintained by the ONRR.

[49 FR 37348, Sept. 21, 1984, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 1228.10  Information collection.

    (a) The information collection requirements contained in this part 
have been approved by OMB under 44 U.S.C. 3501 et seq. and assigned OMB 
Clearance Number 1010-0087. The information collected will be used to 
prepare a cooperative agreement with a State or Indian tribe wishing to 
perform royalty audits. The information should be submitted voluntarily 
in order to enter into a cooperative agreement authorized by 30 U.S.C. 
1732.
    (b) Public reporting burden is estimated to average 136 hours for 
the preparation of the original request for consideration and 
application to enter into a cooperative agreement. Subsequent requests 
for renewal of the agreement may require about 40 hours for the 
preparation of an annual budget and work plan, and an estimated 8 hours 
per quarter for preparation of a reimbursement voucher and an audit 
progress report. Send comments regarding this burden estimate or any 
other aspect of this collection of information, including suggestions 
for reducing burden, to the Information Collection Clearance Officer, 
Bureau of Ocean Energy Management, Regulation, and Enforcement, 381 
Elden Street, Herndon, Virginia 22070; and to the Office of Information 
and Regulatory Affairs, Office of Management and Budget, Paperwork 
Reduction Project 1010-0087, Washington, DC 20503.

[57 FR 41868, Sept. 14, 1992, as amended at 58 FR 64903, Dec. 10, 1993]

Subpart B--Oil and Gas, General [Reserved]



                     Subpart C_Oil and Gas, Onshore



Sec. 1228.100  Entering into an agreement.

    (a) A State or Indian tribe may request the Department to enter into 
a cooperative agreement by sending a letter from the governor, tribal 
chairman, or other appropriate official with delegation authority, to 
the Director of ONRR.
    (b) The request for an agreement shall be in a format prescribed by 
ONRR and should include at a minimum the following information:
    (1) Type of eligible activities to be undertaken.
    (2) Proposed term of the agreement.
    (3) Evidence that the State or Indian tribe meets, or can meet by 
the time the agreement is in effect, the standards established by the 
Secretary for the types of activities to be conducted under the terms of 
the agreement.
    (4) If the State is proposing to undertake activities on Indian 
lands located within the State, a resolution from the appropriate tribal 
council indicating their agreement to delegate to the State 
responsibilities under the terms of the cooperative agreement for 
activities to be conducted on tribal or allotted land.
    (c) The eligible activities to be conducted under the terms of a 
cooperative agreement may be funded or unfunded by the Department. See 
Sec. 1228.105 of this subpart for funding of cooperative agreements.

[49 FR 37348, Sept. 21, 1984, as amended at 56 FR 10512, Mar. 13, 1991]



Sec. 1228.101  Terms of agreement.

    (a) Agreements entered into under this part shall be valid for a 
period of 3 years and shall be renewable or additional consecutive 3-
year periods upon request of the State or Indian tribe which is a party 
to the agreement.
    (b) An agreement may be terminated at any time by mutual agreement 
and

[[Page 918]]

upon any terms and conditions as agreed upon by the parties.
    (c) A State or Indian tribe may unilaterally terminate an agreement 
by giving a 120-day written notice of intent to terminate.
    (d) The ONRR may commence termination of an agreement by giving a 
120-day written notice of intent to terminate. ONRR shall provide the 
State or Indian tribe with the reasons for the proposed termination in 
writing if the termination is proposed because of alleged deficiencies 
by the State or Indian tribe in carrying out the provisions of the 
agreement. The State or Indian tribe will be given 60 days to respond to 
the notice of deficiencies and to provide a plan for correction of those 
deficiencies. No final action on termination shall be taken until any 
submission of the State or Indian tribe provided within the above 
prescribed 60 days has been reviewed by ONRR for content or merit.
    (e) Termination of a cooperative agreement shall not bar a later 
request by a State or Indian tribe to enter into a subsequent 
cooperative agreement.



Sec. 1228.102  Establishment of standards.

    The ONRR, after consultation with States and Indian tribes, shall 
establish standards for carrying out the activities under the provisions 
of this part. The standards will be incorporated into the agreement and 
shall be no more stringent than those applicable to similar activities 
of the ONRR. The States and Indian tribes shall coordinate their planned 
auditing activities with ONRR. Where an ONRR audit team is permanently 
assigned to a lessee/payor, contact by State and Indian tribal auditors 
with the lessee/payor shall be through the ONRR auditor in residence.



Sec. 1228.103  Maintenance of records.

    (a) The State or Indian tribe entering into a cooperative agreement 
under this part must retain all records, reports, working papers, and 
any backup materials for a period specified by ONRR. All records and 
support materials must be available for inspection and review by 
appropriate personnel of the Department including the Office of the 
Inspector General.
    (b) The State or Indian tribe shall maintain all books and records 
as may be necessary to assure compliance with the provisions of chapter 
1, 48 CFR 31.107 and 48 CFR subpart 31.6 (Contracts with State, local, 
and federally recognized Indian tribal Governments).

[56 FR 10512, Mar. 13, 1991]



Sec. 1228.104  Availability of information.

    (a) Under the provisions of this part, information necessary to 
carry out the activities authorized under the terms of a cooperative 
agreement will be provided by DOI to the States and Indian tribes 
entering into such agreements. The information will consist of data 
provided from all relevant sources on a lease level basis for leases 
located within the boundaries of the State or Indian tribe which has 
entered into the agreement. This information will include any records or 
data held by the lessee or other person that have not been submitted to 
ONRR, but that affect Federal lease interests and could be required to 
be submitted under the lease terms or Federal regulations.
    (b) None of the provisions of this subpart should be construed as 
limiting information already being provided to Indian tribes and 
allottees regarding their lease interests.
    (c) Information will be provided by ONRR on a monthly basis and will 
include data on royalties, rents, and bonuses collected on the lease, 
volumes produced, sales made, value of products disposed of as a sale 
and used as a basis for royalty calculation, and other information 
necessary to allow the State or tribe to carry out its responsibilities 
under the cooperative agreement.
    (d) Proprietary data that is made available to a State or tribe 
under provisions of 30 U.S.C. 1733 shall be subject to the constraints 
of 18 U.S.C. 1905. To receive proprietary data, the State or tribe 
must--
    (1) Demonstrate what audit, investigation, or litigation under 
provisions of 30 U.S.C. 1734 is planned for or underway for which this 
data is essential;
    (2) Demonstrate why this particular data is necessary; and
    (3) Agree to safeguard proprietary data as provided.

[[Page 919]]



Sec. 1228.105  Funding of cooperative agreements.

    (a)(1) The Department may, under the terms of the cooperative 
agreement, reimburse the State or Indian tribe up to 100 percent of the 
costs of eligible activities. Eligible activities will be agreed upon 
annually upon the submission and approval of a workplan and funding 
requirement.
    (2) A cooperative agreement may be entered into with a State or 
Indian tribe, upon request, without a requirement for reimbursement of 
costs by the Department.
    (b) All cooperative agreements under this part are subject to annual 
funding and the availability of appropriations specifically designated 
for the purpose of this part.
    (c) The State or Indian tribe shall submit a voucher for 
reimbursement of eligible costs incurred within 30 days of the end of 
each calendar quarter. The State or Indian tribe must provide the 
Department a summary of costs incurred, for which the State or Indian 
tribe is seeking reimbursement, with the voucher.

[49 FR 37348, Sept. 21, 1984, as amended at 56 FR 10512, Mar. 13, 1991]



Sec. 1228.107  Eligible cost of activities.

    (a) If a cooperative agreement provides for Federal funding, only 
costs directly associated with eligible activities undertaken by the 
State or Indian tribe under the terms of a cooperative agreement will be 
eligible for reimbursement. Costs of services or activities which cannot 
be directly related to the support of activities specified in the 
agreement will not be eligible for Federal funding or for inclusion in 
the State's share or in the Indian tribe's share of funding that may be 
established in the agreement.
    (b) Eligible costs are the cost of salaries and benefits associated 
with technical, support, and clerical personnel engaged in eligible 
activities; direct cost of travel, rentals, and other normal 
administrative activities in direct support of the project or projects; 
basic and specialized training for State and tribal participants; and 
cost of any contractual services which can be shown to be in direct 
support of the activities covered by the agreement. Each cooperative 
agreement shall contain detailed schedules identifying those activities 
and costs which qualify for funding and the procedures, timing, and 
mechanics for implementing Federal funding.

[49 FR 37348, Sept. 21, 1984, as amended at 56 FR 10512, Mar. 13, 1991]



Sec. 1228.108  Deduction of civil penalties accruing to the State or tribe 

from the Federal share of a cooperative agreement.

    As provided at 30 U.S.C. 1736, 50 percent of any civil penalty 
collected as a result of activities under a cooperative agreement will 
be shared with the State or Indian tribe performing the cooperative 
agreement; however, the amount of the civil penalty shared will be 
deducted from any Federal funding owed under that cooperative agreement. 
ONRR shall maintain records of civil penalties collected and distributed 
to the States and tribes involved in cooperative agreements. Each 
quarterly payment of the Federal share of a cooperative agreement will 
be reduced by the amount of the civil penalties paid to the State or 
tribe during the prior quarter.



PART 1229_DELEGATION TO STATES--Table of Contents



                      Subpart A_General Provisions

Sec.
1229.1 Purpose.
1229.2 Policy.
1229.3 Limitation on applicability.
1229.4 Authority.
1229.6 Definitions.
1229.10 Information collection requirements.

Subpart B--Oil and Gas, General [Reserved]

                     Subpart C_Oil and Gas, Onshore

                      Administration of Delegations

1229.100 Authorities and responsibilities subject to delegation.
1229.101 Petition for delegation.
1229.102 Fact-finding and hearings.
1229.103 Duration of delegations; termination of delegations.
1229.104 Terms of delegation of authority.
1229.105 Evidence of Indian agreement to delegation.

[[Page 920]]

1229.106 Withdrawal of Indian lands from delegated authority.
1229.107 Disbursement of revenues.
1229.108 Deduction of civil penalties accruing to the State or tribe 
          under the delegation of authority.
1229.109 Reimbursement for costs incurred by a State under the 
          delegation of authority.
1229.110 Examination of the State activities under delegation.
1229.111 Materials furnished to States necessary to perform delegation.

                         Delegation Requirements

1229.120 Obtaining regulatory and policy guidance.
1229.121 Recordkeeping requirements.
1229.122 Coordination of audit activities.
1229.123 Standards for audit activities.
1229.124 Documentation standards.
1229.125 Preparation and issuance of enforcement documents.
1229.126 Appeals.
1229.127 Reports from States.

    Authority: 30 U.S.C. 1735.



                      Subpart A_General Provisions

    Source: 49 FR 37350, Sept. 21, 1984, unless otherwise noted. 
Redesignated at 75 FR 61087, Oct. 4, 2010.



Sec. 1229.1  Purpose.

    The purpose of this part is to promote the effective utilization of 
the capabilities of the States in developing and maintaining an 
efficient and effective Federal royalty management system.



Sec. 1229.2  Policy.

    It shall be the policy of the Department of the Interior (DOI) to 
honor any properly made petition from the Chief Executive or other 
appopriate official of a State seeking delegation of authority under the 
provisions of 30 U.S.C. 1735 and to make a delegation to conduct audits 
and related investigations when the Secretary finds that the provisions 
of 30 U.S.C. 1735 have been complied with or can be complied with by a 
State seeking the delegation.



Sec. 1229.3  Limitation on applicability.

    As of the effective date of this rule, September 11, 1997, this part 
does not apply to Federal lands.

[62 FR 43091, Aug. 12, 1997]



Sec. 1229.4  Authority.

    The Secretary of the DOI is authorized under provisons of 30 U.S.C. 
1735 to delegate authority to States to conduct audits and related 
investigations with respect to all Federal lands within a State, and to 
those Indian lands to which a State has received permission from the 
respective Indian tribe(s) or allottee(s) to carry out audit activities 
under a delegation from the Secretary.



Sec. 1229.6  Definitions.

    The definitions contained in 30 U.S.C. 1702 and in part 228 of this 
title apply to the activities carried out under the provisions of this 
part.



Sec. 1229.10  Information collection requirements.

    The information collection requirements contained in this part do 
not require approval by the Office of Management and Budget under 44 
U.S.C. 3501 et seq., because there are fewer than 10 respondents 
annually.

Subpart B--Oil and Gas, General [Reserved]



                     Subpart C_Oil and Gas, Onshore

    Authority: The Federal Oil and Gas Royalty Management Act of 1982 
(30 U.S.C. 1701 et seq.).

                      Administration of Delegations



Sec. 1229.100  Authorities and responsibilities subject to delegation.

    (a) All or part of the following authorities and responsibilities of 
the Secretary under the Act may be delegated to a State authority:
    (1) Conduct of audits related to oil and gas royalty payments made 
to the Office of Natural Resources Revenue (ONRR) which are attributable 
to leased Federal or Indian lands within the State. Delegations with 
respect to any Indian lands require the written permission, subject to 
the review of the ONRR, of the affected Indian tribe or allottee.
    (2) Conduct of investigations related to oil and gas royalty 
payments made to the ONRR which are attributable to leased Federal lands 
or Indian lands

[[Page 921]]

within the State. Delegation with respect to any Indian lands require 
the written permission, subject to the review of the ONRR, of the 
affected Indian tribe or allottee. No investigation will be initiated 
without the specific approval of the ONRR or the Secretary's designee 
and in accordance with the Departmental Manual.
    (b) The following authorities and responsibilities are specifically 
reserved to the ONRR and are not delegable under these regulations:
    (1) Enforcement actions to assess and collect additional royalties 
identified as a consequence of audits, inspections, and investigations. 
These include all actions related to resolution of royalty obligations 
so identified, and the establishment and maintenance of payment 
performance bonds which may be required during the resolution process.
    (2) Enforcement actions to collect civil penalties and interest 
charges related to findings of audits, inspections, and investigations.
    (3) Administration of all appeals and all actions of the Department 
related to administrative and judicial litigation.
    (4) Issuance of subpoenas.
    (c) The provisions of this section do not limit the authority 
provided to the States by section 204 of the Act.

[49 FR 40026, Oct. 12, 1984]



Sec. 1229.101  Petition for delegation.

    (a) The governor or other authorized official of any State which 
contains Federal oil and gas leases, or Indian oil and gas leases where 
the Indian tribe and allottees have given the State an affirmative 
indication of their desire for the State to undertake certain royalty 
management-related activities on their lands, may petition the Secretary 
to assume responsibilities to conduct audits and related investigations 
of royalty related matters affecting Federal or Indian oil and gas 
leases within the State.
    (b) A State may enter into a delegation of authority under this part 
without affecting a State's ability to enter into a cooperative 
agreement under part 228 of this title.
    (c) The Secretary shall carry out all factfinding and hearings he 
may decide are necessary in order to approve or disapprove the petition.
    (d) In the event that the Secretary denies the petition, the 
Secretary must provide the State with the specific reasons for denial of 
the petition. The State will then have 60 days to either contest or 
correct specific deficiencies and to reapply for a delegation of 
authority.

[49 FR 37350, Sept. 21, 1984. Redesignated and amended at 49 FR 40025, 
Oct. 12, 1984]



Sec. 1229.102  Fact-finding and hearings.

    (a) Upon receipt of a petition for delegation from a State, the 
Secretary shall appoint a representative to conduct a hearing or 
hearings to carry out factfinding and determine the ability of the 
petitioning State to carry out the delegated responsibilities requested 
in accordance with the provisions of this part.
    (b) The Secretary's representative, after proper notice in the 
Federal Register and other appropriate media within the State, shall 
hold one or more public hearings to determine whether:
    (1) The State has an acceptable plan for carrying out delegated 
responsibilities and if it is likely that the State will provide 
adequate resources to achieve the purposes of this part (30 U.S.C. 
1735);
    (2) The State has the ability to put in place a process within 60 
days of the grant of delegation which will assure the Secretary that the 
functions to be delegated to the State can be effectively carried out;
    (3) The State has demonstrated that it will effectively and 
faithfully administer the rules and regulations of the Secretary in 
accordance with the requirements at 30 U.S.C. 1735;
    (4) The State's plan to carry out the delegated authority will be in 
accordance with the ONRR standards; and
    (5) The State's plan to carry out the delegated authority will be 
coordinated with ONRR and the Office of Inspector General audit efforts 
to eliminate added burden on any lessee or group of lessees operating 
Federal or Indian oil and gas leases within the State.

