[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19450-19461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10247]



[[Page 19449]]

_______________________________________________________________________

Part VI





Department of the Interior





_______________________________________________________________________



Office of Surface Mining Reclamation and Enforcement



_______________________________________________________________________



30 CFR Parts 773, 778, and 843



Ownership and Control; Permit Application Process; Improvidently Issued 
Permits; Interim Final Rule

  Federal Register / Vol. 62, No. 76 / Monday, April 21, 1997 / Rules 
and Regulations  

[[Page 19450]]



DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 773, 778, and 843

RIN 1029-AB-91


Ownership and Control; Permit Application Process; Improvidently 
Issued Permits

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

ACTION: Interim final rule.

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

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is amending its regulations governing permit application information 
requirements; criteria for permit issuance; and criteria, procedures, 
and sanctions for improvidently issued permits. The affected provisions 
generally address ownership and control information and compliance 
review requirements. This action is being taken in response to a 
decision by the U.S. Court of Appeals for the District of Columbia 
Circuit invalidating the previous rules as inconsistent with the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
The court held that SMCRA authorizes the regulatory authority to block 
issuance of a permit only for unabated violations incurred by the 
applicant or entities owned or controlled by the applicant, not, as 
provided in the previous rules, for violations incurred by any person 
who owns or controls the permittee. The rules being promulgated today 
cure this defect. Because of the urgent need to fill the void created 
by the court's decision, OSM is invoking the good cause exemptions of 
the Administrative Procedure Act and is adopting these rules on an 
interim final basis, effective April 3, 1997.

EFFECTIVE DATE: April 3, 1997.

FOR FURTHER INFORMATION CONTACT:
Nancy Broderick or Dennis Rice, Office of Surface Mining Reclamation 
and Enforcement, U.S. Department of Interior, 1951 Constitution Ave., 
NW., Washington, DC 20240. Telephone: (202) 208-2700 or 2829. E-mail 
address; [email protected] or [email protected]. Additional information 
concerning OSM, this rule, and related documents may be found on OSM's 
home page at hhtp://www.osmre.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background.
II. Rationale for Invoking APA Good Cause Exemptions.
III. Discussion of Interim Final Rules.
    A. Section 773.5-Definitions.
    B. Section 773.15(b)--Permit Block.
    C. Section 773.15(e)--Final Compliance Review.
    D. Section 773.17(i)--Permit Condition.
    E. Sections 773.20 and 773.21--Improvidently Issued Permits.
    F. Section 778.10--Information Collection.
    G. Section 778.13--Organizational and Ownership Information 
Requirements for Permit Applications.
    H. Section 778.14--Compliance Information Requirements for 
Permit Applications.
    I. Section 843.11(g)--Notification Following Issuance of 
Cessation Order.
    J. Section 843.21--Federal Procedures for Improvidently Issued 
State Permits.
    K. Effect in Federal Program States and on Indian Lands.
    L. Effect on State Programs.
    M. Comparison of Interim Final Rule Language with Prior Rule 
Language.
IV. Procedural Matters.

I. Background

    Section 510(c) of SMCRA, 30 U.S.C. 1260(c), requires that each 
application for a permit to conduct surface coal mining operations 
include a schedule listing ``any and all notices of violation of this 
Act and any law, rule, or regulation of the United States, or of any 
department or agency in the United States pertaining to air or water 
environmental protection incurred by the applicant in connection with 
any surface coal mining operation during the three-year period prior to 
the date of application.'' It further specifies that ``[w]here the 
schedule or other information available to the regulatory authority 
indicates that any surface coal mining operation owned or controlled by 
the applicant is currently in violation of this Act or such other laws 
referred to in this subsection, the permit shall not be issued until 
the applicant submits proof that such violation has been corrected, or 
is in the process of being corrected to the satisfaction of the 
regulatory authority, department, or agency which has jurisdiction over 
such violation.'' Finally, it provides that ``no permit shall be issued 
to an applicant after a finding by the regulatory authority, after 
opportunity for hearing, that the applicant, or the operator specified 
in the application, controls or has controlled mining operations with a 
demonstrated pattern of willful violations of this Act of such nature 
and duration with such resulting irreparable damage to the environment 
as to indicate an intent not to comply with the provisions of this 
Act.'' Id.
    To implement these provisions of the Act, OSM adopted three sets of 
regulations known respectively as the ownership and control rule (53 FR 
38868, October 3, 1998), the permit information rule (54 FR 8982, March 
2, 1989), and the improvidently issued permits rule, also known as the 
permit rescission rule (54 FR 18438, April 28, 1989). The ownership and 
control rule revised 30 CFR 773.15(b) to prohibit permit issuance on 
the basis of unabated violations attributed to either the applicant or 
any person who owns or controls the applicant. It also defined the 
terms ``owns or controls'' and ``owned or controlled'' as used in that 
rule and as the latter term is used in section 510(c) of SMCRA. The 
permit information rule revised 30 CFR 778.13 and 778.14 to establish 
permit application information and compliance review and reporting 
requirements consistent with the new ownership and control definition 
and the revisions that the ownership and control rule made to 30 CFR 
773.15(b). The improvidently issued permits rule established criteria 
and procedures for determining when an existing permit has been issued 
improvidently; i.e., in violation of 30 CFR 773.15(b) and section 
510(c) of the Act. This rule also included remedial measures for 
improvidently issued permits.
    The Applicant/Violator System procedures rule published on October 
28, 1994 (59 FR 54306) modified several provisions of the ownership and 
control, permit information, and improvidently issued permits rules. In 
addition, the remining rule published on November 27, 1995 (60 FR 
58480) added paragraph (b)(4) to 30 CFR 773.15. None of these revisions 
was at issue in the litigation discussed below.
    The National Mining Association and the National Wildlife 
Federation filed suit challenging the validity of the ownership and 
control, permit information, and improvidently issued permits rules on 
a variety of grounds. On August 31, 1995, the U.S. District Court for 
the District of Columbia granted summary judgment in favor of OSM on 
all claims. See National Wildlife Fed'n v. Babbitt, Civ. Nos. 88-3117, 
88-3464, 88-3470 (consolidated) (Aug. 31, 1995), slip op. at 25: 
National Wildlife Fed'n v. Babbitt, Civ. Nos. 89-1130, 89-1167 
(consolidated) (Aug. 31, 1995), slip op. at 12: National Wildlife Fed'n 
v. Babbitt, Civ. Nos. 89-1751, 89-1811 (consolidated) (Aug. 31, 1995), 
slip op. at 19.
    On appeal, however, in a decision that took effect April 4, 1997, 
the U.S. Court of Appeals for the District of Columbia Circuit found 
the ownership and control rule to be ``unlawful'' because 30 CFR 
773.15(b)(1) blocks