[[Page 922]]

    (c) A State petitioning for a delegation of authority shall be given 
the opportunity to present testimony at a public hearing.

[49 FR 37350, Sept. 21, 1984. Redesignated and amended at 49 FR 40025, 
Oct. 12, 1984]



Sec. 1229.103  Duration of delegations; termination of delegations.

    (a) Delegations of authority shall be valid for a period of 3 years 
and may be renewable for an additional consecutive 3-year period upon 
request of the State and after the appropriate factfinding required in 
Sec. 1229.101. Delegations are subject to annual funding and the 
availability of appropriations specifically designated for the purpose 
of this part.
    (b) A delegation of authority may be terminated at any time and upon 
any terms and conditions as mutually agreed upon by the parties.
    (c) A State may terminate a delegation of authority by giving a 120-
day written notice of intent to terminate.
    (d) The Department may terminate a delegation of authority when it 
is determined, after opportunity for a hearing, that the State has 
failed to substantially comply with the provisions of the delegation of 
authority.
    (e) No action to initiate formal hearing proceedings for termination 
shall be taken until the Department has notified the State in writing of 
alleged deficiencies and allowed the State 120 days to correct the 
deficiencies.
    (f) Termination of a delegation shall not bar a subsequent request 
by a State to regain a delegation of authority.

[49 FR 37351, Sept. 21, 1984, as amended at 49 FR 40025, Oct. 12, 1984]



Sec. 1229.104  Terms of delegation of authority.

    Each delegation of authority under this part shall be in writing, 
shall incorporate all the requirements of this part, and shall 
specifically include:
    (a) Terms obligating the State to conduct audit and investigative 
activities for a specific period of time;
    (b) Terms describing the authorities and responsibilities reserved 
by the ONRR, including, but not limited to, those specified under Sec. 
1229.100;
    (c) Terms requiring the State to provide annual audit workplans to 
include the lease universe by company, or by individual lease accounts, 
a description of the audit work product(s) to be delivered, and the 
State resources (staff and otherwise) to be committed to the delegation;
    (d) Terms requiring the State to notify the ONRR of any changed 
circumstances which would affect the State's ability to carry out the 
terms of the delegation;
    (e) Terms requiring coordination of delegated activities among the 
State, the ONRR, and the land management agencies responsible for 
management of the leases included in the audit universe;
    (f) Terms requiring the State to maintain and make available to the 
ONRR all audit workpapers, documents, and information gained or 
developed as a consequence of activities conducted under the delegation;
    (g) Terms obligating the State to adhere to all Federal laws, rules 
and regulations, and Secretarial determinations and orders relating to 
the calculation, reporting, and payment of oil and gas royalties, in all 
activities performed under the delegation.

[49 FR 40026, Oct. 12, 1984]



Sec. 1229.105  Evidence of Indian agreement to delegation.

    In the case of a State seeking a delegation of authority for Indian 
lands as well as Federal lands, the State petition to the Secretary must 
be supported by an appropriate resolution or resolutions of tribal 
councils joining the State in petitioning for delegation and evidence of 
the agreement of individual Indian allottees whose lands would be 
involved in a delegation. Such evidence shall specifically speak to 
having the State assume delegated responsibility for specific functions 
related to royalty management activities.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]



Sec. 1229.106  Withdrawal of Indian lands from delegated authority.

    If at any time an Indian tribe or an individual Indian allottee 
determines that it wishes to withdraw from the

[[Page 923]]

State delegation of authority in relation to its lands, it may do so by 
sending a petition of withdrawal to the State. Once the petition has 
been received, the State shall within 30 days cease all activities being 
carried out under the delegation of authority on the lands covered by 
the petition for the tribe or allottee.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]



Sec. 1229.107  Disbursement of revenues.

    (a) The additional royalties and late payment charges resulting from 
State audit work done under a delegation of authority shall be collected 
by ONRR. The State's share of any amounts so collected shall be paid to 
the State in accordance with the provisions of 30 U.S.C. 191 and part 
1219 of this title.
    (b) Amounts collected for Indian leases shall be transferred to the 
appropriate Indian accounts (designated Treasury accounts) managed by 
the Bureau of Indian Affairs at the earliest practicable date after such 
funds are received, but in no case later than the last business day of 
the month in which such funds are received.
    (c) ONRR shall provide to the State on a monthly basis, an 
accounting of collections resulting from audit work and enforcement 
actions resulting from a delegation of authority. Such accounting will 
identify collections broken down by royalties, penalties and interest 
paid.

[49 FR 40026, Oct. 12, 1984]



Sec. 1229.108  Deduction of civil penalties accruing to the State or tribe 

under the delegation of authority.

    Fifty percent of any civil penalty resulting from activities under a 
delegation of authority shall be shared with the delegated State. 
However, the amount of the civil penalty shared will be deducted from 
any Federal funding owed under a delegation of authority under the 
provisions of 30 U.S.C. 1735. ONRR shall maintain records of civil 
penalties collected and distributed to the States involved in 30 U.S.C. 
1735 delegations. Each quarterly payment will be reduced by the amount 
of the civil penalties paid to the delegated State or tribe during the 
prior quarter.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]



Sec. 1229.109  Reimbursement for costs incurred by a State under the 

delegation of authority.

    (a) The Department of the Interior (DOI) shall reimburse the State 
for 100 percent of the direct cost associated with the activities 
undertaken under the delegation of authority. The State shall maintain 
books and records in accordance with the standards established by the 
DOI and will provide the DOI, on a quarterly basis, a summary of costs 
incurred for which the State is seeking reimbursement. Only costs as 
defined under the provisions of 30 U.S.C. 1735 are eligible for 
reimbursement.
    (b) The State shall submit a voucher for reimbursement of costs 
incurred within 30 days of the end of each calendar quarter.

[49 FR 37351, Sept. 21, 1984]



Sec. 1229.110  Examination of the State activities under delegation.

    (a) The Department will carry out an annual examination of the 
State's delegated activities undertaken under the delegation of 
authority.
    (b) The examination required by this section will consist of a 
management review and a fiscal examination and evaluation to determine--
    (1) That activities being carried out by the State under the 
delegation of authority meet the standards established by the Department 
and in particular the provisions of 30 U.S.C. 1735; and
    (2) That costs incurred by the State under the delegation of 
authority are eligible for reimbursement by the Department.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]



Sec. 1229.111  Materials furnished to States necessary to perform delegation.

    The ONRR shall provide to the State all reports, files, and 
supporting materials within its possession necessary to allow the State 
to effectively carry out

[[Page 924]]

the terms of the delegation specified in Sec. 1229.104.

[49 FR 40026, Oct. 12, 1984]

                         Delegation Requirements

    Source: Sections 229.120 through 229.126 appear at 49 FR 40026, Oct. 
12, 1984, unless otherwise noted.



Sec. 1229.120  Obtaining regulatory and policy guidance.

    All activities performed by a State under a delegation must be in 
full accord with all Federal laws, rules and regulations, and 
Secretarial and agency determinations and orders relating to the 
calculation, reporting, and payment of oil and gas royalties. In those 
cases when guidance or interpretations are necessary, the State will 
direct written requests for such guidance or interpretation to the 
appropriate ONRR officials. All policy and procedural guidance or 
interpretation provided by the ONRR shall be in writing and shall be 
binding on the State.



Sec. 1229.121  Recordkeeping requirements.

    (a) The State shall maintain in a safe and secure manner all 
records, workpapers, reports, and correspondence gained or developed as 
a consequence of audit or investigative activities conducted under the 
delegation. All such records shall be made available for review and 
inspection upon request by representatives of the Secretary and the 
Department's Office of Inspector General (OIG).
    (b) The State must maintain in a confidential manner all data 
obtained from DOI sources or from payor or company sources under the 
delegation which have been deemed ``confidential or proprietary'' by DOI 
or a company or payor. In this regard, the State regulatory authority 
shall be bound by provisions of 30 U.S.C. 1733. ONRR shall provide to 
the State guidelines for determining confidential and proprietary 
material.
    (c) All records subject to the requirements of paragraph (a) must be 
maintained for a 6-year period measured from the end of the calendar 
year in which the records were created. All dispositions or records must 
be with the written approval of the ONRR. Upon termination of a 
delegation, the State shall, within 90 days from the date of 
termination, assemble all records specified in subsection (a), complete 
all working paper files in accordance with Sec. 1229.124, and transfer 
such records to the ONRR.
    (d) The State shall maintain complete cost records for the 
delegation in accordance with generally accepted accounting principles. 
Such records shall be in sufficient detail to demonstrate the total 
actual costs associated with the project and to permit a determination 
by ONRR whether delegation funds were used for their intended purpose. 
All such records shall be made available for review and inspection upon 
request by representatives of the Secretary and the Department's Office 
of Inspector General (OGIG).



Sec. 1229.122  Coordination of audit activities.

    (a) Each State with a delegation of authority shall submit annually 
to the ONRR an audit workplan specifically identifying leases, 
resources, companies, and payors scheduled for audit. This workplan must 
be submitted 120 days prior to the beginning of each fiscal year. A 
State may request changes to its workplan (including the companies and 
leases to be audited) at the end of each quarter of each fiscal year. 
All requested changes are subject to approval by the ONRR and must be 
submitted in writing.
    (b) When a State plans to audit leases of a lessee or royalty payor 
for which there is an ONRR or OIG resident audit team, all audit 
activities must be coordinated through the ONRR or OIG resident 
supervisor. Such activities include, but are not limited to, issuance of 
engagement letters, arranging for entrance conferences, submission of 
data requests, scheduling of audit activities including site visits, 
submission of issue letters, and closeout conferences.
    (c) The State shall consult with the ONRR and/or OIG regarding 
resolution of any coordination problems encountered during the conduct 
of delegation activities.

[[Page 925]]



Sec. 1229.123  Standards for audit activities.

    (a) All audit activities performed under a delegation of authority 
must be in accordance with the ``Standards for Audit of Governmental 
Organizations, Programs, Activities, and Functions'' as issued by the 
Comptroller General of the United States.
    (b) The following audit standards also shall apply to all audit work 
performed under a delegation of authority.
    (1) General standards--(i) Qualifications. The auditors assigned to 
perform the audit must collectively possess adequate professional 
proficiency for the tasks required, including a knowledge of accounting, 
auditing, agency regulations, and industry operations.
    (ii) Independence. In all matters relating to the audit work, the 
audit organization and the individual auditors must be free from 
personal or external impairments to independence and shall maintain an 
independent attitude and appearance.
    (iii) Due professional care. Due professional care is to be used in 
conducting the audit and in preparing related reports.
    (iv) Quality control. The State governments must institute quality 
control review procedures to ensure that all audits are performed in 
conformity with the standards established herein.
    (2) Examination and evaluation standards--Standards and requirements 
for examination and evaluation. Auditors should be alert to situations 
or transactions that could be indicative of fraud, abuse, or illegal 
acts with respect to the program. If such evidence exists, auditors 
should forward this evidence to ONRR. The ONRR will contact the 
appropriate Federal law enforcement agencies. The scope of examinations 
are to be governed by the principle of a justifiable relationship 
between cost and benefit as determined by the auditor or audit 
supervisor. Audit procedures should reflect the most efficient method of 
obtaining the requisite degree of satisfaction. The auditor should 
determine, to the extent possible, the effect on royalty reporting of 
the non-arms'-length nature of related party transactions, such as 
transfers of oil to refinery units affiliated with the producer. A 
review should be made of compliance with the appropriate laws and 
regulations applicable to program operations. ONRR shall issue 
guidelines as to the definition and nature of arms'-length and non-
arms'-length transactions for use in carrying out delegated audit 
activities.
    (3) Standards of reporting. (i) Written audit reports are to be 
submitted to the appropriate ONRR officials at the end of each field 
examination.
    (ii) A statement in the auditors' report that the examination was 
made in accordance with the generally accepted program audit standards 
(including the applicable General Accounting Office (GAO) standards) for 
royalty compliance audits should be in the appropriate language to 
indicate that the audit was made in accordance with this statement of 
standards.
    (iii) The auditor's report should contain a statement of positive 
assurance on those items tested and negative assurance on those items 
not tested. It should also include all instances of noncompliance and 
instances or indications of fraud, abuse, or illegal acts found during 
or in connection with the audit.
    (iv) The auditor's report should contain any other material 
deficiency identified during the audit not covered in paragraph 
(b)(3)(iii) of this section.
    (v) When factors external to the program and to the auditor restrict 
the audit or interfere with the auditor's ability to form objective 
opinions and conclusions (such as denial of access to information by a 
company), the auditor is to notify the ONRR. If the limitation is not 
removed, a description of the matter must be included in the auditor's 
report. ONRR will take all legally enforceable steps necessary to seek 
information necessary to complete the audit.
    (vi) If certain information is prohibited from general disclosure, 
the auditor's report should state the nature of the information omitted 
and the requirement that makes the omission necessary.
    (vii) Written audit reports are to be prepared in the format 
prescribed by the ONRR.

[[Page 926]]

    (viii) In instances where the extent of the audit findings or the 
amounts involved do not warrant it, a formal audit report need not be 
issued. In lieu of an audit report, a memorandum of audit findings will 
be prepared and placed on the case file.

[49 FR 40026, Oct. 12, 1984, as amended at 58 FR 64903, Dec. 10, 1993]



Sec. 1229.124  Documentation standards.

    Every audit performed by a State under a delegation of authority 
must meet certain documentation standards. In particular, detailed 
workpapers must be developed and maintained.
    (a) Workpapers are defined to include all records obtained or 
created in performing an audit.
    (b) Each audit performed varies in scope and detail. As a result, 
the audit team must determine the best presentation of the workpapers 
for a particular audit. The following general standards of workpaper 
preparation are consistent with the goal of achieving proper 
documentation while maintaining sufficient flexibility.
    (1) All relevant information obtained orally must be promptly 
recorded in writing and incorporated in the workpapers.
    (2) Workpapers must be complete and accurate in order to provide 
support for findings and conclusions.
    (3) Workpapers should be clear and understandable without the need 
for supplementary oral explanations. The information they contain must 
be clear, complete, and concise, so that anyone using the workpapers 
will be able to readily determine their purpose, the nature and scope of 
the work done, and the conclusions drawn.
    (4) Workpapers must be legible and as neat as practicable. They must 
meet standards which allow their use as evidence in judicial and 
administrative proceedings.
    (5) The information contained in workpapers should be restricted to 
matters which are materially important and relevant to the objectives 
established for the assignment.
    (6) Workpapers must be in sufficient detail to permit a subsequent 
independent execution of each audit procedure, assuming the target 
company retains its accounting documentation.



Sec. 1229.125  Preparation and issuance of enforcement documents.

    (a) Determinations of additional royalties due resulting from audit 
activities conducted under a delegation of authority must be formally 
communicated by the State, to the companies or other payors by an issue 
letter prior to any enforcement action. The issue letter will serve to 
ensure that all audit findings are accurate and complete by obtaining 
advance comments from officials of the companies or payors audited. 
Issue letters must be prepared in a format specified by the ONRR, and 
transmitted to the company or payor. The company or payor shall be given 
30 days from receipt of the letter to respond to the State on the 
findings contained in the letter.
    (b) After evaluating the company or payor's response to the issue 
letter, the State shall draft a demand letter which will be submitted 
with supporting workpaper files to the ONRR for appropriate enforcement 
action. Any sustantive revisions to the demand letter will be discussed 
with the State prior to issuance of the letter. Copies of all 
enforcement action documents shall be provided to the State by ONRR upon 
their issuance to the company or payor.



Sec. 1229.126  Appeals.

    (a) Appeals made pursuant to the rules and procedures at 30 CFR 
parts 1243 and 1290 related to demand letters issued by officers of the 
ONRR for additional royalties identified under a delegation of authority 
shall be filed with the ONRR for processing. The State regulatory 
authority shall, upon the request of the ONRR, provide competent and 
knowledgeable staff for testimony, as well as any required documentation 
and analyses, in support of the lessor's position during the appeal 
process.
    (b) An affected State, upon the request of the ONRR, shall provide 
expert witnesses from their audit staff for testimony as well as 
required documentation and analyses to support the Department's position 
during the litigation of court cases arising from denied appeals. The 
cost of providing expert witnesses including travel and per

[[Page 927]]

diem is reimbursable under the provisions of a delegation of authority, 
at the Federal Government's existing per diem rates.



Sec. 1229.127  Reports from States.

    The State, acting under the authority of the Secretarial delegation, 
shall submit quarterly reports which will summarize activities carried 
out by the State during the preceding quarter of the year under the 
provisions of the delegation. The report shall include:
    (a) A statistical summary of the activities carried out, e.g., 
number of audits performed, accounts reconciled, and other actions 
taken;
    (b) A summary of costs incurred during the previous quarter for 
which the State is seeking reimbursement; and
    (c) A schedule of changes which the State proposes to make from its 
approved plan.

[49 FR 37351, Sept. 21, 1984. Redesignated at 49 FR 40025, Oct. 12, 
1984]



PART 1241_PENALTIES--Table of Contents



Subpart A--General Provisions [Reserved]

      Subpart B_Penalties for Federal and Indian Oil and Gas Leases

                               Definitions

Sec.
1241.50 What definitions apply to this subpart?

                   Penalties after a Period To Correct

1241.51 What may Office of Natural Resources Revenue (ONRR) do if I 
          violate a statute, regulation, order, or lease term relating 
          to a Federal or Indian oil and gas lease?
1241.52 What if I correct the violation?
1241.53 What if I do not correct the violation?
1241.54 How may I request a hearing on the record on a Notice of 
          Noncompliance?
1241.55 Does my request for a hearing on the record affect the 
          penalties?
1241.56 May I request a hearing on the record regarding the amount of a 
          civil penalty if I did not request a hearing on the Notice of 
          Noncompliance?

                  Penalties Without a Period To Correct

1241.60 May I be subject to penalties without prior notice and an 
          opportunity to correct?
1241.61 How will ONRR inform me of violations without a period to 
          correct?
1241.62 How may I request a hearing on the record on a Notice of 
          Noncompliance regarding violations without a period to 
          correct?
1241.63 Does my request for a hearing on the record affect the 
          penalties?
1241.64 May I request a hearing on the record regarding the amount of a 
          civil penalty if I did not request a hearing on the Notice of 
          Noncompliance?

                           General Provisions

1241.70 How does ONRR decide what the amount of the penalty should be?
1241.71 Does the penalty affect whether I owe interest?
1241.72 How will the Office of Hearings and Appeals conduct the hearing 
          on the record?
1241.73 How may I appeal the Administrative Law Judge's decision?
1241.74 May I seek judicial review of the decision of the Interior Board 
          of Land Appeals?
1241.75 When must I pay the penalty?
1241.76 Can ONRR reduce my penalty once it is assessed?
1241.77 How may ONRR collect the penalty?

                           Criminal Penalties

1241.80 May the United States criminally prosecute me for violations 
          under Federal and Indian oil and gas leases?

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal [Reserved]

Subpart I--OCS Sulfur [Reserved]

    Authority: 25 U.S.C. 396 et seq., 396a et seq., 2101 et seq.; 30 
U.S.C. 181 et seq., 351 et seq., 1001 et seq., 1701 et seq.; 43 U.S.C. 
1301 et seq., 1331 et seq., 1801 et seq.

Subpart A--General Provisions [Reserved]

[[Page 928]]



      Subpart B_Penalties for Federal and Indian Oil and Gas Leases

    Source: 64 FR 26251, May 13, 1999, unless otherwise noted. 
Redesignated at 75 FR 61087, Oct. 4, 2010.

                               Definitions



Sec. 1241.50  What definitions apply to this subpart?

    The terms used in this subpart have the same meaning as in 30 U.S.C. 
1702.

                   Penalties After a Period To Correct



Sec. 1241.51  What may Office of Natural Resources Revenue (ONRR) do if I 

violate a statute, regulation, order, or lease term relating to a Federal or 

Indian oil and gas lease?

    (a) If we believe that you have not followed any requirement of a 
statute, regulation, order, or terms of a lease for any Federal or 
Indian oil or gas lease, we may send you a Notice of Noncompliance 
telling you what the violation is and what you need to do to correct it 
to avoid civil penalties under 30 U.S.C. 1719(a) and (b).
    (b) We will serve the Notice of Noncompliance by registered mail or 
personal service using your address of record as specified under subpart 
H of part 1218.

[64 FR 26251, May 13, 1999, as amended at 71 FR 51752, Aug. 31, 2006]



Sec. 1241.52  What if I correct the violation?

    The matter will be closed if you correct all of the violations 
identified in the Notice of Noncompliance within 20 days after you 
receive the Notice (or within a longer time period specified in the 
Notice).



Sec. 1241.53  What if I do not correct the violation?

    (a) We may send you a Notice of Civil Penalty if you do not correct 
all of the violations identified in the Notice of Noncompliance within 
20 days after you receive the Notice of Noncompliance (or within a 
longer time period specified in that Notice). The Notice of Civil 
Penalty will tell you how much penalty you must pay. The penalty may be 
up to $500 per day, beginning with the date of the Notice of 
Noncompliance, for each violation identified in the Notice of 
Noncompliance for as long as you do not correct the violations.
    (b) If you do not correct all of the violations identified in the 
Notice of Noncompliance within 40 days after you receive the Notice of 
Noncompliance (or 20 days following the expiration of a longer time 
period specified in that Notice), we may increase the penalty to up to 
$5,000 per day, beginning with the date of the Notice of Noncompliance, 
for each violation for as long as you do not correct the violations.



Sec. 1241.54  How may I request a hearing on the record on a Notice of 

Noncompliance?

    You may request a hearing on the record on a Notice of Noncompliance 
by filing a request within 30 days of the date you received the Notice 
of Noncompliance with the Hearings Division (Departmental), Office of 
Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy 
Street, Arlington, Virginia 22203. You may do this regardless of whether 
you correct the violations identified in the Notice of Noncompliance.

[64 FR 26251, May 13, 1999, as amended at 67 FR 19112, Apr. 18, 2002]



Sec. 1241.55  Does my request for a hearing on the record affect the 

penalties?

    (a) If you do not correct the violations identified in the Notice of 
Noncompliance, the penalties will continue to accrue even if you request 
a hearing on the record.
    (b) You may petition the Hearings Division (Departmental) of the 
Office of Hearings and Appeals, to stay the accrual of penalties pending 
the hearing on the record and a decision by the Administrative Law Judge 
under Sec. 1241.72.
    (1) You must file your petition within 45 calendar days of receiving 
the Notice of Noncompliance.
    (2) To stay the accrual of penalties, you must post a bond or other 
surety instrument using the same standards and requirements as 
prescribed in 30

[[Page 929]]

CFR part 243, subpart B, or demonstrate financial solvency using the 
same standards and requirements as prescribed in 30 CFR part 243, 
subpart C, for the principal amount of any unpaid amounts due that are 
the subject of the Notice of Noncompliance, including interest thereon, 
plus the amount of any penalties accrued before the date a stay becomes 
effective.
    (3) The Hearings Division will grant or deny the petition under 43 
CFR 4.21(b).



Sec. 1241.56  May I request a hearing on the record regarding the amount of a 

civil penalty if I did not request a hearing on the Notice of Noncompliance?

    (a) You may request a hearing on the record to challenge only the 
amount of a civil penalty when you receive a Notice of Civil Penalty, if 
you did not previously request a hearing on the record under Sec. 
1241.54. If you did not request a hearing on the record on the Notice of 
Noncompliance under Sec. 1241.54, you may not contest your underlying 
liability for civil penalties.
    (b) You must file your request within 10 days after you receive the 
Notice of Civil Penalty with the Hearings Division (Departmental), 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, Virginia 22203.

[64 FR 26251, May 13, 1999, as amended at 67 FR 19113, Apr. 18, 2002]

                  Penalties Without a Period To Correct



Sec. 1241.60  May I be subject to penalties without prior notice and an 

opportunity to correct?

    The Federal Oil and Gas Royalty Management Act sets out several 
specific violations for which penalties accrue without an opportunity to 
first correct the violation.
    (a) Under 30 U.S.C. 1719(c), you may be subject to penalties of up 
to $10,000 per day per violation for each day the violation continues if 
you:
    (1) Knowingly or willfully fail to make any royalty payment by the 
date specified by statute, regulation, order or terms of the lease; or
    (2) Fail or refuse to permit lawful entry, inspection, or audit.
    (b) Under 30 U.S.C. 1719(d), you may be subject to civil penalties 
of up to $25,000 per day for each day each violation continues if you 
knowingly or willfully prepare, maintain, or submit false, inaccurate, 
or misleading reports, notices, affidavits, records, data, or other 
written information.

[64 FR 26251, May 13, 1999, as amended at 76 FR 38561, July 1, 2011]



Sec. 1241.61  How will ONRR inform me of violations without a period to 

correct?

    We will inform you of any violation, without a period to correct, by 
issuing a Notice of Noncompliance and Civil Penalty explaining the 
violation, how to correct it, and the penalty assessment. We will serve 
the Notice of Noncompliance and Civil Penalty by registered mail or 
personal service using your address of record as specified under subpart 
H of part 1218.

[71 FR 51752, Aug. 31, 2006]



Sec. 1241.62  How may I request a hearing on the record on a Notice of 

Noncompliance regarding violations without a period to correct?

    You may request a hearing on the record of a Notice of Noncompliance 
regarding violations without a period to correct by filing a request 
within 30 days after you receive the Notice of Noncompliance with the 
Hearings Division (Departmental), Office of Hearings and Appeals, U.S. 
Department of the Interior, 801 North Quincy Street, Arlington, Virginia 
22203. You may do this regardless of whether you correct the violations 
identified in the Notice of Noncompliance.

[64 FR 26251, May 13, 1999, as amended at 67 FR 19113, Apr. 18, 2002]



Sec. 1241.63  Does my request for a hearing on the record affect the 

penalties?

    (a) If you do not correct the violations identified in the Notice of 
Noncompliance regarding violations without a period to correct, the 
penalties will continue to accrue even if you request a hearing on the 
record.
    (b) You may ask the Hearings Division (Departmental) to stay the 
accrual of penalties pending the hearing

[[Page 930]]

on the record and a decision by the Administrative Law Judge under Sec. 
1241.72.
    (1) You must file your petition within 45 calendar days after you 
receive the Notice of Noncompliance.
    (2) To stay the accrual of penalties, you must post a bond or other 
surety instrument using the same standards and requirements as 
prescribed in 30 CFR part 1243, subpart B, or demonstrate financial 
solvency using the same standards and requirements as prescribed in 30 
CFR part 1243, subpart C, for the principal amount of any unpaid amounts 
due that are the subject of the Notice of Noncompliance, including 
interest thereon, plus the amount of any penalties accrued before the 
date a stay becomes effective.
    (3) The Hearings Division will grant or deny the petition under 43 
CFR 4.21(b).



Sec. 1241.64  May I request a hearing on the record regarding the amount of a 

civil penalty if I did not request a hearing on the Notice of Noncompliance?

    (a) You may request a hearing on the record to challenge only the 
amount of a civil penalty when you receive a Notice of Civil Penalty 
regarding violations without a period to correct, if you did not 
previously request a hearing on the record under Sec. 1241.62. If you 
did not request a hearing on the record on the Notice of Noncompliance 
under Sec. 1241.62, you may not contest your underlying liability for 
civil penalties.
    (b) You must file your request within 10 days after you receive 
Notice of Civil Penalty with the Hearings Division (Departmental), 
Office of Hearings and Appeals, U.S. Department of the Interior, 801 
North Quincy Street, Arlington, Virginia 22203.

[64 FR 26251, May 13, 1999, as amended at 67 FR 19113, Apr. 18, 2002]

                           General Provisions



Sec. 1241.70  How does ONRR decide what the amount of the penalty should be?

    We determine the amount of the penalty by considering the severity 
of the violations, your history of compliance, and if you are a small 
business.



Sec. 1241.71  Does the penalty affect whether I owe interest?

    (a) The penalties under this part are in addition to interest you 
may owe on any underlying underpayments or unpaid debt.
    (b) If you do not pay the penalty by the date required under Sec. 
1241.75(d), ONRR will assess you late payment interest on the penalty 
amount at the same rate interest is assessed under 30 CFR 1218.54.



Sec. 1241.72  How will the Office of Hearings and Appeals conduct the hearing 

on the record?

    If you request a hearing on the record under Sec. Sec. 1241.54, 
1241.56, 1241.62 or 1241.64, the hearing will be conducted by a 
Departmental Administrative Law Judge from the Office of Hearings and 
Appeals. After the hearing, the Administrative Law Judge will issue a 
decision in accordance with the evidence presented and applicable law.



Sec. 1241.73  How may I appeal the Administrative Law Judge's decision?

    If you are adversely affected by the Administrative Law Judge's 
decision, you may appeal that decision to the Interior Board of Land 
Appeals under 43 CFR part 4, subpart E.



Sec. 1241.74  May I seek judicial review of the decision of the Interior Board 

of Land Appeals?

    Under 30 U.S.C. 1719(j), you may seek judicial review of the 
decision of the Interior Board of Land Appeals. A suit for judicial 
review in the District Court will be barred unless filed within 90 days 
after the final order.



Sec. 1241.75  When must I pay the penalty?

    (a) You must pay the amount of the Notice of Civil Penalty issued 
under Sec. Sec. 1241.53 or 1241.61, if you do not request a hearing on 
the record under Sec. 1241.54, Sec. 1241.56, Sec. 1241.62, or Sec. 
1241.64.
    (b) If you request a hearing on the record under Sec. 1241.54, 
Sec. 1241.56, Sec. 1241.62, or Sec. 1241.64, but you do not appeal 
the determination of the Administrative Law Judge to the Interior Board 
of Land Appeals under Sec. 1241.73, you must pay the amount assessed by 
the Administrative Law Judge.

[[Page 931]]

    (c) If you appeal the determination of the Administrative Law Judge 
to the Interior Board of Land Appeals, you must pay the amount assessed 
in the IBLA decision.
    (d) You must pay the penalty assessed within 40 days after:
    (1) You received the Notice of Civil Penalty, if you did not request 
a hearing on the record under either Sec. 1241.54, Sec. 1241.56, Sec. 
1241.62, or Sec. 1241.64;
    (2) You received an Administrative Law Judge's decision under Sec. 
1241.72, if you obtained a stay of the accrual of penalties pending the 
hearing on the record under Sec. 1241.55(b) or Sec. 1241.63(b) and did 
not appeal the Administrative Law Judge's determination to the IBLA 
under Sec. 1241.73;
    (3) You received an IBLA decision under Sec. 1241.73 if the IBLA 
continued the stay of accrual of penalties pending its decision and you 
did not seek judicial review of the IBLA's decision; or
    (4) A final non-appealable judgment of a court of competent 
jurisdiction is entered, if you sought judicial review of the IBLA's 
decision and the Department or the appropriate court suspended 
compliance with the IBLA's decision pending the adjudication of the 
case.
    (e) If you do not pay, that amount is subject to collection under 
the provisions of Sec. 1241.77.



Sec. 1241.76  Can ONRR reduce my penalty once it is assessed?

    Under 30 U.S.C. 1719(g), the Director or his or her delegate may 
compromise or reduce civil penalties assessed under this part.



Sec. 1241.77  How may ONRR collect the penalty?