[[Page 19451]]

permit issuance for violations at operations owned or controlled by any 
person who owns or controls the applicant, a provision that, according 
to the court, ``conflicts with the plain meaning of section 510(c).'' 
National Minning Ass'n v. United States Dept. of the Interior, 105 F.3d 
691, 694 (D.C. Cir. 1997) (``NMA--O&C''). The court ruled that section 
510(c) is ``unmistakably clear'' in stating that a permit may not be 
issued ``when `any surface coal mining operation owned or controlled by 
the applicant' is currently in violation of SMCRA.'' In addition, the 
court held, with little elaboration, that because the permit 
information rule and the permit rescission (improvidently issued 
permits) rule ``are centered on the ownership and control rule * * *, 
they too must fall.'' Id. at 696.
    Nothing is the court's decision eliminates the responsibility of 
OSM and State regulatory authorities to implement the requirements of 
sections 507(b) and 510(c) of the Act. Nor does it terminate the 
Applicant/Violator System, the database that OSM and State regulatory 
authorities use to track violations and violators, although it will 
impact the use of that data. OSM has taken steps to modify system 
reports and recommendations to reflect the court's decision. Today's 
rulemaking action represents OSM's initial effort to conform its 
regulations to the court's decision. OSM intends to propose further 
regulatory revisions in the near future in accordance with standard 
notice and comment procedures.

II. Rationale for Invoking APA Good Cause Exemptions

    The court's action in striking the ownership and control, permit 
information, and improvidently issued permits rules creates 
considerable uncertainty with respect to permit application information 
requirements and implementation of the statutory permit block sanction 
in section 510(c). This sanction has proven to be one of the most 
effective incentives for compliance with the requirements of the Act. 
It has prevented persons who are either unable or unwilling to adhere 
to the environmental protection standards of the Act from repeatedly 
causing environmental problems on additional sites.
    Under sections 101(f) and 503 of SMCRA, States have the primary 
responsibility for regulating surface coal mining and reclamation 
operations. Once a State attains primacy (an approved regulatory 
program under section 503 of the Act), OSM's role is reduced to that of 
assistance and oversight. At present, 24 of the 27 coal-producing 
States have achieved primacy.
    At least 5 State programs include provisions that automatically 
repeal or require review of any State program counterpart to a Federal 
rule remanded or otherwise invalidated by the courts. In addition, 
another 7 States have laws or regulations that prohibit the 
promulgation of regulations that are more stringent than Federal 
requirements. If there are no Federal rules in place, OSM expects that 
most of these States will suspend or otherwise remove the corresponding 
State provisions. While removal of a State program rule, either 
automatically or by legislative or administrative action, is often 
rapid restoration through SMCRA's program amendment process is both 
lengthy and complex, often requiring a number of years to accomplish. 
Regardless of the mechanism by which the programmatic void comes into 
being, the result will be an absence of information that will translate 
into the issuance of permits to persons who are not entitled to receive 
them under section 510(c) of the Act.
    Prior to establishment of the Applicant/Violator System, OSM and 
State regulatory authorities had few sources of information about 
industry practices and enterprises except for disclosures in permit 
applications. They also lacked a regulatory structure or centralized 
data processing system to track persons or entities which owned or 
controlled operations with unabated violations as they reincorporated 
or renamed themselves, used a series of contract miners, or moved from 
State to State. The lack of such a system is especially significant 
since, as noted at 53 FR 38886 (October 3, 1988), over half of all 
Federal permit applicants between March 1985 and April 1986 had 
unabated violations, unpaid abandoned mine land reclamation fees, or 
unpaid civil penalties, although some of these outstanding obligations 
were under appeal. The problem was particularly difficult to address 
when an applicant for a permit in one State owned or controlled an 
operation with an unabated violation in another State, since there were 
few mechanisms by which States exchanged information.
    The effectiveness of the section 510(c) permit block sanction 
depends upon maintenance of a reliable nationwide database (currently, 
the Applicant/Violator System) on permit applicants, organizational 
relationships, and violations. Otherwise, violators can simply move 
from State to State and company to company to evade their reclamation 
obligations and other responsibilities under the Act. States are 
primarily responsible for inputting data into this system. Therefore, 
it is imperative that the integrity of State programs, including permit 
application information requirements, be maintained. State program 
provisions are relatively easy to delete, but difficult and time-
consuming to restore.
    The court's decision creates a regulatory gap that would result in 
substantial uncertainty and confusion regarding permit application 
information requirements, use of the Applicant/Violator System, and the 
identification and handling of improvidently issued permits. Such 
regulatory confusion would be contrary to the public interest because 
issuance of permits to persons who are not entitled to receive them 
under the Act, as would likely occur in the absence of consistent 
permit application content, review, and reporting requirements, would 
prove injurious to the environment and public health and safety. The 
schedule for issuance of the court's mandate allows insufficient time 
for public notice and comment on replacement regulations before the 
regulatory gap occurs. Therefore, following normal notice and comment 
procedures under the Administrative Procedure Act (APA) would be 
impracticable and contrary to the public interest.
    To avoid creation of a regulatory gap, OSM is now promulgating 
replacement regulations on an interim final basis, as authorized by the 
APA at 5 U.S.C. 553(b)(3)(B). This provision of the APA provides a 
``good cause'' exemption that allows an agency to issue a rule without 
prior notice or opportunity for public comment ``when the agency for 
good cause finds (and incorporates the finding and a brief statement of 
the reasons therefor in the rules issued) that notice and public 
procedure thereon are impracticable, unnecessary, or contrary to the 
public interest.'' As discussed above, promulgation of an interim final 
rule without prior notice or opportunity to comment is in the public 
interest because it avoids creation of a regulatory gap and the adverse 
impacts associated with such a gap. The requirements and procedures in 
the interim final rules have gained widespread acceptance among State 
regulatory authorities. Furthermore, most provisions of the rules being 
promulgated today are substantively identical to those previously 
promulgated in accordance with the standard notice and comment 
procedures of the APA. The only substantive changes are those that 
address the specific provisions that the court found to be in conflict 
with, or

[[Page 19452]]

potentially in conflict with, the ``unmistakably clear'' language of 
section 510(c) of SMCRA.
    Using the same rationale, OSM also is availing itself of the good 
cause exemption at 5 U.S.C. 553(d)(3) to the APA requirement that rules 
be published at least 30 days prior to their effective date. To avoid 
any regulatory gap, the effective date of the rules being published 
today is April 3, 1997.
    The interim final rules being published today are only interim 
measures intended to ensure that implementation of the court's decision 
does not result in a regulatory gap or substantial confusion in the 
regulatory community or the regulated industry. OSM is committed to 
exploring various methods of implementing the court's observation in 
NMA-O&C that ``OSM has leeway in determining who the `applicant' is.'' 
Id. at 695. The agency intends to seek public comment on any resulting 
proposed regulatory changes.