    (a) ONRR may use all available means to collect the penalty 
including, but not limited to:
    (1) Requiring the lease surety, for amounts owed by lessees, to pay 
the penalty;
    (2) Deducting the amount of the penalty from any sums the United 
States owes to you; and
    (3) Using judicial process to compel your payment under 30 U.S.C. 
1719(k).
    (b) If the Department uses judicial process, or if you seek judicial 
review under Sec. 1241.74 and the court upholds assessment of a 
penalty, the court shall have jurisdiction to award the amount assessed 
plus interest assessed from the date of the expiration of the 90-day 
period referred to in Sec. 1241.74. The amount of any penalty, as 
finally determined, may be deducted from any sum owing to you by the 
United States.

                           Criminal Penalties



Sec. 1241.80  May the United States criminally prosecute me for violations 

under Federal and Indian oil and gas leases?

    If you commit an act for which a civil penalty is provided at 30 
U.S.C. 1719(d) and Sec. 1241.60(b), the United States may pursue 
criminal penalties as provided at 30 U.S.C. 1720, in addition to any 
authority for prosecution under other statutes.

Subpart C--Federal and Indian Oil [Reserved]

Subpart D--Federal and Indian Gas [Reserved]

Subpart E--Solid Minerals, General [Reserved]

Subpart F--Coal [Reserved]

Subpart G--Other Solid Minerals [Reserved]

Subpart H--Geothermal [Reserved]

Subpart I--OCS Sulfur [Reserved]



PART 1243_SUSPENSIONS PENDING APPEAL AND BONDING_MINERALS REVENUE MANAGEMENT--

Table of Contents



                      Subpart A_General Provisions

Sec.
1243.1 What is the purpose of this part?
1243.2 What leases are subject to this part?
1243.3 What definitions apply to this part?
1243.4 How do I suspend compliance with an order?
1243.5 May another person post a bond or other surety instrument or 
          demonstrate financial solvency on my behalf?

[[Page 932]]

1243.6 When must I or another person meet the bonding or financial 
          solvency requirements under this part?
1243.7 What must a person do when posting a bond or other surety 
          instrument or demonstrating financial solvency on behalf of an 
          appellant?
1243.8 When will ONRR suspend my obligation to comply with an order?
1243.9 Will ONRR continue to suspend my obligation to comply with an 
          order if I seek judicial review in a Federal court?
1243.10 When will ONRR collect against a bond or other surety instrument 
          or a person demonstrating financial solvency?
1243.11 May I appeal the ONRR bond-approving officer's determination of 
          my surety amount or financial solvency?
1243.12 May I substitute a demonstration of financial solvency for a 
          bond posted before the effective date of this rule?

                     Subpart B_Bonding Requirements

1243.100 What standards must my ONRR-specified surety instrument meet?
1243.101 How will ONRR determine the amount of my bond or other surety 
          instrument?

                Subpart C_Financial Solvency Requirements

1243.200 How do I demonstrate financial solvency?
1243.201 How will ONRR determine if I am financially solvent?
1243.202 When will ONRR monitor my financial solvency?

    Authority: 5 U.S.C. 301 et seq.; 25 U.S.C. 396 et seq., 396a et 
seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq., 
1701 et seq.; 31 U.S.C. 9701; 43 U.S.C. 1301 et seq., 1331 et seq., and 
1801 et seq.

    Source: 64 FR 26254, May 13, 1999, unless otherwise noted. 
Redesignated at 75 FR 61087, Oct. 4, 2010.



                      Subpart A_General Provisions



Sec. 1243.1  What is the purpose of this part?

    This part applies to you if you are a lessee or recipient of an 
order. This part explains:
    (a) How you may suspend compliance with an order that you (or your 
designee if you are a lessee) have appealed under 30 CFR part 290 in 
effect prior to May 13, 1999 and contained in the 30 CFR, parts 200 to 
699, edition revised as of July 1, 1998, or under 30 CFR part 290, 
subpart b; and
    (b) When you or another person acting on your behalf must submit a 
bond or other surety or demonstrate financial solvency.



Sec. 1243.2  What leases are subject to this part?

    This part applies to all Federal mineral leases onshore and on the 
Outer Continental Shelf (OCS), and to all federally-administered mineral 
leases on Indian tribal and individual Indian mineral owners' lands.



Sec. 1243.3  What definitions apply to this part?

    Assessment means any fee or charge levied or imposed by the 
Secretary or a delegated State other than:
    (1) The principal amount of any royalty, minimum royalty, rental, 
bonus, net profit share or proceed of sale;
    (2) Any interest; or
    (3) Any civil or criminal penalty.
    Designee means the person designated by a lessee under Sec. 1218.52 
of this title to make all or part of the royalty or other payments due 
on a lease on the lessee's behalf.
    Lessee means any person to whom the United States, or the United 
States on behalf of an Indian tribe or individual Indian mineral owner, 
issues a lease, or any person to whom all or part of the lessee's 
interest or operating rights in a lease has been assigned.
    ONRR bond-approving officer means the Associate Director for 
Minerals Revenue Management or an official to whom the Associate 
Director delegates that responsibility.
    ONRR-specified surety instrument means an ONRR-specified 
administrative appeal bond, an ONRR-specified irrevocable letter of 
credit, a Treasury book-entry bond or note, or a financial institution 
book-entry certificate of deposit.
    Notice of order means the notice that ONRR or a delegated State 
issues to a lessee that informs the lessee that ONRR or the delegated 
State has issued an order to the lessee's designee.
    Order means an order appealable under 30 CFR part 290 in effect 
prior to May 13, 1999 and contained in the 30 CFR, parts 200 to 699, 
edition revised as of July 1, 1998, under 30 CFR part 290 subpart B, or 
under 30 CFR part 1208.

[[Page 933]]

    Person means any individual, firm, corporation, association, 
partnership, consortium, or joint venture.

[64 FR 26254, May 13, 1999, as amended at 67 FR 19113, Apr. 18, 2002]



Sec. 1243.4  How do I suspend compliance with an order?

    (a) If you timely appeal an order, and if that order or portion of 
that order:
    (1) Requires you to make a payment, and you want to suspend 
compliance with that order, you must post a bond or other surety 
instrument or demonstrate financial solvency under this part, except as 
provided in paragraph (b) of this section; or
    (2) Does not require you to make a payment, compliance with that 
order is suspended when you meet all requirements to file that appeal.
    (b) You need not meet the requirements of paragraph (a) of this 
section if:
    (1) The order is an assessment; or
    (2) Another person agrees to fulfill these requirements on your 
behalf under Sec. 1243.5.



Sec. 1243.5  May another person post a bond or other surety instrument or 

demonstrate financial solvency on my behalf?

    Any other person, including a designee, payor, or affiliate, may 
post a bond or other surety instrument or demonstrate financial solvency 
under this part on behalf of an appellant required to post a bond or 
other surety instrument under Sec. 1243.4(a)(1).



Sec. 1243.6  When must I or another person meet the bonding or financial 

solvency requirements under this part?

    If you must meet the bonding or financial solvency requirements 
under Sec. 1243.4(a)(1), or if another person is meeting your bonding 
or financial solvency requirements, then either you or the other person 
must post a bond or other surety instrument or demonstrate financial 
solvency within 60 days after you receive the order or the Notice of 
Order.



Sec. 1243.7  What must a person do when posting a bond or other surety 

instrument or demonstrating financial solvency on behalf of an appellant?

    If you assume an appellant's responsibility to post a bond or other 
surety instrument or demonstrate financial solvency under Sec. 1243.5, 
you:
    (a) Must notify ONRR in writing at the address specified in Sec. 
1243.200(a) that you are assuming the appellant's responsibility under 
this part;
    (b) May not assert that you are not otherwise liable for royalties 
or other payments under 30 U.S.C. 1712(a), or any other theory, as a 
defense if ONRR calls your bond or requires you to pay based on your 
demonstration of financial solvency; and
    (c) May end your voluntarily-assumed responsibility for posting a 
bond or other surety instrument only after the appellant under this part 
either:
    (1) Pays or posts a bond or other surety instrument; or
    (2) Demonstrates financial solvency.



Sec. 1243.8  When will ONRR suspend my obligation to comply with an order?

    (a) Federal leases.Subject to paragraph (d) of this section, if you 
appeal an order regarding the payment and reporting of royalties and 
other payments due from Federal mineral leases onshore or on the Outer 
Continental Shelf (OCS), and:
    (1) If the amount under appeal is less than $10,000 or does not 
require payment of a specified amount, ONRR will suspend your obligation 
to comply with the order. ONRR will use the lease surety posted with the 
Bureau of Land Management for onshore leases, and BOEMRE for OCS leases, 
as collateral for the obligation; or
    (2) If the amount under appeal is $10,000 or more, ONRR will suspend 
your obligation to comply with that order if you:
    (i) Submit an ONRR-specified surety instrument under subpart B of 
this part within a time period ONRR prescribes; or
    (ii) Demonstrate financial solvency under subpart C.
    (b) Indian leases.Subject to paragraph (d) of this section, if you 
appeal an

[[Page 934]]

order regarding the payment and reporting of royalties and other 
payments due from Indian mineral leases subject to this part, and:
    (1) If the amount under appeal is less than $1,000 or does not 
require payment, ONRR will suspend your obligation to comply with the 
order. ONRR will use the lease surety posted with the Bureau of Indian 
Affairs as collateral for the obligation; or
    (2) If the amount under appeal is $1,000 or more, ONRR will suspend 
your obligation to comply with that order if you submit an ONRR-
specified surety instrument under subpart B of this part within a time 
period ONRR prescribes.
    (c) Nothing in this part prohibits you from paying any demanded 
amount or complying with any other requirement pending appeal. However, 
voluntarily paying any demanded amount or otherwise complying with any 
other requirement when suspension of an order is otherwise available 
under these rules does not create judicially reviewable final agency 
action under 5 U.S.C. 704.
    (d) Regardless of the amount under appeal, ONRR may inform you that 
it will not suspend your obligation to comply with the order under 
paragraph (a) or (b) of this section because suspension would harm the 
interests of the United States or the Indian lessor.



Sec. 1243.9  Will ONRR continue to suspend my obligation to comply with an 

order if I seek judicial review in a Federal court?

    (a) If you seek judicial review of an IBLA decision or other final 
action of the Department of the Interior regarding an order, ONRR will 
suspend your obligation to comply with that order pending judicial 
review if you continue to meet the requirements of this part.
    (b) Notwithstanding the provisions of paragraph (a) of this section, 
ONRR may decide that it will not suspend your obligation to comply with 
an order. ONRR will notify you in writing of that decision and the 
reasons for it.



Sec. 1243.10  When will ONRR collect against a bond or other surety instrument 

or a person demonstrating financial solvency?

    (a) This section applies to you if, for an appeal of an order under 
this part, you:
    (1) Maintain a bond or an ONRR-specified surety instrument on your 
own behalf or for another person; or
    (2) Have demonstrated financial solvency on your own behalf or for 
another person.
    (b) ONRR may initiate collection against the bond or other surety 
instrument or the person demonstrating financial solvency:
    (1) If the ONRR Director or the Deputy Commissioner of Indian 
Affairs decides your appeal adversely to you and you do not pay the 
amount due or appeal that decision to the IBLA under 43 CFR part 4, 
subpart E;
    (2) If the IBLA, the Director of the Office of Hearings and Appeals, 
an Assistant Secretary, or the Secretary decides your appeal adversely 
to you, and you do not pay the amount due or pursue judicial review 
within 90 days of the decision;
    (3) If a court of competent jurisdiction issues a final non-
appealable decision adverse to you, and you do not pay the amount due 
within 30 days of the decision;
    (4) If you do not increase the amount of your bond or other surety 
instrument as required under Sec. 1243.101(b), or otherwise fail to 
maintain an adequate surety instrument in effect, and you do not pay the 
amount due under the order within 30 days of notice from ONRR under 
Sec. 1243.101(b);
    (5) If the obligation to comply with an order or decision is not 
suspended under Sec. 1243.8 or Sec. 1243.9 and you do not pay the 
amount required under the order or decision; or
    (6) If the ONRR bond-approving officer determines that you are no 
longer financially solvent under Sec. 1243.202(c), and you do not pay 
the order amount or post a bond or other ONRR-specified surety 
instrument under subpart B within 30 days of that determination.

[[Page 935]]



Sec. 1243.11  May I appeal the ONRR bond-approving officer's determination of 

my surety amount or financial solvency?

    Any decision on your surety amount under subpart B or your financial 
solvency under subpart C is final and is not subject to appeal.



Sec. 1243.12  May I substitute a demonstration of financial solvency for a 

bond posted before the effective date of this rule?

    If you appealed an order before June 14, 1999 and you submitted an 
ONRR-specified surety instrument to suspend compliance with that order, 
you may replace the surety with a demonstration of financial solvency 
under this part at an administratively convenient time, such as when the 
surety instrument is due for renewal.



                     Subpart B_Bonding Requirements



Sec. 1243.100  What standards must my ONRR-specified surety instrument meet?

    (a) An ONRR-specified surety instrument must be in a form specified 
in ONRR instructions. ONRR will give you written information and 
standard forms for ONRR-specified surety instrument requirements.
    (b) ONRR will use a bank-rating service to determine whether a 
financial institution has an acceptable rating to provide a surety 
instrument adequate to indemnify the lessor from loss or damage.
    (1) Administrative appeal bonds must be issued by a qualified surety 
company which the Department of the Treasury has approved.
    (2) Irrevocable letters of credit or certificates of deposit must be 
from a financial institution acceptable to ONRR with a minimum 1-year 
period of coverage subject to automatic renewal up to 5 years.



Sec. 1243.101  How will ONRR determine the amount of my bond or other surety 

instrument?

    (a) The ONRR bond-approving officer may approve your surety if he or 
she determines that the amount is adequate to guarantee payment. The 
amount of your surety may vary depending on the form of the surety and 
how long the surety is effective.
    (1) The amount of the ONRR-specified surety instrument must include 
the principal amount owed under the order plus any accrued interest we 
determine is owed plus projected interest for a 1-year period.
    (2) Treasury book-entry bond or note amounts must be equal to at 
least 120 percent of the required surety amount.
    (b) If your appeal is not decided within 1 year from the filing 
date, you must increase the surety amount to cover additional estimated 
interest for another 1-year period. You must continue to do this 
annually on the date your appeal was filed. We will determine the 
additional estimated interest and notify you of the amount so you can 
amend your surety instrument.
    (c) You may submit a single surety instrument that covers multiple 
appeals. You may change the instrument to add new amounts under appeal 
or remove amounts that have been adjudicated in your favor or that you 
have paid if you:
    (1) Amend the single surety instrument annually on the date you 
filed your first appeal; and
    (2) Submit a separate surety instrument for new amounts under appeal 
until you amend the instrument to cover the new appeals.



                Subpart C_Financial Solvency Requirements



Sec. 1243.200  How do I demonstrate financial solvency?

    (a) To demonstrate financial solvency under this part, you must 
submit an audited consolidated balance sheet, and, if requested by the 
ONRR bond-approving officer, up to 3 years of tax returns to the ONRR, 
Debt Collection Section using:
    (1) The U.S. Postal Service or private delivery at P.O. Box 5760, MS 
3031, Denver, CO 80217-5760; or
    (2) Courier or overnight delivery at MS 3031, Denver Federal Center, 
Bldg. 85, Room A-212, Denver, CO 80225-0165.
    (b) You must submit an audited consolidated balance sheet annually, 
and, if requested, additional annual tax returns on the date ONRR first 
determined that you demonstrated financial

[[Page 936]]

solvency as long as you have active appeals, or whenever ONRR requests.
    (c) If you demonstrate financial solvency in the current calendar 
year, you are not required to redemonstrate financial solvency for new 
appeals of orders during that calendar year unless you file for 
protection under any provision of the U.S. Bankruptcy Code (Title 11 of 
the United States Code), or ONRR notifies you that you must 
redemonstrate financial solvency.



Sec. 1243.201  How will ONRR determine if I am financially solvent?

    (a) The ONRR bond-approving officer will determine your financial 
solvency by examining your total net worth, including, as appropriate, 
the net worth of your affiliated entities.
    (b) If your net worth, minus the amount we would require as surety 
under subpart B for all orders you have appealed is greater than $300 
million, you are presumptively deemed financially solvent, and we will 
not require you to post a bond or other surety instrument.
    (c) If your net worth, minus the amount we would require as surety 
under subpart B for all orders you have appealed is less than $300 
million, you must submit the following to the ONRR Debt Collection 
Section by one of the methods in Sec. 1243.200(a):
    (1) A written request asking us to consult a business-information, 
or credit-reporting service or program to determine your financial 
solvency; and
    (2) A nonrefundable $50 processing fee:
    (i) You must pay the processing fee to us following the requirements 
for making payments found in 30 CFR 1218.51. You are not required to use 
Electronic Funds Transfer (EFT) for these payments;
    (ii) You must submit the fee with your request under paragraph 
(c)(1) of this section, and then annually on the date we first 
determined that you demonstrated financial solvency, as long as you are 
not able to demonstrate financial solvency under paragraph (a) of this 
section and you have active appeals.
    (d) If you request that we consult a business-information or credit-
reporting service or program under paragraph (c) of this section:
    (1) We will use criteria similar to that which a potential creditor 
would use to lend an amount equal to the bond or other surety instrument 
we would require under subpart B;
    (2) For us to consider you financially solvent, the business-
information or credit-reporting service or program must demonstrate your 
degree of risk as low to moderate:
    (i) If our bond-approving officer determines that the business-
information or credit-reporting service or program information 
demonstrates your financial solvency to our satisfaction, our bond-
approving officer will not require you to post a bond or other surety 
instrument under subpart B;
    (ii) If our bond-approving officer determines that the business-
information or credit-reporting service or program information does not 
demonstrate your financial solvency to our satisfaction, our bond-
approving officer will require you to post a bond or other surety 
instrument under subpart B or pay the obligation.



Sec. 1243.202  When will ONRR monitor my financial solvency?

    (a) If you are presumptively financially solvent under Sec. 
1243.201(b), ONRR will determine your net worth as described under 
Sec. Sec. 1243.201(b) and (c) to evaluate your financial solvency at 
least annually on the date we first determined that you demonstrated 
financial solvency as long as you have active appeals and each time you 
appeal a new order.
    (b) If you ask us to consult a business-information or credit-
reporting service or program under Sec. 1243.201(c), we will consult a 
service or program annually as long as you have active appeals and each 
time you appeal a new order.
    (c) If our bond-approving officer determines that you are no longer 
financially solvent, you must post a bond or other ONRR-specified surety 
instrument under subpart B.

[[Page 937]]



                          SUBCHAPTER B_APPEALS



Part 1290_APPEAL PROCEDURES--Table of Contents



Sec.
1290.100 What is the purpose of this subpart?
1290.101 What leases are subject to this subpart?
1290.102 What definitions apply to this subpart?
1290.103 Who may file an appeal?
1290.104 What may I not appeal under this subpart?
1290.105 How do I appeal an order?
1290.106 How do lessees join a designee's appeal and how does joinder 
          affect the appeal?
1290.107 Where are the rules concerning the effect of the Department not 
          issuing a decision in my appeal within the statutory time 
          frame?
1290.108 How do I appeal to the IBLA?
1290.109 How do I request an extension of time?
1290.110 How do I exhaust administrative remedies?

    Authority: 5 U.S.C. 301 et seq.; 43 U.S.C. 1331.

    Source: 64 FR 26257, May 13, 1999, unless otherwise noted. 
Redesignated at 75 FR 61087, Oct. 4, 2010.



Sec. 1290.100  What is the purpose of this subpart?

    This subpart tells you how to appeal Office of Natural Resources 
Revenue (ONRR) or delegated State orders concerning reporting to the 
Minerals Revenue Management (MRM) and the payment of royalties and other 
payments due under leases subject to this subpart.

[71 FR 51752, Aug. 31, 2006]



Sec. 1290.101  What leases are subject to this subpart?

    This subpart applies to:
    (a) All Federal mineral leases onshore and on the Outer Continental 
Shelf (OCS); and
    (b) All federally-administered mineral leases on Indian tribal and 
individual Indian mineral owners' lands, regardless of the statutory 
authority under which the lease was issued or maintained.



Sec. 1290.102  What definitions apply to this subpart?

    Assessment means any fee or charge levied or imposed by the 
Secretary or a delegated State other than:
    (1) The principal amount of any royalty, minimum royalty, rental, 
bonus, net profit share or proceed of sale;
    (2) Any interest; or
    (3) Any civil or criminal penalty.
    Delegated State means a State to which ONRR has delegated authority 
to perform royalty management functions under an agreement or agreements 
under regulations at 30 CFR part 1227.
    Designee means the person designated by a lessee under 30 CFR 
1218.52 to make all or part of the royalty or other payments due on a 
lease on the lessee's behalf.
    IBLA means the Interior Board of Land Appeals.
    Indian lessor means an Indian tribe or individual Indian mineral 
owner with a beneficial or restricted interest in a property that is 
subject to a lease issued or administered by the Secretary on behalf of 
the tribe or individual Indian mineral owner.
    Lease means any agreement authorizing exploration for or extraction 
of any mineral, regardless of whether the instrument is expressly 
denominated as a ``lease,'' including any:
    (1) Contract;
    (2) Net profit share arrangement;
    (3) Joint venture; or
    (4) Agreement the Secretary approves under the Indian Mineral 
Development Act, 25 U.S.C. 2101 et seq.
    Lessee means any person to whom the United States, or the United 
States on behalf of an Indian tribe or individual Indian mineral owner, 
issues a lease subject to this subpart, or any person to whom all or 
part of the lessee's interest or operating rights in a lease subject to 
this subpart has been assigned.
    Notice of Order means the notice that ONRR or a delegated State 
issues to a lessee that informs the lessee that ONRR or the delegated 
State has issued an order to the lessee's designee.
    Obligation means:

[[Page 938]]

    (1) A lessee's, designee's or payor's duty to:
    (i) Deliver oil or gas royalty in kind; or
    (ii) Make a lease-related payment, including royalty, minimum 
royalty, rental, bonus, net profit share, proceeds of sale, interest, 
penalty, civil penalty, or assessment; and
    (2) The Secretary's duty to:
    (i) Take oil or gas royalty-in-kind; or
    (ii) Make a lease-related payment, refund, offset, or credit, 
including royalty, minimum royalty, rental, bonus, net profit share, 
proceeds of sale, or interest.
    (3) The obligations identified in paragraphs (1)(i) and (2)(i) of 
this definition are nonmonetary obligations. The obligations identified 
in paragraphs (1)(ii) and (2)(ii), including the requirement to compute 
the amount of such obligations, are monetary obligations.
    Order, for purposes of this subpart only, means any document issued 
by the ONRR Director, or a delegated state that contains 
mandatory[smc2] or ordering language that requires the 
recipient to do any of the following for any lease subject to this 
subpart: report, compute, or pay royalties or other obligations, report 
production, or provide other information.
    (1) Order includes:
    (i) An order to pay or to compute and pay; and
    (ii) An ONRR or delegated State decision to deny a lessee's, 
designee's, or payor's written request that asserts an obligation due 
the lessee, designee or payor.
    (2) Order does not include:
    (i) A non-binding request, information, or guidance, such as:
    (A) Advice or guidance on how to report or pay, including a 
valuation determination, unless it contains mandatory or ordering 
language; and
    (B) A policy determination;
    (ii) A subpoena;
    (iii) An order to pay that ONRR issues to a refiner or other person 
involved in disposition of royalty taken in kind; or
    (iv) A Notice of Noncompliance or a Notice of Civil Penalty issued 
under 30 U.S.C. 1719 and 30 CFR part 1241, or a decision of an 
administrative law judge or of the IBLA following a hearing on the 
record on a Notice of Noncompliance or Notice of Civil Penalty.
    Party means ONRR, any person who files a Notice of Appeal, and any 
person who files a Notice of Joinder in an appeal under this subpart.

[64 FR 26257, May 13, 1999, as amended at 71 FR 51752, Aug. 31, 2006]



Sec. 1290.103  Who may file an appeal?

    (a) If you receive an order that adversely affects you or your 
lessee, you may appeal that order except as provided under Sec. 
1290.104.
    (b) If you are a lessee and you receive a Notice of Order, and if 
you contest the order, you may either appeal the order or join in your 
designee's appeal under Sec. 1290.106.



Sec. 1290.104  What may I not appeal under this subpart?

    You may not appeal:
    (a) An action that is not an order, as defined in this subpart; or
    (b) A determination of the surety amount or financial solvency under 
30 CFR part 243, subparts B or C.



Sec. 1290.105  How do I appeal an order?

    (a) You may appeal an order to the Director, Office of Natural 
Resources Revenue (ONRR Director), by filing a Notice of Appeal in the 
office of the official issuing the order within 30 days from service of 
the order.
    (1) Within the same 30-day period, you must file in the office of 
the official issuing the order a statement of reasons or written 
arguments or briefs that include the arguments on the facts or laws that 
you believe justify reversal or modification of the order.
    (2) If you are a designee, when you file your Notice of Appeal you 
must serve your Notice of Appeal on the lessees for the leases in the 
order you appealed.
    (b) You may not request and will not receive an extension of time 
for filing the Notice of Appeal.
    (c) If the office of the official issuing the order does not receive 
the Notice of Appeal within the time provided in paragraph (a) of this 
section, the Notice of Appeal will be considered timely if the office of 
the official issuing the order receives:

[[Page 939]]

    (1) The Notice of Appeal not later than 10 days after the required 
filing date; and
    (2) The officer with whom the Notice of Appeal must be filed 
determines that the Notice of Appeal was transmitted to the proper 
office before the filing deadline in paragraph (a) of this section.
    (d) If the Notice of Appeal is filed after the grace period provided 
in paragraph (c) of this section and was not transmitted to the proper 
office before the filing deadline in paragraph (a) of this section, the 
ONRR Director will not consider the Notice of Appeal and the case will 
be closed.
    (e) The officer with whom the Notice of Appeal is filed will send 
the appeal and accompanying papers to the ONRR Director.
    (f) The ONRR Director will review the record and render a decision 
in the case.
    (g) If an order involves Indian leases, the Director, Bureau of 
Indian Affairs will exercise the functions vested in the ONRR Director.

[64 FR 26257, May 13, 1999, as amended at 76 FR 38561, July 1, 2011]



Sec. 1290.106  How do lessees join a designee's appeal and how does joinder 

affect the appeal?

    (a) If you are a lessee, and your designee files an appeal under 
Sec. 1290.103, you may join in that appeal within 30 days after you 
receive your designee's Notice of Appeal under Sec. 1290.105(a)(2) by 
filing a Notice of Joinder with the office or official that issued the 
order.
    (b) If you join in an appeal under paragraph (a) of this section, 
you are deemed to appeal the order jointly with the designee, but the 
designee must fulfill all requirements imposed on appellants under this 
subpart and 43 CFR part 4, subparts E and J. You may not file 
submissions or pleadings separately from the designee.
    (c) If you are a lessee and you neither appeal nor join in your 
designee's appeal under this section, your designee's actions with 
respect to the appeal and any decisions in the appeal bind you.
    (d) If you are a designee and you decide to discontinue 
participation in the appeal, you must serve written notice within 30 
days before the next submission or pleading is due on:
    (1) All lessees who have joined in the appeal under paragraph (a) of 
this section;
    (2) The office or officer with whom any subsequent submissions or 
pleadings must be filed, including the IBLA; and
    (3) All other parties to the appeal.
    (e) If you have joined in the appeal under paragraph (a) of this 
section, and if the designee notifies you under paragraph (d) of this 
section that it declines to further pursue the appeal, you become an 
appellant and must then meet all requirements of this subpart and 43 CFR 
part 4, subparts E and J, as the appellant.



Sec. 1290.107  Where are the rules concerning the effect of the Department not 

issuing a decision in my appeal within the statutory time frame?

    If your appeal involves monetary or nonmonetary obligations under 
Federal oil and gas leases, the rules concerning the effect of the 
Department not issuing a final decision in your appeal within the 33-
month period prescribed under 30 U.S.C. 1724(h) are located in 43 CFR 
part 4, subpart J.



Sec. 1290.108  How do I appeal to the IBLA?

    Any party to a case adversely affected by a final decision of the 
ONRR Director or the Director, Bureau of Indian Affairs under this 
subpart shall have a right of appeal to the IBLA under the procedures 
provided in 43 CFR part 4, subpart E.

[64 FR 26257, May 13, 1999, as amended at 76 FR 38561, July 1, 2011]



Sec. 1290.109  How do I request an extension of time?

    (a) If you are a party to an appeal under this subpart, and you need 
additional time after the appeal commences under 43 CFR 4.904 for any 
purpose:
    (1) You may obtain an extension of time under this section; and
    (2) You must submit a written request for an extension of time to:

[[Page 940]]

    (i) The office or official with whom you must file a document before 
the required filing date; or
    (ii) If you are not seeking an extension of time to file a document, 
to the office or official before whom the appeal is pending.
    (b) If you are an appellant, and if your appeal involves monetary or 
nonmonetary obligations under Federal oil and gas leases, you must agree 
in writing in your request to extend the period in which the Department 
must issue a final decision in your appeal under 30 U.S.C. 1724(h) and 
43 CFR 4.906, by the amount of time for which you are requesting an 
extension.
    (c) If you are any other party to an appeal involving monetary or 
nonmonetary obligations under Federal oil and gas leases, the office or 
official with whom you must file the request may require you to submit a 
written agreement signed by the appellant to extend the period in which 
the Department must issue a final decision in the appeal under 43 CFR 
4.906, by the amount of time for which you are requesting an extension.
    (d) The office or official with whom you must file your request may 
decline any request for an extension of time.
    (e) You must serve your request on all parties to the appeal.



Sec. 1290.110  How do I exhaust administrative remedies?

    (a) To exhaust administrative remedies, you must appeal an Office of 
Natural Resources Revenue (ONRR) or delegated State order:
    (1) To the ONRR Director (or the Director, Bureau of Indian Affairs 
when Indian lands are involved); and
    (2) Subsequently to the Interior Board of Land Appeals under 30 CFR 
part 1290, and 43 CFR part 4.
    (b) This section does not apply if an order was made effective by:
    (1) The Director;
    (2) The Assistant Secretary for Land and Minerals Management;
    (3) The Assistant Secretary for Indian Affairs; or
    (4) The Interior Board of Land Appeals under 43 CFR part 4.

[64 FR 50753, Sept. 20, 1999, as amended at 76 FR 38561, July 1, 2011]


[[Page 941]]



                              FINDING AIDS




  --------------------------------------------------------------------

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 943]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2011)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)

[[Page 944]]

       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)

[[Page 945]]

     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
     LXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 8200--8299)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 8700--8799)
    LXXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 9200--9299)

[[Page 946]]

     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)

[[Page 947]]

     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)

[[Page 948]]

       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)

[[Page 949]]

        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

[[Page 950]]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

[[Page 951]]

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)

[[Page 952]]

        II  Office of Assistant Secretary for Housing-Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)

[[Page 953]]

        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)

[[Page 954]]

      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Ocean Energy Management, Regulation, and 
                Enforcement, Department of the Interior (Parts 
                200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Departmnent of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)

[[Page 955]]

       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

[[Page 956]]

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)
        II  Armed Forces Retirement Home

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)

[[Page 957]]

        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)

[[Page 958]]

         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)

[[Page 959]]

       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Health and Human Services (Parts 300--399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)

[[Page 960]]

        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)

[[Page 961]]

         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 963]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2011)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture.     7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 964]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 965]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99

[[Page 966]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105

[[Page 967]]

  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V

[[Page 968]]

Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  MBureau of Ocean Energy Management,             30, II
       Regulation, and Enforcement
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29

[[Page 969]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Office of Workers' Compensation Programs        20, VII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture.       7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI

[[Page 970]]

  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Natural Resource Revenue, Office of               30, XII
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV

[[Page 971]]

Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
Special Inspector General for Iraq                5, LXXXVII
     Reconstruction
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
   and Water Commission, United States Section
[[Page 972]]

Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 973]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'' published in 
11 separate volumes.