III. Discussion of Interim Final Rules

    The rulemaking actions that OSM is taking today remedy the defects 
identified by the court in NMA-O&C. They also preserve those aspects of 
the previous rules to which the court expressed no specific objection. 
These measures are needed to fully and properly implement the permit 
block sanction of section 510(c) of SMCRA and to flesh out other 
statutory provisions, such as the permit application information 
requirements of paragraphs (b)(4) and (b)(5) of section 507 of the Act.
    Nothing in the following findings or the rules to which they 
pertain affects the regulatory authority's power or responsibility to 
determine whether the nominal applicant is the true applicant to which 
the court refers. Nor do these findings or rules affect the regulatory 
authority's power to pierce the corporate veil or to withhold a permit, 
which, if issued, would violate a court order.

A. Section 773.5--Definitions

    On October 3, 1988 (53 FR 38868), OSM amended its regulations at 30 
CFR 773.5 by adding a definition of the terms ``owned or controlled'' 
and ``owns or controls.'' This definition determines, in part, what 
type of information a permit applicant must submit under 30 CFR 778.13 
and the circumstances under which the section 510(c) permit block 
sanction would apply under 30 CFR 773.15(b).
    The reach of the definition depends on the context in which these 
terms are used in a specific regulation. For example, as revised and 
repromulgated in this rulemaking in response to the court's decision, 
30 CFR 773.15(b) refers only to persons owned or controlled by the 
applicant or operations that the applicant controls or has controlled. 
Therefore, in this context, the definition would be used only to 
determine which entities the applicant owns or controls, not which 
entities own or control the applicant. As another example, 30 CFR 
778.13(c), as revised and repromulgated in this rulemaking, provides 
that a permit application must include identifying information about 
persons who own or control the applicant. In this context, the 
definition would be used to determine which individuals or entities own 
or control the applicant, not which entities are owned or controlled by 
the applicant. This information is needed to verify the applicant's 
statement under section 507(b)(5) of the Act concerning bond 
forfeitures and permit revocations for operations under common control 
with the applicant. It also incorporates the ownership and control 
information requirements of section 507(b)(4) of SMCRA, which, the 
court noted, requires information relevant to statutory provisions 
other than the section 510(c) permit block sanction, such as the 
individual civil penalty sanction of section 518(f) of the Act. This 
information would not, however, be used for purposes of blocking permit 
issuance under 30 CFR 773.15(b) in a manner inconsistent with the 
court's decision.
    Hence, the definition itself presents no conflict with the court's 
interpretation of section 510(c) of the Act in NMA--O&C, and OSM is 
repromulgating the definition without substantive change as part of the 
rulemaking action being published today. The rationale for the text of 
the definition is set forth in detail in the preamble to the 1988 
rulemaking at 53 FR 38868-80 (October 3, 1988).

B. Section 773.15(b)--Permit Block

    On October 3, 1988, OSM revised 30 CFR 773.15(b) to expand the 
scope of the compliance review of permit applications and to expressly 
require the withholding of a permit when persons who own or control the 
applicant own or control operations with unabated violations. In NMA--
O&C, the court held that this sanction applies only to violations 
incurred by the applicant or entities owned or controlled by the 
applicant, although the court left some room for the regulatory 
authority to determine the true applicant. Id. at 695. Therefore, the 
interim final rule being promulgated today does not include the 
language in the version of 30 CFR 773.15(b)(1) and (b)(3) promulgated 
in 1988 that applied the permit block sanction to violations incurred 
by persons who own or control the applicant.
    Since there is nothing in the remainder of the 1988 changes to 30 
CFR 773.15(b) (or the subsequent revisions in 1994 and 1995) that 
presents a conflict with the court's interpretation of section 510(c) 
of the Act in NMA--O&C, OSM is repromulgating the remainder of this 
paragraph without substantive change as part of the interim final rule 
being published today. The rationale for the other 1988, 1994, and 1995 
changes, which include criteria for conditional issuance of a permit, 
provisions concerning the presumption that a notice of violation is in 
the process of abatement, and a special exception for remaining 
operations, is set forth in detail in the preambles to the 1988 
rulemaking at 53 FR 38880-89 (October 3, 1988), the 1994 rulemaking at 
59 FR 4322-24 (October 28, 1994), and the 1995 rulemaking at 60 FR 
58482-86 (November 27, 1995).

C. Section 773.15(e)--Final Compliance Review

    On March 2, 1989 (54 FR 8982), OSM adopted 30 CFR 773.15(e), which 
required that before issuing a permit, the regulatory authority 
reconsider its initial compliance review in light of any new 
information submitted pursuant to 30 CFR 778.13(i) and 778.14(d). In 
NMA--O&C, the court was silent on this aspect of the permit information 
rule. Since its contents do not present a conflict with the court's 
findings concerning the scope of the section 510(c) permit block, OSM 
is repromulgating it in substantively identical form as part of this 
interim final rule. In keeping with the changes to 30 CFR 778.13, the 
new rule replaces the reference to 30 CFR 778.13(i) with a reference to 
its new designation, 30 CFR 778.13(k).

D. Section 773.17(i)--Permit Condition

    On March 2, 1989 (54 FR 8982), OSM adopted 30 CFR 773.17(i), which 
required that each permit include a condition obligating the permittee 
to update the information required by 30 CFR 778.13(c), which pertains 
to the identity and organizational position and relationship of persons 
who own or control the applicant, whenever the permittee receives a 
cessation order. The preamble to the 1989 rulemaking at 54 FR 8982-83 
explains that the purpose of this condition was to reveal the identity 
of persons who own or control the permittee, and then use the

[[Page 19453]]

information collected to block issuance of permits to these persons 
pursuant to 30 CFR 773.15(b). However, in NMA--O&C, the court held that 
section 510(c) of the Act does not allow the blocking of permit 
issuance on the basis of violations incurred by persons who own or 
control the applicant. Therefore, the information can no longer be used 
for its original purpose. However, as noted at 54 FR 8986 (March 2, 
1989) in the preamble to a related provision in 30 CFR 843.11(g), the 
information collected through this condition has other uses, such as 
the identification of persons against whom individual civil penalties 
may be assessed under 30 CFR Part 846 and section 518(f) of the Act. 
Therefore, OSM is repromulgating this permit condition in substantively 
identical form as part of the interim final rule being promulgated 
today, although its designation is now paragraph (h), which was 
previously reserved, instead of paragraph (i).