                                  2001

30 CFR
                                                                   66 FR
                                                                    Page
Chapter VII
723 Authority citation revised.....................................58646
723.14 Table revised...............................................58646
723.15 (b) amended.................................................58646
756.14 (e) added...................................................39443
773 Technical correction...........................................16127
773.6 Technical correction.........................................16127
816 Authority citation revised.....................................14317
816.49 (a)(1), (9) introductory text, (ii), (11) introductory 
        text, (ii) and (c)(2) amended..............................14317
817 Authority citation revised.....................................14318
817.49 (a)(1), (9) introductory text, (ii), (11) introductory 
        text, (ii) and (c)(2)......................................14318
845 Authority citation revised.....................................58647
845.14 Table revised...............................................58647
845.15 (b) amended.................................................58647
870 Authority citation revised.....................................28636
870.15 (b) amended; (d)(1)(iv) revised.............................28636
870.17 Added.......................................................28636
904.15 Table amended...............................................42742
913.15 Table amended...............................................58375
914.15 Table amended...............................................57659
914.16 (jj), (kk), (ll) and (mm) added.............................57659
914.17 Heading and (b) revised.....................................42750
915.15 Table amended........................................66747, 64749
    (a) table amended..............................................66317
917.12 (b) added...................................................33023
917.15 (a) table amended...........................................33023
918.15 Table amended...............................................64749
920.15 Table amended........................................32746, 50829
920.16 (l) removed.................................................50829
925.12 Introductory text removed; (a), (b) and (c) revised; (d), 
        (e) and (f) added..........................................23604
925.15 Table amended...............................................23604
925.16 (b), (f)(1), (g), (p)(5), (9) through (12), (14), (16), 
        (18), (21), (q) introductory text, (2) and (u) removed; 
        (p) introductory text, (4) and (20) revised; (v) added.....23605
925.25 Table amended...............................................23605
926.15 Table amended........................................31533, 58381
931.15 Table amended................................................4673
934.15 Table amended.................................13020, 27459, 57662
936.15 Table amended...............................................23608
938.11 (i) removed.................................................57665
938.12 Added.......................................................67063
938.15 Table amended.................................42742, 57665, 67064
938.16 (p) removed.................................................42753
    (hhhh through (bbbbbb) added...................................67064
944.15 Table amended........................................20606, 62935
946.12 Heading revised; (c) added..................................43483
946.15 Table amended........................................43483, 62935
946.16 Removed.....................................................43483
948.10 Revised.....................................................67453
948.15 Table amended...............................................67454
948.16 (kkk) removed; (jjj) revised................................67454
948.20 Revised.....................................................67454

[[Page 974]]

                                  2002

30 CFR
                                                                   67 FR
                                                                    Page
Chapter VII
724.17 (b)(1) amended...............................................5204
846.17 (b)(1) amended...............................................5204
901.15 Table amended..........................................5207, 5212
904.12 Section heading amended.....................................35029
904.15 Table amended...............................................35029
904.25 Table amended...............................................35029
913.15 Table amended...............................................35035
913.17 Section heading revised.....................................35035
915.15 Table amended...............................................67524
915.25 Added.......................................................72379
916.15 Table amended................................................8716
917.12 (c) added...................................................70009
917.15 Table amended.................................21176, 30553, 41625
    Table amended...........................................41625, 67528
917.16 (c) removed..................................................5213
    (d)(1) and (f) removed.........................................39292
    (d)(5) removed.................................................41625
918.15 Table amended.........................................8719, 69129
924.15 Table amended...............................................71831
924.16 (i) and (l) removed.........................................71832
924.17 Heading revised.............................................71832
926.15 Table amended................................................6408
926.21 (a) removed.................................................41829
926.25 Table amended...............................................41828
931.15 Table amended...............................................46384
931.16 (e), (u) and (v) removed....................................46385
936.15 Table amended...............................................36516
938.15 Table amended...............................................67531
938.16 (gggg) removed..............................................67531
943.15 Table amended...............................................67534
944.15 Table amended...............................................67540
948.15 Table amended.................................21932, 37626, 71840
948.16 (a), (dd), (ee), (oo), (tt), (xx), (nnn), (ooo), (qqq), 
        (sss), (vvv), (zzz), (aaaa), (bbbb) and (ffff) through 
        (pppp) removed.............................................21932
950.15 Table amended...............................................67547
950.16 (ii) and (jj) removed.......................................67547

                                  2003

30 CFR
                                                                   68 FR
                                                                    Page
Chapter VII
707.5 Amended......................................................65625
875.15 (d) and (e) amended; (f) revised.............................9502
901.15 Table amended...............................................17548
913.15 Table amended...............................................40141
914.15 Table amended...............................................75422
916.12 Heading revised.............................................14326
916.15 Table amended...............................................14326
916.25 Table amended...............................................14326
917.12 (d) added....................................................2199
    (e) added......................................................42274
917.15 Table amended.........................................2199, 24647
    (a) table amended..............................................42274
917.16 (c)(2) and (o) removed.......................................2201
    (g) removed....................................................41913
    (d)(4) removed.................................................42274
    (d)(2) removed.................................................42277
    (k) removed....................................................75425
917.21 (d) added...................................................65843
920.15 Table amended........................................22604, 42281
925.17 Added.......................................................50948
925.18 Added.......................................................50949
925.19 Added.......................................................50949
926.15 Table amended...............................................46477
926.16 (e)(9) removed; (m) added...................................46477
934.15 Table amended........................................40147, 67804
935.15 Table amended...............................................57356
936.15 Table amended................................................2451
938.12 (b) added...................................................40154
938.15 Table amended.................................40154, 48798, 56776
938.16 (ss) removed................................................19744
    (fff) removed..................................................51449
    (hh), (kk), (vvv), (www), (xxx), (yyy), (zzz), (aaaa) and 
(bbbb) removed.....................................................56776
    (h) removed....................................................57814
943.15 Table amended........................................40157, 62519
946.15 Table amended...............................................53294
948.12 (g) added...................................................40167
    (d) added......................................................68738
948.15 Table amended...................24359, 38187, 40167, 67044, 68738
948.16 (nnn), (ooo), (sss) and (oooo) added........................10179
    (rrrr) through (zzzz), (bbbbb) through (eeeee), (ggggg), 
(hhhhh), (mmmmm), (nnnnn) and(qqqqq) removed.......................38188
    (nnn), (ooo) and (qqqq) removed; (sss) revised.................40167
    (a) added......................................................68738
950.12 Heading revised.............................................24652
    (a)(8) removed.................................................62523
950.15 Table amended........................................24652, 62523

                                  2004

30 CFR
                                                                   69 FR
                                                                    Page
Title 30 Nomenclature change.......................................18803
Chapter VII
870.12 (d) revised.................................................56130

[[Page 975]]

870.13 Heading revised; (a) through (d) redesignated as (a)(1) 
        through (4); new (a) amended; new (b) added................56130
913.10 (a) revised.................................................42870
913.20 (a) revised.................................................42870
913.25 (a) and (b) designation removed.............................42870
914.10 (a) revised.................................................55352
914.15 Table amended.................................55352, 58832, 69287
914.16 (f), (s) and (hh) through (mm) removed; (ff) added..........69287
914.25 (a) table amended...........................................55352
    (a) designation and (b) removed................................69287
915.15 Table amended...............................................30825
915.16 (b) added...................................................30826
917.15 Table amended........................................48787, 75839
917.16 (m) removed.................................................48787
917.17 Heading revised; (c) added..................................26503
    Heading revised; (a) added.....................................48787
920.15 Table amended.................................11515, 33850, 55355
925.17 Introductory text, (a), (c), (i) and (k) revised; (l), (m) 
        and (n) added..............................................19932
925.18 (a) and (e) removed; (b), (c) and (d) revised...............19932
    (c)(1), (2) and (3) added......................................29864
931.15 Table amended...............................................19325
934.15 Table amended................................................2666
935.15 Table amended...............................................57947
938.12 (a)(2), (3), (4), (7), (8), (9), (10) and (14) through (30) 
        removed....................................................71551
    (a)(1), (5), (6), (11), (12) and (13) revised..................71559
938.13 Added.......................................................71559
938.15 Table amended...............................................71551
938.16 (hhhh) through (bbbbbb) removed.............................71551
943.15 Table amended...............................................55358
946.16 Correctly removed; CFR correction...........................11314
948.15 Table amended...............................................33853
948.16 (aaaaa) removed.............................................33854

                                  2005

30 CFR
                                                                   70 FR
                                                                    Page
Chapter VII
723 Authority citation revised.....................................70700
723.14 Table amended...............................................70700
723.15 (b) amended.................................................70700
724 Authority citation revised.....................................70701
724.14 (b) amended.................................................70701
732.17 (f)(2), (h)(1), (8), (9), (12) and (13) revised; (h)(2)(iv) 
        amended; (h)(2)(v) removed.................................61206
845 Authority citation revised.....................................70701
845.14 Table revised...............................................70701
845.15 (b) amended.................................................70701
846 Authority citation revised.....................................70701
846.14 (b) amended.................................................70701
902.15 Table amended...............................................71394
902.16 (a)(2) through (13), (16), (17) and (b) removed.............71394
906.15 Table amended...............................................14999
913.15 Table amended........................................28824, 71400
915.15 Table amended...............................................22794
915.16 (a), (c), (d) and (e) removed...............................22795
917.15 Table amended...............................................22797
917.16 (i) removed.................................................22797
917.17 (c) amended.................................................11123
926.15 Table amended.........................................8018, 71242
936.25 Table amended...............................................16945
938 Clarification..................................................52916
938.12 (c) added...................................................25491
938.15 Table amended...............................................25491
946.15 Table amended...............................................19702
948.12 (h) added....................................................6590
948.15 Table amended..........................................6590, 7324
948.16 (oooo) removed...............................................6591
950.15 Table amended...............................................16954
950.16 (a), (w) and (ll) removed...................................16955

                                  2006

30 CFR
                                                                   71 FR
                                                                    Page
Chapter VII
816.22 (d)(1) introductory text and (i) revised....................51705
816.116 (a)(1), (c)(3)(i) and (ii) revised; (b)(3) introductory 
        text and (ii) amended......................................51705
817.22 (d)(1) introductory text and (i) revised....................51706
817.116 (a)(1), (c)(3)(i) and (ii) revised; (b)(3) introductory 
        text and (ii) amended......................................51706
906.25 Table amended...............................................54585
915.15 Table amended................................................5007
915.16 Heading revised; text removed................................5008
917.12 (f) added...................................................54589
917.15 Table amended...............................................54589
924.20 Added.......................................................50341
925.15 Table amended...............................................33249
925.17 Removed......................................................5552

[[Page 976]]

925.18 Removed......................................................5552
925.19 Removed......................................................5552
931.11 (e) removed.................................................69195
931.15 Table amended........................................61685, 69195
934.15 Table amended...............................................76148
936.15 Table amended...............................................15033
938.12 (d) added...................................................54595
938.16 (r), (eee), (ggg), (kkk), (lll) and (qqq) removed...........54596
943.15 Table amended.........................................8460, 34255
944.15 Table amended...............................................33254
946.15 Table amended................................................1494
948.12 (g) removed; (i) added......................................10790
948.15 Table amended........................................10790, 50849
948.16 (a), (sss), (wwww), (fffff), (jjjjj), (kkkkk), (lllll), 
        (ooooo), (ppppp) and (rrrrr) removed.......................10790
950.15 Table amended...............................................50855
950.35 Table amended...............................................14645
950.36 Section heading revised; text removed.......................14645

                                  2007

30 CFR
                                                                   72 FR
                                                                    Page
Chapter VII
701.5 Amended......................................................68028
773.3 Revised......................................................68029
773.7 (a) revised..................................................68029
773.8 (b)(1) revised...............................................68029
773.9 (a) revised..................................................68029
773.10 (b) and (c) revised.........................................68029
773.12 (a)(1) and (2) revised; (a)(3) and (b) removed; (c), (d) 
        and (e) redesignated as (b), (c) and (d)...................68029
773.14 (b) introductory text revised...............................68029
773.21 (c) revised.................................................68029
773.22 (d) removed; (e) through (h) redesignated as (d) through 
        (g)........................................................68029
773.23 (c)(2) revised..............................................68029
773.25 (a) and (b) revised.........................................68029
773.26 (a) table revised; (e) added................................68029
773.27 (a) revised.................................................68030
773.28 (d) revised.................................................68030
774.9 Revised......................................................68030
774.11 (a) table , (e), (f) and (g) revised; (h) added.............68030
774.12 (c) revised.................................................68030
774.17 (a), (d) introductory text and (1) revised..................68030
778.8 Revised......................................................68031
778.11 (d) removed; (e) redesignated as new (d); new (e) added; 
        heading, (a) introductory text, (1), (b)(4), (c) and new 
        (d) introductory text revised..............................68031
843.21 Removed.....................................................68031
847.11 Introductory text revised...................................68031
847.16 (a) introductory text revised...............................68031
914.15 Table amended...............................................28454
    Table amended..................................................59009
914.16 (ff) through (mm) removed...................................59009
917.21 (e) added...................................................59479
920.15 Table amended...............................................33155
924.20 Revised.....................................................54832
925.15 Table amended........................................10933, 57838
926.16 (e)(1), (k), (l) and (m) removed............................57838
935.15 Table amended...............................................26295
938.15 Table amended........................................19122, 56622
938.16 (mm) through (qq) removed...................................19122
942.800 (a) revised; (c) added......................................9636
942.816 (f)(3) introductory text and (4) revised....................9637
942.817 (e)(3) introductory text and (4) revised....................9637
943.15 Table amended...............................................64945
943.25 Table amended.........................................5333, 64946
946.15 Table amended........................................36598, 59012
948.20 Heading and (b) revised......................................1937
948.25 Heading revised; table amended...............................1937

                                  2008

30 CFR
                                                                   73 FR
                                                                    Page
Chapter VII
700.5 Amended......................................................67629
724.18 (d) revised.................................................67630
756.20 (a) added...................................................17249
773.13 (a)(2) revised..............................................67630
780 Heading revised................................................75875
780.10 Revised.....................................................75875
780.14 (b)(11) and (c) revised.....................................75875
780.25 Heading, (a) introductory text, (1) introductory text, (2), 
        (c)(2) and (d) revised; (c)(4) added; (e) and (f) removed 
                                                                   75876
780.28 Added.......................................................75877
780.35 Revised.....................................................75878
784.10 Revised.....................................................75879

[[Page 977]]