E. Section 773.20 and 773.21--Improvidently Issued Permits

    On April 28, 1989 (54 FR 18438), OSM promulgated 30 CFR 773.20 and 
773.21 to establish procedures and criteria for (1) determining when a 
permit had been improvidently issued, and (2) applying appropriate 
remedial measures. In NMA--O&C, the court struck down these rules based 
on a finding that they ``are centered on the ownership and control 
rule,'' which the court found to exceed the mandate of SMCRA. Id. at 
696. In support of its decision, the court pointed to the reference to 
ownership or control links in 30 CFR 773.20(b)(1)(iii).
    Accordingly, the interim final rule being published today replaces 
the term ``ownership or control link'' (and related language concerning 
ownership and control links and responsibility for violations, 
penalties, or fees) in 30 CFR 773.20(b)(1)(iii), 773.20(b)(2)(ii), and 
773.21(a)(4) with more specific language that applies the provisions of 
these rules only to situations in which the permittee or any person 
owned or controlled by the permittee is responsible for the violation, 
penalty, or fee.
    OSM also is revising 30 CFR 773.20(b)(1)(ii)(B), 773.20(c)(1) (i) 
and (ii), and 30 CFR 773.21(a) (2) and (3) to either eliminate the 
phrase ``the permittee or other person responsible'' or replace it with 
language that clarifies that the rule applies only to violations, 
penalties, and fees for which the permittee or persons owned or 
controlled by the permittee are responsible. OSM is making these 
changes to ensure that 30 CFR 773.20 and 773.21 are applied in a manner 
consistent with the revisions to 30 CFR 773.15(b) and the court's 
decision on the scope of section 510(c) of the Act.
    Since there is nothing in the remainder of the 1989 version of 30 
CFR 773.20 and 773.21 (or the subsequent revisions in 1994) that 
presents a conflict with the court's interpretation of section 510(c) 
of the Act in NMA--O&C, OSM is repromulgating the remainder of these 
sections without substantive change as part of the interim final rule 
being published today. The rationale for these procedural requirements 
and criteria for improvidently issued permit is set forth in detail in 
the preambles to the 1989 rulemaking at 54 FR 18439-62 (April 28, 1989) 
and the 1994 rulemaking at 59 FR 54325-29 (October 28, 1994). However, 
in view of the court decision and the changes in wording of these rules 
and 30 CFR 773.15(b), the discussions of ownership or control links in 
the preambles to previous versions of these rules no longer apply in 
full, especially Part II of the violations review criteria set forth in 
the April 28, 1989 preamble at 54 FR 18440-41. Similarly, the 
explanation of the meaning of ``other person responsible'' at 54 FR 
18447 under the heading ``Inconsistent Terminology'' and at 54 FR 18455 
under the heading ``Ownership and Control Relationships Covered'' is no 
longer fully applicable, especially since the revised versions of the 
rules no longer include this term.

F. Section 778.10--Information Collection

    In NMA--O&C at 696, the court struck down the permit information 
rule, of which this section was a part. Since the contents of this 
section do not present a conflict with the court's holding on the scope 
of the section 510(c) permit block sanction, OSM is repromulgating it 
in revised form as part of the interim final rule being published 
today. The revisions reflect current Departmental guidance concerning 
format and content.

G. Section 778.13--Organizational and Ownership Information 
Requirements for Permit Applications

    On March 2, 1989 (54 FR 8982), OSM promulgated revised permit 
application information requirements at 30 CFR 778.13 to conform these 
requirements to the definition of `` `owned or controlled or' `owns or 
controls' '' at 30 CFR 773.5. In NMA--O&C, the court struck down the 
revised rules based on a finding that they ``are centered on the 
ownership and control rule,'' which the court found to exceed the 
mandate of SMCRA. Id. at 696. In support of its decision, the court 
pointed to 30 CFR 778.13(d), which requires information pertaining to 
any surface coal mining operation owned or controlled by either the 
applicant or by any person who owns or controls the applicant under the 
definition of owned or controlled and owns or controls in 30 CFR 773.5.
    Accordingly, the interim final rule being published today modifies 
the language of former 30 CFR 778.13(d) [now 30 CFR 778.13(f)] to 
restrict its scope to operations owned or controlled by the applicant. 
OSM also is:
     Recodifying former 30 CFR 778.13(c)(4) as paragraph (d) 
and revising it to apply only to the applicant and each partner or 
principal shareholder of the applicant in accordance with the language 
of section 507(b)(4) of the Act;
     Recodifying former 30 CFR 778.13(c)(5) as paragraph (e) 
and revising it to apply only to the applicant in accordance with the 
language of section 507(b)(3) of the Act; and
     Redesignating former 30 CFR 778.13 (d) through (j) as 
paragraphs (f) through (l), respectively.
    Under revised 30 CFR 778.13(c), the application must continue to 
include identifying information about persons who own or control the 
applicant. This information is needed to verify the applicant's 
statement under section 507(b)(5) of the Act as to ``whether the 
applicant, any subsidiary, affiliate, or persons controlled by or under 
common control with the applicant'' has ever forfeited a mining bond or 
had a mining permit suspended or revoked within the 5-year period 
preceding the date of application. Revised 30 CFR 778.13(c) also is 
based upon and generally analogous to the ownership and control 
information requirements of section 507(b)(4) of SMCRA. The court noted 
that this section of the Act requires information relevant to statutory 
provisions other than the section 510(c) permit block sanction, such as 
the individual civil penalty sanction of section 518(f) of the Act. The 
court also observed that ``OSM or the state regulatory authority can 
use the information required under section 507(b) to determine who the 
real applicant is--i.e., to pierce the corporate veil in cases of 
subterfuge in order to ensure that it has the true applicant before 
it.'' Id. at 695. The information required under revised 30 CFR 
778.13(c) will improve the ability of OSM and state regulatory 
authorities to initiate these types of enforcement and compliance 
measures.
    Since there is nothing in the remainder of the 1989 version of 30 
CFR

[[Page 19454]]

778.13 that presents a conflict with the court's interpretation of 
section 510(c) of the Act in NMA--O&C, OSM is repromulgating the 
remainder of this section without substantive change (apart from 
redesignation of paragraphs) as part of the interim final rule being 
published today. The rationale for these permit application information 
requirements is set forth in the preamble to the 1989 rulemaking at 54 
FR 8983-90 (March 2, 1989).

H. Section 778.14--Compliance Information Requirements for Permit 
Applications

    On March 2, 1989 (54 FR 8982), OSM promulgated revised permit 
application information requirements at 30 CFR 778.14. Among other 
things, these regulations required information about unabated 
violations and other compliance data concerning persons who own or 
control the applicant. In NMA--O&C, the court struck down the revised 
rules based on a finding that they ``are centered on the ownership and 
control rule,'' which the court found to exceed the mandate of SMCRA by 
applying the permit block sanction of section 510(c) of the Act to 
violations incurred by persons who own or control the applicant. Id. at 
696.
    Accordingly, the interim final rule being published today modifies 
the language of former 30 CFR 778.14(c) to restrict its scope to the 
applicant and operations owned or controlled by the applicant. Since 
there is nothing in the remainder of the 1989 version of 30 CFR 778.14 
(or the subsequent 1994 revisions to that section) that presents a 
conflict with the court's interpretation of section 510(c) of the Act 
in NMA--O&C, OSM is repromulgating the remainder of this section 
without substantive change as part of the interim final rule being 
published today. The rationale for these permit application information 
requirements is set forth in the preambles to the 1989 rulemaking at 54 
FR 8985-90 (March 2, 1989) and the 1994 rulemaking at 59 FR 54347-49 
(October 28, 1994).