784.16 Heading, (a) introductory text, (1) introductory text, (2), 
        (c)(2) and (d) revised; (c)(4) added; (e) and (f) removed 
                                                                   75879
784.19 Revised.....................................................75880
784.23 (c) amended; (b)(10) revised................................75881
784.28 Added.......................................................75881
785.10 Revised.....................................................67630
785.25 (c) removed.................................................67630
816 Authority citation revised.....................................75882
816.10 Revised.....................................................75882
816.11 (e) revised.................................................75882
816.43 (a)(3) amended; (a)(4) redesignated as (a)(5); new (a)(4) 
        and (b)(5) added; (b)(1) and (4) revised...................75882
816.46 (b)(2) removed; (b)(3) through (6) redesignated as new 
        (b)(2) through (5).........................................75883
816.57 Revised.....................................................75883
816.71 (a) through (d) revised.....................................75883
816.116 (c)(2)(ii) and (3)(ii) revised.............................67630
817 Authority citation revised.....................................75884
817.10 Revised.....................................................75884
817.11 (e) revised.................................................75884
817.43 (a)(3) amended; (a)(4) redesignated as (a)(5); new (a)(4) 
        and (b)(5) added; (b)(1) and (4) revised...................75884
817.46 (b)(2) removed; (b)(3) through (6) redesignated as new 
        (b)(2) through (5).........................................75884
817.57 Revised.....................................................75884
817.71 (a) through (d) revised; (k) removed........................75885
817.116 (c)(2)(ii) and (3)(ii) revised.............................67631
845.21 (b)(1) revised..............................................67631
846.18 (d) revised.................................................67631
870.1 Revised......................................................67631
870.5 Amended......................................................67631
870.10 Revised.....................................................67631
870.11 (b) removed; (c), (d) and (e) redesignated as new (b), (c) 
        and (d)....................................................67631
870.13 (a) heading and (b) revised; (c) added......................67631
870.14 Revised.....................................................67632
870.15 Revised.....................................................67632
870.16 Revised.....................................................67632
870.17 Revised.....................................................67632
870.18 (b) revised.................................................67633
870.21 Added.......................................................67633
870.22 Added.......................................................67633
870.23 Added.......................................................67633
872 Revised........................................................67634
873 Authority citation revised.....................................67638
873.11 Revised.....................................................67638
873.12 Revised.....................................................67638
874.5 Added........................................................67638
874.10 Revised.....................................................67639
874.11 Revised.....................................................67639
874.12 (c), (e) and (f) revised....................................67639
874.13 Revised.....................................................67639
874.14 Heading and (a) revised.....................................67639
874.16 Revised.....................................................67639
875 Heading revised................................................67640
875.5 Added........................................................67640
875.10 Revised.....................................................67640
875.11 Revised.....................................................67640
875.12 (c) revised.................................................67640
875.13 (a) introductory text and (1) revised; (d) added............67640
875.14 Revised.....................................................67640
875.16 Revised.....................................................67640
875.20 Revised.....................................................67641
876 Authority citation revised.....................................67641
876.10 Revised.....................................................67641
876.12 Revised.....................................................67641
876.13 Removed.....................................................67641
876.14 Removed.....................................................67641
879 Authority citation revised.....................................67641
879.1 Revised......................................................67641
879.5 Added........................................................67641
879.10 Removed.....................................................67641
879.11 (a) introductory text, (2), (b) and (c) revised.............67641
879.15 (h) revised.................................................67642
880.5 (h) added....................................................67642
882 Authority citation revised.....................................67642
882.10 Revised.....................................................67642
882.13 (a)(1) revised..............................................67642
884 Authority citation revised.....................................67642
884.5 Added........................................................67642
884.11 Revised.....................................................67642
884.13 Introductory text and (a) revised...........................67642
884.17 Heading and (b) revised.....................................67642
885 Added..........................................................67642
886 Revised........................................................67644
887.1 Revised......................................................67647
887.3 Removed......................................................67647
887.5 Amended......................................................67647
887.10 Revised.....................................................67647
887.11 Revised.....................................................67647
887.12 Revised.....................................................67647
887.13 Revised.....................................................67647
887.15 Revised.....................................................67647
901.15 Table amended...............................................54681
916.15 Table amended...............................................72351

[[Page 978]]

924.15 Table amended...............................................74945
926.15 Table amended...............................................27743
931.15 Table amended...............................................68345
934.15 Table amended...............................................52923
938.12 (e) added...................................................38920
938.15 Table amended...............................................72725
938.16 (h) added...................................................38920
    (h) removed....................................................60947
943.15 Table amended...............................................14181
944.15 Table amended........................................46807, 50545
946.15 Table amended...............................................21823
948.15 Table amended; interim...............................33888, 78981
950.35 Table amended...............................................57541

                                  2009

30 CFR
                                                                   74 FR
                                                                    Page
Chapter VII
723.14 Table revised...............................................34492
724.14 (b) amended.................................................34493
845.14 Table revised...............................................34493
846.14 (b) amended.................................................34493
926.15 Table amended.................................................219
938 Clarification..................................................21768
938.16 (h) added...................................................12267
944.15 Table amended........................................45120, 63990
948.15 Amended; interim............................................36116
950.15 Table amended...............................................52685

                                  2010

30 CFR
                                                                   75 FR
                                                                    Page
Chapter VII
740.11 (a)(1) and (2) added........................................60275
761.16 (g) amended.................................................60275
773.6 (c)(4) revised...............................................60275
773.9 Heading revised..............................................60275
773.22 (a) introductory text revised...............................60275
795.4 Amended......................................................60275
816.46 (b)(2) suspension lifted; (b)(2) removed; (b)(3) through 
        (6) redesignated as new (b)(2) through (5).................60275
817.15 Amended.....................................................60275
817.46 (b)(2) suspension lifted; (b)(2) removed; (b)(3) through 
        (6) redesignated as new (b)(2) through (5).................60275
840.10 (b) amended.................................................60276
840.13 (b) revised.................................................60276
842.11 (b)(1)(ii)(B)(1) and (4)(i) through (iv) amended............60276
870.20 Introductory text amended...................................60276
884.13 (b) revised.................................................60276
926.15 Table amended...............................................81119
934.15 Table amended...............................................81122
935.15 Table amended...............................................72951
936.15 Table amended...............................................18051
938.15 Table amended...............................................48547
938.16 (h) revised.................................................48547
943.15 Table amended...............................................81125
Chapter XII
Chapter XII Established............................................61066
1201 Redesignated from Part 201....................................61066
1201.100 Heading and introductory text amended.....................61066
1202 Redesignated from Part 202....................................61066
1202.51 (b) amended................................................61066
1202.100 (a) and (b)(1) amended....................................61066
1202.100 (b)(2), (c), (e)(1), (2) and (f) amended..................61067
1202.150 (a), (b)(1), (2), (c), (e)(1), (2) and (f) amended........61067
1202.151 (a)(2), (b) and (c) amended...............................61067
1202.350 (b) amended...............................................61067
1202.351 (a)(1), (2), (3), (b)(2) introductory text, (i) 
        introductory text, (ii) introductory text, (iii), (3) and 
        (c) amended................................................61067
1202.353 (a)(1), (2), (b)(4), (c) and (e) amended..................61067
1202.550 (b)(2), (c)(1) and (e) amended............................61067
1202.551 (a) and (c) amended.......................................61067
1202.552 (b) amended...............................................61067
1202.553 Amended...................................................61067
1202.554 (a), (c), (d) introductory text and (1) through (5) 
        amended....................................................61067
1202.555 (a)(4) amended............................................61067
1202.556 Amended...................................................61067
1203 Redesignated from 203.250--203.251 (Subpart F); authority 
        citation added.............................................61067
1204 Redesignated from Part 204....................................61067
1204.2 Amended.....................................................61068
1204.3 Introductory text, (a) and (b) amended......................61068
1204.5 (a) introductory text, (2), (b) introductory text, (1) 
        introductory text, (i), (ii) and (2) amended...............61068
1204.6 Amended.....................................................61068

[[Page 979]]

1204.200 Amended...................................................61068
1204.201 (a)(1) and (b)(2) amended.................................61068
1204.202 (b)(1), (2), (c), (d)(1) and (e)(2) amended...............61068
1204.203 (a) introductory text, (1), (2) and (b) amended...........61068
1204.204 Heading, introductory text, (a), (e) and (j) amended......61068
1204.205 (a) introductory text, (1)(i), (ii), (b) introductory 
        text, (1)(i) and (ii) amended..............................61068
1204.206 Heading, introductory text, (a) introductory text, (1), 
        (2), (3) introductory text, (i) and (ii) amended...........61068
    (a)(3)(ii), (b) introductory text and (1) through (4) amended 
                                                                   61069
1204.207 (a) amended...............................................61069
1204.208 (a), (b), (c)(1), (2), (d)(1), (2), (e) and (f) amended 
                                                                   61069
1204.209 (a), (b) and (c) amended..................................61069
1204.210 Introductory text and (a) through (d) amended.............61069
1204.211 Heading, (a) introductory text, (1), (2), (3) and (b) 
        amended....................................................61069
1204.212 (a) amended...............................................61069
1204.215 Amended...................................................61069
1206 Redesignated from Part 206....................................61069
1206.10 Amended....................................................61069
1206.50 (b)(92) and (c) amended....................................61069
1206.51 Amended....................................................61069
1206.52 (a) introductory text, (c) introductory text, (2), 
        introductory text, (ii), (e)(1), (2), (3) and (4) 
        introductory text amended..................................61070
    (c)(2) correctly designated as (c)(2)(i); (e)(5) correctly 
designated from 1206.53(e)(5); (c) introductory text correctly 
designated as 1206.53(c) introductory text.........................66665
    (c) introductory text correctly designated as 1206.53(c) 
introductory text; (c)(2) correctly designated as (c)(2)(i)........70814
1206.52g Amended...................................................61070
1206.53 (a)(2), (3), (d), (e) and (5) amended......................61070
    (c) introductory text correctly designated from 1206.52(c) 
introductory text; (e)(5) correctly designated as 1206.52(e)(5)....66665
    (e)(5) correctly designated as 1206.52(e)(5)...................70814
1206.54 (a) amended................................................61070
1206.55 Amended....................................................61070
1206.56 (a), (b)(1), (2), (c) and (d) amended......................61070
1206.57 (a)(1)(i), (ii), (iii), (2)(i), (ii), (3), (5), (b)(1), 
        (2)(iv) introductory text, (A), (B), (3)(i), (ii), (4), 
        (5) introductory text, (i), (c)(1)(iii) through (vi), 
        (2)(iii), (v), (vi), (vii), (3), (4), (d)(3), (e)(1) and 
        (2) amended................................................61070
1206.58 Heading, (a) introductory text, (1), (2) and (b) amended 
                                                                   61070
1206.59 Amended....................................................61070
1206.60 (b) amended................................................61070
1206.61 (a) and (b) amended........................................61070
1206.62 Amended....................................................61070
1206.100 (d)(3) and (e) amended....................................61070
1206.101 Amended............................................61070, 61071
1206.102 (a) introductory text, (c)(1), (2) introductory text, 
        (ii)(A), (B), (d)(1) introductory text, (i), (ii), (2)(i), 
        (ii) and (e)(1) amended....................................61071
1206.103 Introductory text, (a) introductory text, (3), (4), (b) 
        introductory text, (1) introductory text, (i) introductory 
        text, (ii), (3), (4), (c)(1), (2), (d), (e)(1), (2)(iv) 
        and (3) amended............................................61071
1206.104 Heading, introductory text, (a)(4), (b), (c) and (d) 
        amended....................................................61071
1206.105 (b) and (c) amended.......................................61071
    (b) correctly amended..........................................66665
    (b) corrected..................................................70814
1206.107 (a) introductory text, (3), (b), (1), (2), (3), (c)(1), 
        (2), (d) introductory text, (1), (2), (e) and (f) amended 
                                                                   61071
    (g) introductory text and (h) amended..........................61072
    (d) introductory text corrected................................70814
1206.108 Amended...................................................61072
1206.109 (a) introductory text, (1), (b), (c)(1), (2), (d) and (e) 
        amended....................................................61072

[[Page 980]]

1206.110 (a) introductory text, (1), (2) introductory text, 
        (ii)(A), (B), (b)(4)(i), (ii), (d)(3), (e) introductory 
        text, (1) and (g)(2) amended...............................61072
    (a)(2) introductory text correctly amended.....................66665
    (a)(2) introductory text corrected.............................70814
1206.111 (b)(6)(ii)(A), (B), (g), (k)(2), (l)(1) and (2) amended 
                                                                   61072
1206.112 introductory text, (a)(1)(ii), (2), (4), (b)(2), (3), 
        (c)(1), (2) and (d)(3) amended.............................61072
1206.113 Heading, introductory text and (a) amended................61072
1206.114 Amended...................................................61072
1206.115 (a), (b) and (c) amended..................................61072
1206.116 (a) and (b) amended.......................................61072
1206.117 (a) amended...............................................61072
1206.119 (a), (b) and (c) amended..................................61072
1206.120 Amended...................................................61072
1206.150 (b)(3) and (c) amended....................................61072
1206.151 Amended...................................................61073
1206.152 (a)(1), (b)(1)(ii), (iii), (iv), (2), (3), (d)(1), 
        (e)(1), (2), (3), (f), (g), (k) and (l) amended............61073
    (e)(3) correctly amended.......................................66665
    (e)(3) corrected...............................................70814
1206.153 (a)(1), (2), (b)(1)(ii), (iii), (iv), (2), (3), (d)(1), 
        (e)(1), (2), (3), (f), (g), (k) and (l) amended............61073
1206.154 (a)(1), (2), (b)(2), (c)(4), (d)(1) and (2) amended.......61073
1206.155 (a)(1), (2) and (b) amended...............................61073
1206.156 (a), (b), (c)(1), (2), (3) and (d) amended................61073
1206.157 (a)(1)(i), (ii), (iii), (2)(i), (ii), (3), (5), (b)(1), 
        (2)(iv) introductory text, (A) and (B) amended.............61073
    (b)(3)(i), (ii), (4), (5)(i) introductory text, (ii), 
(c)(1)(i), (ii), (2)(i), (iii), (d)(1), (3), (e)(1), (2), (3) and 
(f)(9) amended.....................................................61074
1206.158 (a), (c)(1), (2), (3), (d)(1), (2)(i), (ii) and (e) 
        amended....................................................61074
1206.159 (a)(1)(i), (ii), (iii), (3), (b)(1), (2)(iv) introductory 
        text, (A), (B), (4), (c)(1)(i), (ii), (2), (iii), (d)(1), 
        (3), (e)(1), (2) and (3) amended...........................61074
1206.170 (c) and (d) amended.......................................61074
1206.171 Amended............................................61074, 61080
1206.172 (a) introductory text, (2), (b)(2), (3), (c)(2) 
        introductory text and (ii) amended.........................61074
    (d)(1)(i), (2) introductory text, (i), (v), (3), (4) 
introductory text, (5) through (8), (e)(6)(i), (iii), (f)(1) 
introductory text, (i), (ii), (2) introductory text, (i), (3), 
(g)(1)(i), (ii), (iii), (2)(i) and (ii) amended....................61075
1206.173 (a)(1), (2) introductory text, (i) introductory text, 
        (H), (Q), (ii), (b)(1), (2) introductory text and (i) 
        amended....................................................61075
1206.174 (a)(1)(i), (ii), (iii), (3), (4)(ii), (iii), (iv), 
        (b)(1)(ii), (iii), (iv), (2), (d)(1), (2), (e), (f), 
        (g)(2) introductory text, (j) and (k) amended..............61075
1206.175 (d)(4) amended............................................61075
1206.176 (a)(1)(i), (ii), (2) and (b) through (e) amended..........61075
1206.177 (a) amended...............................................61075
    (b), (c)(2), (3) and (d) amended...............................61076
1206.178 (a)(1)(i), (ii), (iii), (2)(i), (ii) introductory text, 
        (3)(i), (ii), (5), (b)(1)(ii), (iv) introductory text, 
        (A), (3)(i) introductory text, (ii) introductory text, 
        (4), (5), (d)(1), (2), (e) and (f)(9) amended..............61076
1206.179 (a), (c), (d), (e) and (g) amended........................61076
1206.180 (a)(1)(i), (ii), (iii), (3), (b)(1)(ii), (2)(iv) 
        introductory text, (A), (3), (c)(1), (2) and (d) amended 
                                                                   61076
1206.181 Introductory text, (c) and (d) amended....................61076
1206.250 (c) amended...............................................61076
1206.251 Amended...................................................61076
1206.252 Amended...................................................61076
1206.255 (a), (b) and (c) amended..................................61076
1206.256 (d) amended...............................................61076
1206.257 (a), (b)(2) through (5), (d)(1), (2), (3), (e) and (f) 
        amended....................................................61076
    (g), (i), (j) and (k) amended..................................61077
1206.258 (a) and (b) amended.......................................61077
1206.259 (a)(1), (2), (3), (b)(1), (2)(iv) introductory text, (A), 
        (B), (c)(1)(i), (ii), (2)(i), (iii), (d)(3) and (e)(1) 
        amended....................................................61077

[[Page 981]]