I. Section 843.11(g)--Notification Following Issuance of Cessation 
Order

    On March 2, 1989 (54 FR 8982), OSM amended its regulations by 
adding 30 CFR 843.11(g), which provides that, within 60 days of 
issuance of a cessation order in situations in which OSM is the 
regulatory authority, OSM must notify all owners and controllers 
identified under 30 CFR 778.13(c) that a cessation order has been 
issued and that they have been identified as owners or controllers of 
the violator. As explained in the preamble at 54 FR 8986, one of the 
purposes of this requirement is to provide notification to individual 
owners and controllers of a nature sufficient to establish a basis for 
the assessment of an individual civil penalty under section 518(f) of 
the Act and 30 CFR part 846 or its State program equivalent.
    Since this purpose and the language of the regulation itself do not 
present a conflict with the court's interpretation of section 510(c) of 
the Act in NMA--O&C, OSM is repromulgating 30 CFR 843.11(g) in 
substantively identical form as part of the interim final rule being 
published today. Unlike the previous rule, the new rule does not 
contain a reference to 30 CFR 778.13(d). While the latter rule is being 
repromulgated in revised form as 30 CFR 778.13(f) as part of this 
rulemaking, the revised version no longer includes information 
requirements pertinent to owners or controllers of the applicant. 
Therefore, it is no longer relevant to the requirements of 30 CFR 
843.11(g). OSM also is replacing the reference to 30 CFR 773.17(i) with 
a reference to 30 CFR 773.17(h) to reflect the new designation of the 
paragraph in question.

J. Section 843.21--Federal Procedures for Improvidently Issued State 
Permits

    On April 28, 1989 (54 FR 18438), OSM amended its regulations by 
adding 30 CFR 843.21 to provide a mechanism for Federal enforcement in 
those situations where the regulatory authority has failed to take 
appropriate actions under 30 CFR 773.20 with respect to an 
improvidently issued permit. In NMA--O&C, the court struck down this 
rule and related regulations based on a finding that they ``are 
centered on the ownership and control rule,'' which the court found to 
exceed the mandate of SMCRA. Id. at 696. In support of its decision, 
the court pointed to the reference to ownership or control links in 30 
CFR 773.20(b)(1)(iii).
    Accordingly, the interim final rule being published today replaces 
the term ``ownership or control link'' (and related language concerning 
ownership and control links and responsibility for violations, 
penalties, or fees) in 30 CFR 843.21(d) and (e)(2)(iii) with more 
specific language that applies the provisions of these rules only to 
situations in which the permittee or any person owned or controlled by 
the permittee is responsible for the violation, penalty, or fee.
    OSM also is revising 30 CFR 843.21(e)(2) (i) and (ii) to either 
eliminate the phrase ``the permittee or other person responsible'' or 
replace it with language that clarifies that the rule applies only to 
violations, penalties, and fees for which the permittee or persons 
owned or controlled by the permittee are responsible. OSM is making 
these changes to ensure that 30 CFR 843.21 is applied in a manner 
consistent with the revisions to 30 CFR 773.15(b) and the court's 
decision on the scope of section 510(c) of the Act.
    Since there is nothing in the remainder of the 1989 version of 30 
FR 843.21 that presents a conflict with the court's interpretation of 
section 510(c) of the Act in NMA--O&C, OSM is repromulgating the 
remainder of this section without substantive change as part of the 
interim final rule being published today. The rationale for the 
procedural requirements and enforcement provisions of 30 CFR 843.21 is 
set forth in detail in the preamble to the 1989 version of this rule at 
54 FR 18454-62 (April 28, 1989). However, the discussions of ownership 
or control links in that preamble no longer apply in full in view of 
the court decision and the wording changes in 30 CFR 843.21 (d) and 
(e). Similarly, the explanation of the meaning of ``other person 
responsible'' at 54 FR 18447 under the heading ``Inconsistent 
Terminology'' and at 54 FR 18455 under the heading ``Ownership and 
Control Relationships Covered'' is no longer fully applicable, 
especially since the revised version of 30 CFR 843.21 no longer 
includes this term.

K. Effect in Federal Program States and on Indian Lands

    Through cross-referencing in the respective regulatory programs, 
this rule will apply in the following Federal program States: Arizona, 
California, Georgia, Idaho, Massachusetts, Michigan, North Carolina, 
Oregon, Rhode island, South Dakota, Tennessee, and Washington. The 
Federal Programs for these States are codified at 30 CFR parts 903, 
905, 910, 912, 921, 922, 933, 937, 939, 941, 942 and 947, respectively. 
The rule also applies to Indian lands through cross-referencing in 30 
CFR part 750.

L. Effect on State Programs

    None of the rules being promulgated today will require changes in 
State regulatory programs under the standards set forth in section 503 
of SMCRA and 30 CFR part 732, provided States have fully amended their 
programs to be consistent with the previous versions of these Federal 
rules. If the Director determines that there are special circumstances 
in a particular State that result in a need for a State program 
amendment as a result of this rulemaking, she or he will notify the 
State in accordance with 30 CFR 732.17.

[[Page 19455]]

M. Comparison of Interim Final Rule Language with Prior Rule Language

    Set forth below is the text of the interim final rule showing all 
changes in paragraph designation and substantive changes in language 
from the version of the rules that currently appears in the Code of 
Federal Regulations. Deleted text is enclosed in brackets ([  ]). Added 
text appears in italics. Asterisks indicate no change in the existing 
text.
    This comparison is provided solely as a user aid in locating 
significant changes. It does not identify every minor editorial 
revision, and it does not include 30 CFR 778.10, the information 
collection section. It is not a substitute for the actual rule text 
that follows the preamble.

Sec. 773.5  Definitions.

    No substantive change.

Sec. 773.15  Review of permit applications.

    (a) * * *
    (b) Review of violations. (1) Based on a review of all 
reasonably available information concerning violation notices [and 
ownership or control links] involving either the applicant or any 
person owned or controlled by the applicant, including information 
obtained pursuant to Secs. 773.22, 773.23, 778.13, and 778.14 of 
this chapter, the regulatory authority may not issue the permit if 
any surface coal mining and reclamation operation owned or 
controlled by [either] the applicant [or by any person who owns or 
controls the applicant] is currently in violation of the Act, any 
Federal rule or regulation promulgated pursuant thereto, a State 
program, or any Federal or State law, rule, or regulation pertaining 
to air or water environmental protection. In the absence of a 
failure-to-abate cessation order, the regulatory authority may 
presume that a notice of violation issued pursuant to Sec. 843.12 of 
this chapter or under a Federal or State program is being corrected 
to the satisfaction of the agency with jurisdiction over the 
violation where the abatement period for the [such] notice of 
violation has not yet expired and where, as part of the violation 
information provided pursuant to Sec. 778.14 of this chapter, the 
applicant has provided certification that the [such] violation is in 
the process of being so corrected. This [such] presumption does not 
apply where evidence to the contrary is set forth in the permit 
application, or where the notice of violation is issued for 
nonpayment of abandoned mine land reclamation fees or civil 
penalties. If a current violation exists, the regulatory authority 
must require the applicant or any person [who owns or controls] 
owned or controlled by the applicant, before the issuance of the 
permit, to either:
    (i) Submit to the regulatory authority proof that the current 
violation has been or is in the process of being corrected to the 
satisfaction of the agency that has jurisdiction over the violation; 
or
    (ii) Establish for the regulatory authority that the applicant, 
or any person owned or controlled by [either] the applicant [or any 
person who owns or controls the applicant], has filed and is 
presently pursuing, in good faith, a direct administrative or 
judicial appeal to contest the validity of the current violation. If 
the initial judicial review authority under Sec. 775.13 of this 
chapter affirms the violation, then the applicant must, within 30 
days of the judicial action, submit the proof required under 
paragraph (b)(1)(i) of this section.
    (2) Any permit that is issued on the basis of a presumption 
supported by certification under Sec. 778.14 of this chapter that a 
violation is in the process of being corrected, on the basis of 
proof submitted under paragraph (b)(1)(i) of this section that a 
violation is in the process of being corrected, or pending the 
outcome of an appeal described in paragraph (b)(1)(ii) of this 
section, must be issued conditionally.
    (3) If the regulatory authority makes a finding that the 
applicant, [anyone who owns or controls the applicant,] or the 
operator specified in the application, controls or has controlled 
surface coal mining and reclamation operations with a demonstrated 
pattern of willful violations of the Act of such nature and 
duration, and with resulting irreparable damage to the environment 
as to indicate an intent not to comply with the Act, no permit may 
be issued. Before such a finding becomes final, the applicant or 
operator must be afforded an opportunity for an adjudicatory hearing 
on the determination as provided for in Sec. 775.11 of this chapter.
    (4) No substantive change.
    (c) * * *
    (d) * * *
    (e) Final compliance review. After an application is approved, 
but before the permit is issued, the regulatory authority must 
reconsider its decision to approve the application, based on the 
compliance review required by paragraph (b)(1) of this section in 
light of any new information submitted under sections [778.13(i)] 
778.13(k) and 778.14(d) of this chapter.

Sec. 773.17  Permit conditions.

* * * * *
    (h)[(i)] Within 30 days after a cessation order is issued under 
Sec. 843.11 of this chapter, or the State program equivalent, for 
operations conducted under the permit, except where a stay of the 
cessation order is granted and remains in effect, the permittee must 
either submit to the regulatory the following information, current 
to the date the cessation order was issued, or notify the regulatory 
authority in writing that there has been no charge since the 
immediately preceding submittal of such information:
    (1) Any new information needed to correct or update the 
information previously submitted to the regulatory authority by the 
permittee under Sec. 778.13(c) of this chapter; or
    (2) If not previously submitted, the information required from a 
permit applicant by Sec. 778.13(c) of this chapter.

Sec. 773.20  Improvidently issued permits: General procedures.

    (a) Permit review. A regulatory authority which has reason to 
believe that it improvidently issued a surface coal mining and 
reclamation permit must review the circumstances under which the 
permit was issued, using the criteria in paragraph (b) of this 
section. When the regulatory authority finds that the permit was 
improvidently issued, it must comply with paragraph (c) of this 
section.
    (b) Review criteria. (1) A regulatory authority must find that a 
surface coal mining and reclamation permit was improvidently issued 
if:
    (i) Under the violations review criteria of the regulatory 
program at the time the permit was issued:
    (A) The regulatory authority should not have issued the permit 
because of an unabated violation or a delinquent penalty or fee; or
    (B) The permit was issued on the presumption that a notice of 
violation was in the process of being corrected to the satisfaction 
of the agency with jurisdiction over the violation, but a cessation 
order subsequently was issued; and
    (ii) The violation, penalty, or fee:
    (A) Remains unabated or delinquent; and
    (B) Is not the subject of a good faith appeal, or of an 
abatement plan or payment schedule that is being met [with which the 
permittee or other person responsible is complying] to the 
satisfaction of the responsible agency; and
    (iii) [Where the] The permittee or any person owned or 
controlled by the permittee [was linked to the violation, penalty, 
or fee through ownership or control under the violations review 
criteria of the regulatory program at the time the permit was 
issued, an ownership or control link between the permittee and the 
person responsible for the violation, penalty, or fee still exists, 
or where the link has been severed, the permittee] continues to be 
responsible for the violation, penalty, or fee.
    (2) The provisions of Sec. 773.25 of this part apply whenever 
[shall be applicable when] a regulatory authority [determines] makes 
one of the following determinations:
    (i) Whether a violation, penalty, or fee existed at the time 
that it was cited, remains unabated or delinquent, has been 
corrected, is in the process of being corrected, or is the subject 
of a good faith appeal, and
    (iii) Whether [any ownership or control link between] the 
permittee or any person owned or controlled by the permittee 
continues to be [and the person] responsible for the violation, 
penalty, or fee [existed, still exists, or has been severed].
    (c) Remedial measures. (1) A regulatory authority which, under 
paragraph (b) of this section, finds that, because of an unabated 
violation or a delinquent penalty or fee, a permit was improvidently 
issued must use one or more of the following remedial measures:
    (i) Implement, with the cooperation of the responsible agency, 
the permittee, and persons owned or controlled by the permittee [or 
other person responsible, and of the responsible agency], a plan for 
abatement of the violation or a schedule for payment of the penalty 
or fee;
    (ii) Impose on the permit a condition requiring abatement of the 
violation or payment of the penalty or fee within [that in] a 
reasonable time [the permittee or other

[[Page 19456]]

person responsible abate the violation or pay the penalty or fee];
    (iii) Suspend the permit until the violation is abated or the 
penalty or fee is paid; or
    (iv) Rescind the permit.
    (2) If the regulatory authority decides to suspend the permit, 
it must afford at least 30 days written notice to the permittee. If 
the regulatory authority decides to rescind the permit, it must 
issue a notice in accordance with Sec. 773.21 of this part. In 
either case, the permittee must be given the opportunity to request 
administrative review of the notice under 43 CFR 4.1370 through 
4.1377, where OSM is the regulatory authority, or under the State 
program equivalent, where a State is the regulatory authority. The 
regulatory authority's decision will remain in effect during the 
pendency of the appeal, unless temporary relief is granted in 
accordance with 43 CFR 4.1376 or the State program equivalent.

Sec. 773.21  Improvidently issued permits: Rescission procedures.