1206.261 (a) introductory text and (d) amended.....................61077
1206.262 (a)(2), (3), (b)(1), (2)(iv) introductory text, (A), (B), 
        (3) introductory text, (i), (c)(1)(i), (ii), (2)(i), 
        (iii), (d)(3), (e)(1) and (2) amended......................61077
1206.264 Amended...................................................61077
1206.265 Introductory text, (a) and (b) amended....................61077
1206.350 (b), (c)(2) introductory text, (i) and (ii) amended.......61077
1206.351 Amended...................................................61077
1206.352 (a)(2), (b)(1)(i), (ii) and (2) amended...................61077
1206.353 (a) introductory text, (b)(1)(ii), (g), (h)(1) and (m)(2) 
        amended....................................................61077
    (n) amended....................................................61078
1206.354 (a), (b)(1)(ii), (g), (h)(1), (m)(2) and (n) amended......61078
1206.355 Amended...................................................61078
1206.356 (a)(2), (3), (b)(1)(iii), (3) introductory text, (i), 
        (ii) and (c) amended.......................................61078
1206.357 (b)(1), (3), (d)(1), (2) and (e) amended..................61078
1206.358 (e) amended...............................................61078
1206.359 (a)(1), (2), (g), (h)(1) and (l)(2) amended...............61078
1206.360 Introductory text and (b) amended.........................61078
1206.361 Heading, (a)(1), (2), (b) and (d) amended.................61078
1206.363 Amended...................................................61078
1206.364 (a) introductory text, (3), (b)(1), (2), (3), (c)(1), 
        (2), (d) introductory text, (1), (2), (e), (f), (g) 
        introductory text and (h) amended..........................61078
1206.365 Amended...................................................61078
1206.366 Amended...................................................61078
1206.451 Amended.....................................61078, 61079, 61080
1206.453 Amended...................................................61079
1206.454 (a), (b) and (c) amended..................................61079
1206.455 (d) amended...............................................61079
1206.456 (a), (b)(2) through (5), (d)(1), (2), (3), (e), (f), (g), 
        (i), (j) and (k) amended...................................61079
1206.457 (a) and (b) amended.......................................61079
1206.458 (a)(1), (2), (3), (b)(1), (2)(iv) introductory text, (A), 
        (B), (c)(1)(iii) through (vi), (2)(iii), (v), (vi), (vii), 
        (3), (4), (d)(3), (e)(1) and (2) amended...................61079
1206.460 (a) introductory text and (d) amended.....................61079
1206.461 (a)(1), (2), (3), (b)(1), (2)(iv) introductory text, (A), 
        (B), (3) introductory text, (i), (c)(1)(iii) through (vi), 
        (2)(iii) and (v) amended...................................61079
    (c)(2)(vi), (vii), (3), (4), (d)(3), (e)(1) and (2) amended....61080
1206.463 Amended...................................................61080
1206.464 Introductory text, (a) and (b) amended....................61080
1207 Redesignated from Part 207....................................61080
1207.1 (b) amended.................................................61080
1207.2 Amended.....................................................61080
1207.3 Amended.....................................................61080
1207.4 (a) amended.................................................61080
1207.5 Amended.....................................................61080
1208 Redesignated from Part 208....................................61080
1208.2 Amended..............................................61080, 61081
    Correctly amended..............................................66665
    Corrected......................................................70814
1208.4 (a), (b)(1), (2), (c) and (d) amended.......................61081
1208.5 Amended.....................................................61081
1208.6 (a) and (b)(5) amended......................................61081
1208.7 (a), (b), (c), (e), (g) and (h) amended.....................61081
1208.8 (a), (b) and (c) amended....................................61081
1208.9 (a) amended.................................................61081
1208.10 (a) through (e) amended....................................61081
1208.11 (a) through (e) amended....................................61081
1208.12 (a), (b)(1), (2), (c) and (d) amended......................61081
1208.13 Amended....................................................61081
1208.15 Amended....................................................61081
1210 Redesignated from Part 210....................................61081
1210.01 Amended....................................................61082
1210.02 Amended....................................................61082
1210.10 Introductory text and table amended........................61082
1210.20 Amended....................................................61082
1210.21 (a) introductory text, (b) and (d) amended.................61082
1210.30 Amended....................................................61082
1210.40 Amended....................................................61082
1210.51 (a) and (b) amended........................................61082
1210.52 Introductory text amended..................................61082
1210.53 (a) and (b) amended........................................61082

[[Page 982]]

1210.54 (a), (b) introductory text, (2) and (c) amended............61082
1210.55 (a) introductory text, (1), (b) introductory text, (1) and 
        (2) amended................................................61082
1210.56 (a), (b) and (c) amended...................................61082
1210.101 (b) amended...............................................61082
1210.102 (a) introductory text, (1)(ii) and (2)(i) amended.........61082
1210.103 (a) and (b) amended.......................................61082
1210.104 (a) introductory text, (b) introductory text, (2) and (c) 
        amended....................................................61082
1210.105 (a) introductory text, (1), (b) introductory text and (1) 
        amended....................................................61082
    (b)(2) amended.................................................61083
1210.106 (a), (b) and (c) amended..................................61083
1210.150 Amended...................................................61083
1210.151 (a), (b), (c)(2) and (3) amended..........................61083
1210.152 (a) introductory text, (1), (2), (3), (b), (c)(1) and (2) 
        amended....................................................61083
1210.153 (a) introductory text, (b), (c)(1) and (2) amended........61083
1210.154 (a), (c)(1) and (2) amended...............................61083
1210.155 (b) introductory text, (1), (2)(i) and (ii) amended.......61083
1210.156 (a), (c)(1) and (2) amended...............................61083
1210.157 Heading, (a), (c)(1) and (2) amended......................61083
1210.158 (a), (b), (c)(1) and (2) amended..........................61083
1210.201 (a)(1)(iv), (b)(3), (c)(3) introductory text, (i) and 
        (ii) amended...............................................61083
1210.202 (c)(2) introductory text, (i) and (ii) amended............61083
1210.203 (c) amended...............................................61083
1210.204 (c)(2) amended............................................61083
1210.205 Introductory text, (b), (1), (2), (c)(1) and (2) amended 
                                                                   61083
1210.206 Heading amended...........................................61083
1210.350 Amended...................................................61083
1210.351 Amended...................................................61083
1210.352 Amended...................................................61083
1210.353 Amended...................................................61084
1210.354 Amended...................................................61084
1212 Redesignated from Part 212....................................61084
1212.51 (a) amended................................................61084
1212.200 (b) amended...............................................61084
1212.350 Amended...................................................61084
1212.351 Amended...................................................61084
1217 Redesignated from Part 217....................................61084
1217.200 Amended...................................................61084
1218 Redesignated from Part 218....................................61084
1218.10 Amended....................................................61084
1218.40 (a) and (e) amended........................................61084
1218.40 (e) amended................................................61085
1218.41 (a), (b), (c)(3), (4), (e) and (f) amended.................61085
1218.42 (c) amended................................................61085
1218.50 (c), (d)(1), (5)(i), (e)(1) and (2) amended................61085
1218.51 (a), (b) introductory text, (1), (2), (4) introductory 
        text, (c)(1) through (4), (d)(2), (3), (e), (f)(3)(ii), 
        (4)(i), (iii), (g) heading, (1), (2), (3), (h)(1) and (2) 
        amended....................................................61085
1218.52 (a) introductory text, (c)(2) and (d) amended..............61085
1218.53 (b) and (d) amended........................................61085
1218.54 (e) amended................................................61085
1218.55 (b) amended................................................61085
1218.100 (a), (b) and (c) amended..................................61085
1218.102 (a), (b) and (d) amended..................................61085
1218.103 (a) amended...............................................61085
1218.150 (a), (b) and (c) amended..................................61085
    (c) and (e) amended............................................61086
1218.151 Introductory text amended.................................61086
1218.152 Amended...................................................61086
1218.154 (a) introductory text and (b) amended.....................61086
1218.155 (a), (c), (d)(1), (3), (4) and (e) introductory text 
        amended....................................................61086
1218.200 Amended...................................................61086
1218.201 Introductory text, (b) and (c) amended....................61086
1218.202 (a), (b) and (f) amended..................................61086
1218.203 (b) and (d) amended.......................................61086
1218.300 Amended...................................................61086
1218.301 Amended...................................................61086
1218.302 (a), (b) and (f) amended..................................61086
1218.303 (a)(1) amended............................................61086
1218.304 Amended...................................................61086
1218.305 (a) and (b) amended.......................................61086

[[Page 983]]

1218.306 (a)(2) and (b) amended....................................61086
1218.307 Amended...................................................61086
1218.520 Amended...................................................61086
1218.540 Heading, introductory text, (a) introductory text, (b)(1) 
        and (c) amended............................................61086
1218.580 Amended...................................................61086
1219 Redesignated from 219.100--219.105 (Subpart C); authority 
        citation added.............................................61086
1219.101 (a), (b) and (c) amended..................................61087
1219.102 Amended...................................................61087
1219.103 Amended...................................................61087
1219.104 (a), (b) and (c) amended..................................61087
1220 Redesignated from Part 220....................................61087
1220.001 (a) and (b) amended.......................................61087
1220.002 Amended...................................................61087
1220.003 (a) and (b) amended.......................................61087
1220.010 (a) amended...............................................61087
1220.011 Introductory text, (b)(4) introductory text, (iii), 
        (c)(1), (3), (e) introductory text, (f), (j)(2)(ii), (k) 
        and (o) amended............................................61087
1220.012 (a), (b) and (c)(1) through (5) amended...................61087
1220.013 (b) amended...............................................61087
    (c), (f)(4) and (i) amended....................................61088
1220.015 (a)(1) and (b)(1) amended.................................61088
1220.020 (a)(1), (2), (3), (b) and (c) amended.....................61088
1220.021 (a)(2), (3), (b)(2), (3) and (c)(2) amended...............61088
1220.022 Amended...................................................61088
1220.030 (a) introductory text and (4) amended.....................61088
1220.031 (b) introductory text, (c), (d) and (e) amended...........61088
1220.032 (d) amended...............................................61088
1220.033 (c)(1) and (e) amended....................................61088
1220.034 (a) and (d) amended.......................................61088
1227 Redesignated from Part 227....................................61088
1227.1 Amended.....................................................61088
1227.10 (b) amended................................................61088
1227.101 Heading, (a) introductory text, (b) introductory text amd 
        (c) amended................................................61088
1227.102 Heading, introductory text, (a), (b), (d), (e) and (f) 
        amended....................................................61088
1227.103 Introductory text and (c)(2)(i) amended...................61088
    (e)(3)(i)(A) and (g) amended...................................61089
1227.104 Amended...................................................61089
1227.105 Introductory text, (a), (c), (d), (g), (h) and (i) 
        amended....................................................61089
1227.106 Introductory text, (b), (d) and (e) amended...............61089
1227.107 Amended...................................................61089
1227.108 Amended...................................................61089
1227.109 Amended...................................................61089
1227.110 (a), (b) introductory text, (1), (c), (d) and (e) amended
                                                                   61089
1227.111 (c) amended...............................................61089
1227.112 (b), (f) and (g) amended..................................61089
1227.200 (a), (c) through (f), (h), (i) and (j) amended............61089
1227.201 (a), (c) and (d) amended..................................61089
1227.300 Introductory text and (a)(4) amended......................61089
1227.301 (a), (b), (c) and (e) amended.............................61089
1227.400 (a)(4), (6), (7) and (c) amended..........................61089
1227.401 (b) through (g) amended...................................61089
1227.500 (g) amended...............................................61089
1227.501 (a) amended...............................................61089
    (c) amended....................................................61090
1227.600 (a)3, (b)(3) and (d) amended..............................61090
1227.601 (d) amended...............................................61090
1227.700 (d)(1) amended............................................61090
1227.800 Heading, introductory text, (a), (b)(1), (2) and (3) 
        amended....................................................61090
1227.801 Introductory text, (a), (b) introductory text, (1), (2) 
        and (3)(ii) amended........................................61090
1227.802 Heading, introductory text, (a), (b), (c), (d) 
        introductory text and (e) amended..........................61090
1227.803 (a), (f) introductory text, (g), (h) introductory text 
        and (2) amended............................................61090
    (h)(2) amended.................................................61090
1227.804 Amended...................................................61090
1228 Redesignated from Part 228....................................61090
1228.5 (a) and (c) amended.........................................61090
1228.6 Amended.....................................................61090
1228.10 (b) amended................................................61090

[[Page 984]]

1228.100 (a), (b) introductory text and (c) amended................61090
1228.101 (d) amended...............................................61090
1228.102 Amended...................................................61090
1228.103 (a) amended...............................................61090
1228.104 (a) and (c) amended.......................................61090
1228.108 Amended...................................................61090
1229 Redesignated from Part 229....................................61091
1229.6 Amended.....................................................61091
1229.100 (a)(1), (2) and (b) introductory text amended.............61091
1229.101 (b) amended...............................................61091
1229.102 (b)(4) and (5) amended....................................61091
1229.103 (a) amended...............................................61091
1229.104 (b), (d), (e) and (f) amended.............................61091
1229.107 (a) and (c) amended.......................................61091
1229.108 Amended...................................................61091
1229.111 Amended...................................................61091
1229.120 Amended...................................................61091
1229.121 (b), (c) and (d) amended..................................61091
1229.122 (a), (b) and (c)(M).......................................61091
1229.123 (b)(2), (3)(i), (v) and (vii) amended.....................61091
1229.125 (a) and (b) amended.......................................61091
1229.126 (a) and (b) amended.......................................61091
1241 Redesignated from Part 241....................................61091
1241.51 Heading and (b) amended....................................61091
1241.55 (b) introductory text and (2) amended......................61091
1241.56 (a) amended................................................61091
1241.61 Amended....................................................61092
1241.63 (b) introductory text and (2) amended......................61092
1241.64 (a) amended................................................61092
1241.70 Heading amended............................................61092
1241.71 (b) amended................................................61092
1241.72 Amended....................................................61092
1241.75 (a), (b), (d)(1), (2), (3) and (e) amended.................61092
1241.76 Heading amended............................................61092
1241.77 Heading, (a) and (b) amended...............................61092
1241.80 Amended....................................................61092
1243 Redesignated from Part 243; heading revised...................61092
1243.1 (a) amended.................................................61092
1243.3 Amended.....................................................61092
1243.4 (b)(2) amended..............................................61092
1243.5 Amended.....................................................61092
1243.6 Amended.....................................................61092
1243.7 Introductory text, (a) and (b) amended......................61092
1243.8 Heading, (a)(1), (2) introductory text, (i), (b)(1) and (2) 
        amended....................................................61092
    (d) amended....................................................61093
1243.9 Heading, (a) and (b) amended................................61093
1243.10 Heading, (a)(1), (b) introductory text, (1), (4), (5) and 
        (6) amended................................................61093
1243.11 Heading amended............................................61093
1243.12 Amended....................................................61093
1243.100 Heading, (a), (b) introductory text and (2) amended.......61093
1243.101 Heading, introductory text and (a)(1) amended.............61093
1243.200 (a) introductory text, (b) and (c) amended................61093
1243.201 Heading, (a), (c) introductory text and (2)(i) amended....61093
1243.202 Heading, (a), (b) and (c) amended.........................61093
1290 Redesignated from 290.100--290.110 (Subpart B); authority 
        citation added.............................................61093
1290.100 Amended...................................................61093
1290.102 Amended............................................61093, 61094
1290.103 (a) and (b) amended.......................................61094
1290.104 (b) amended...............................................61094
1290.105 (a) introductory text and (d) through (g) amended.........61094
1290.106 (a) amended...............................................61094
1290.108 Amended...................................................61094
1290.110 (a) introductory text, (1) and (2) amended................61094

                                  2011

   (Regulations published from January 1, 2011, through July 1, 2011)

30 CFR
                                                                   76 FR
                                                                    Page
Chapter VII
901.15 Table amended.........................................9646, 30010
917.15 Table amended...............................................12851
917.16 (d)(5) removed..............................................12852
918.15 Table amended...............................................12856
918.25 Table amended...............................................12856
926.15 Table amended........................................12859, 30013
948.15 Table amended; interim......................................38000
950.15 Table amended...............................................34835
950.16 (f), (l) and (m) removed....................................34837
Chapter XII
1204.207 (b) amended...............................................38561
1206.259 (e)(1) and (2) amended....................................38561
1218.154 (a) and (b) amended.......................................38561

[[Page 985]]

1241.60 (a)(1) and (2) amended; (a)(3) removed; (b) revised........38561
1290 Authority citation revised....................................38561
1290.105 (g) amended...............................................38561
1290.108 Amended...................................................38561
1290.110 (a)(1) amended............................................38561


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