    A regulatory authority which, under Sec. 773.20(c)(1)(iv) of 
this part, elects to rescind an improvidently issued permit must 
serve on the permittee a notice of proposed suspension and 
rescission which includes the reasons for the finding of the 
regulatory authority under Sec. 773.20(b) of this part and states 
that:
    (a) Automatic suspension and rescission. After a specified 
period of time not to exceed 90 days, the permit automatically will 
become suspended, and not to exceed 90 days thereafter rescinded, 
unless within those periods the permittee submits proof, and the 
regulatory authority finds, consistent with the provisions of 
Sec. 773.25 of this part, that:
    (1) The finding of the regulatory authority under Sec. 773.20(b) 
of this part was erroneous;
    (2) The [permittee or other person responsible has abated the] 
violation has been abated, [on which the finding was based,] or 
[paid] the penalty or fee paid, to the satisfaction of the 
responsible agency;
    (3) The violation, penalty, or fee is the subject of a good 
faith appeal, or of an abatement plan or payment schedule that is 
being met [with which the permittee or other person responsible is 
complying] to the satisfaction of the responsible agency; or
    (4) [Since the finding was made, the] The permittee and all 
persons owned or controlled by the permittee [has severed any 
ownership or control link with the person responsible for, and does 
not continue to be] are no longer responsible for the violation, 
penalty, or fee.
    (b) Cessation of operations. After permit suspension or 
rescission, the permittee must cease all surface coal mining and 
reclamation operations under the permit, except for violation 
abatement and for reclamation and other environmental protection 
measures as required by the regulatory authority.

Sec. 778.13  Identification of interests.

    An application must contain the following information, except 
that the submission of a social security number is voluntary;
    (a) A statement as to whether the applicant is a corporation, 
partnership, single proprietorship, association, or other business 
entity.
    (b) The name, address, telephone number, and, as applicable, 
social security number and employer identification number of the:
    (1) Applicant;
    (2) Applicant's resident agent; and
    (3) Person who will pay the abandoned mine land reclamation fee.
    (c) For each person who owns or controls the applicant under the 
definition of `` `owned or controlled' and `owns or controls' '' in 
Sec. 773.5 of this chapter, as applicable:
    (1) The person's name, address, social security number, and 
employer identification number;
    (2) The person's ownership or control relationship to the 
applicant, including percentage of ownership and location in the 
organizational structure; and
    (3) The title of the person's position, [and] the date that the 
person assumed the position, [was assumed,] and, when submitted 
under section [773.17(i)] 773.17(h) of this chapter, the date of 
departure from the position.
    [(4)] (d) For the applicant and each partner or principal 
shareholder of the applicant, each [additional] name and identifying 
number, including employer identification number, Federal or State 
permit number, and MSHA number with date of issuance, under which 
the person owns or controls, or previously owned or controlled, a 
surface coal mining and reclamation operation in the United States 
within the 5 years preceding the date of the application.[; and]
    [(5)] (e) The application number or other identifier of, and the 
regulatory authority for, any other pending surface coal mining 
operation permit application filed by the [person] applicant in any 
State in the United States.
    [(d)](f) For any surface coal mining operation owned or 
controlled by [either] the applicant [or by any person who owns or 
controls the applicant] under the definition of ``owned or 
controlled'' and ``owns or controls'' in Sec. 773.5 of this chapter, 
the operation's:
    (1) Name, address, identifying numbers, including employer 
identification number, Federal or State permit number and MSHA 
number, the date of issuance of the MSHA number, and the regulatory 
authority; and
    (2) Ownership or control relationship to the applicant, 
including percentage of ownership and location in organizational 
structure.
    [(e)](g) The name and address of each legal or equitable owner 
of record of the surface and mineral property to be mined, each 
holder of record of any leasehold interest in the property to be 
mined, and any purchaser of record under a real estate contract for 
the property to be mined.
    [(f)](h) The name and address of each owner of record of all 
property (surface and subsurface) contiguous to any part of the 
proposed permit area.
    [(g)](i) The Mine Safety and Health Administration (MSHA) 
numbers for all mine-associated structures that require MSHA 
approval.
    [(h)](j) A statement of all lands, interest in lands, options, 
or pending bids on interests held or made by the applicant for lands 
contiguous to the area described in the permit application. If 
requested by the applicant, any information required by this 
paragraph which is not on public file pursuant to State law must be 
held in confidence by the regulatory authority, as provided under 
Sec. 773.13(d)(3)(ii) of this chapter.
    [(i)](k) After an applicant is notified that his or her 
application is approved, but before the permit is issued, the 
applicant must, as applicable, update, correct or indicate that no 
change has occurred in the information previously submitted under 
paragraphs (a) through [(d)](f) of this section.
    [(j)](l) The applicant must submit the information required by 
this section and by Sec. 778.14 of this part in any format that OSM 
prescribes.

Sec. 778.14  Violation information.

    Each application must contain the following information:
    (a) A statement of whether the applicant or any subsidiary, 
affiliate, or persons controlled by or under common control with the 
applicant has:
    (1) Had a Federal or State coal mining permit suspended or 
revoked in the 5 years preceding the date of submission of the 
application; or
    (2) Forfeited a performance bond or similar security deposited 
in lieu of bond.
    (b) A brief explanation of the facts involved if any such 
suspension, revocation, or forfeiture referred to in paragraphs 
(a)(1) and (a)(2) of this section has occurred, including:
    (1) Identification number and date of issuance of the permit, 
and the date and amount of bond or similar security;
    (2) Identification of the authority that suspended or revoked 
the permit or forfeited the bond and the stated reasons for the 
action;
    (3) The current status of the permit, bond, or similar security 
involved;
    (4) The date, location, and type of any administrative or 
judicial proceedings initiated concerning the suspension, 
revocation, or forfeiture; and
    (5) The current status of the proceedings.
    (c) A list of all violation notices received by the applicant 
during the three-year period preceding the application date, and a 
list of all outstanding violation notices received prior to the date 
of the application by any surface coal mining operation that is 
deemed or presumed to be owned or controlled by [either] the 
applicant [or any person who is deemed or presumed to own or control 
the applicant] under the definition of ``owned or controlled'' and 
``owns or controls'' in Sec. 773.5 of this chapter. For each notice 
of violation issued pursuant to Sec. 843.12 of this chapter or under 
a Federal or State program for which the abatement period has not 
expired, the applicant must certify that such notice of violation is 
in the process of being corrected to the satisfaction of the agency 
with jurisdiction over the violation. For each violation notice 
reported, the list must include the following information, as 
applicable:
    (1) Any identifying numbers for the operation, including the 
Federal or State permit number and MSHA number, the dates of 
issuance of the violation notice and MSHA

[[Page 19457]]

number, the name of the person to whom the violation notice was 
issued, and the name of the issuing regulatory authority, department 
or agency;
    (2) A brief description of the violation alleged in the notice;
    (3) The date, location, and type of any administrative or 
judicial proceedings initiated concerning the violation, including, 
but not limited to, proceedings initiated by any person identified 
in paragraph (c) of this section to obtain administrative or 
judicial review of the violation;
    (4) The current status of the proceedings and of the violation 
notice; and
    (5) The actions, if any, taken by any person identified in 
paragraph (c) of this section to abate the violation.
    (d) After an applicant is notified that his or her application 
is approved, but before the permit is issued, the applicant must, as 
applicable, update, correct or indicate that no change has occurred 
in the information previously submitted under this section.

Sec. 843.11  Cessation orders.

* * * * *
    (g) Where OSM is the regulatory authority, within 60 days after 
issuing a cessation order, OSM will notify in writing any person who 
has been identified under sections [773.17(i)] 773.17(h) and 
778.13(c) (d)] of this chapter as owning or controlling the 
permittee, that the cessation order was issued and that the person 
has been identified as an owner or controller.

Sec. 843.21  Procedures for improvidently issued State permits.

    (a) Initial notice. If OSM has reason to believe that a State 
surface coal mining and reclamation permit meets the criteria for an 
improvidently issued permit in Sec. 773.20(b) of this chapter, or 
the State program equivalent, and the State has failed to take 
appropriate action on the permit under State program equivalents of 
Secs. 773.20 and 773.21 of this chapter, OSM will issue to the 
State, and should provide to the permittee, an initial notice 
stating in writing the reasons for that belief.
    (b) State response. Within 30 days of the date on which an 
initial notice is issued under paragraph (a) of this section, the 
State must demonstrate to OSM in writing either that:
    (1) The permit does not meet the criteria of Sec. 773.20(b) of 
this chapter, or the State program equivalent; or
    (2) The State is in compliance with the State program 
equivalents of Secs. 773.20 and 773.21 of this chapter.
    (c) Ten-day notice. If OSM finds that the State has failed to 
make the demonstration required by paragraph (b) of this section, 
OSM will issue to the State a ten-day notice stating in writing the 
reasons for that finding and requesting that within 10 days the 
State take appropriate action under the State program equivalents of 
Secs. 773.20 and 773.21 of this chapter;
    (d) Federal enforcement. After 10 days from the date on which a 
ten-day notice is issued under paragraph (c) of this section, if OSM 
finds that the State has failed to take appropriate action under the 
State program equivalents of Secs. 773.20 and 773.21 of this 
chapter, or to show good cause for such failure, OSM will take 
appropriate remedial action. Such remedial action may include the 
issuance to the permittee of a notice of violation requiring that by 
a specified date all mining operations must cease and reclamation of 
all areas for which a reclamation obligation exists must commence or 
continue unless, to the satisfaction of the responsible agency, any 
violation, penalty, or fee on which the notice of violation was 
based is abated or paid, an abatement plan or payment schedule is 
entered into, or [any ownership or control link with the person 
responsible for the violation, penalty or fee is severed and] the 
permittee and all persons owned or controlled by the permittee are 
no longer [does not continue to be] responsible for the violation, 
penalty, or fee. Under this paragraph, good cause does not include 
the lack of State program equivalents of Secs. 773.20 and 773.21 of 
this chapter.
    (e) Remedies to notice of violation. Upon receipt from any 
person of information concerning the issuance of a notice of 
violation under paragraph (d) of this section, OSM will review the 
information and:
    (1) Vacate the notice of violation if it resulted from an 
erroneous conclusion under this section; or
    (2) Terminate the notice of violation if:
    (i) [The permittee or other person responsible has, to the 
satisfaction of the responsible agency, abated any violation or paid 
any penalty or fee on which the notice of violation was based] All 
violations have been abated and all penalties or fees have been 
paid;
    (ii) The permittee or any [other] person [responsible] owned or 
controlled by the permittee has filed and is pursuing a good faith 
appeal of the violation, penalty, or fee, or has entered into and is 
complying with an abatement plan or payment schedule to the 
satisfaction of the responsible agency; or
    (iii) [Since the notice of violation was issued, the] The 
permittee [has severed any ownership or control link with the person 
responsible for, and does not continue to be] and all persons owned 
or controlled by the permittee are no longer responsible for the 
violation, penalty, or fee.
    (f) No civil penalty. OSM will not assess a civil penalty for a 
notice of violation issued under this section.

IV. Procedural Matters

A. Executive Order 12866

    This rule has been reviewed under the criteria of Executive Order 
12866.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The rule will not add to the cost of operating a mine under an approved 
regulatory program. Its provisions apply mainly to operators who 
previously operated mines in violation of the provisions of SMCRA and 
then failed to abate the violation or pay monetary civil penalties that 
were assessed. Further, most coal mining operations subject to these 
regulations do not engage in prohibited activities and practices, and, 
as a result, the aggregate economic impact of these revised regulations 
will be minimal, affecting only those who engage in prohibited behavior 
in violation of SMCRA.

C. Executive Order 12988 on Civil Justice Reform

    The Department of the Interior has determined that this rule meets 
the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988, 
``Civil Justice Reform'' (56 FR 55195).

D. Unfunded Mandates Reform Act

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

E. Federal Paperwork Reduction Act

    The Department of the Interior has determined that this rule does 
not contain collections of information which require approval by the 
Office of Management and Budget under 44 U.S.C. 3501 et seq. OMB has 
previously approved the collection activities and assigned clearance 
numbers 1029-0034- 1029-0041 to 30 CFR parts 778 and 773, respectively.

F. National Environmental Policy Act

    OSM has determined that this rulemaking action is categorically 
excluded from the requirement to prepare an environmental document 
under the National Environmental Policy Act of 1969, as amended, 42 
U.S.C. 4332 et seq. This determination was made in accordance with the 
Departmental Manual (516 DM 2, Appendix 1.10).
    Authors: The principal authors of this rule are Nancy Broderick and 
Dennis Rice, Office of Surface Mining Reclamation and Enforcement, U.S. 
Department of the Interior, 1951 Constitution Ave., NW., Washington, DC 
20240. Telephone: (202) 2028-2700 and 2829. E-mail address: 
[email protected] and [email protected].

List of Subjects

30 CFR Part 773

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.

[[Page 19458]]

30 CFR Part 778

    Reporting and recordkeeping requirements, Surface mining, 
Underground mining.

30 CFR Part 843

    Federal enforcement.

    Dated: April 11, 1997.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.

    For the reasons set forth in the preamble, the Department is 
amending 30 CFR parts 773, 778, and 843 as set forth below:

PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING

    1. The authority citation for part 773 is revised to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended; 16 U.S.C. 1531 et 
seq.; 16 U.S.C. 661 et seq.; 16 U.S.C. 703 et seq.; 16 U.S.C. 668a; 
16 U.S.C. 469 et seq.; 16 U.S.C. 470aa et seq.; and Pub. L. 100-34.

    2. In Sec. 773.5, the definition of `` `Owned or controlled' and 
`owns or controls' '' is revised to read as follows:


Sec. 773.5  Definitions.

* * * * *
    Owned or controlled and owns or controls mean any one or a 
combination of the relationships specified in paragraphs (a) and (b) of 
this definition:
    (a)(1) Being a permittee of a surface coal mining operation;
    (2) Based on instrument of ownership or voting securities, owning 
of record in excess of 50 percent of an entity; or
    (3) Having any other relationship which gives one person authority 
directly or indirectly to determine the manner in which an applicant, 
an operator, or other entity conducts surface coal mining operations.
    (b) The following relationships are presumed to constitute 
ownership or control unless a person can demonstrate that the person 
subject to the presumption does not in fact have the authority directly 
or indirectly to determine the manner in which the relevant surface 
coal mining operation is conducted:
    (1) Being an officer or director of an entity;
    (2) Being the operator of a surface coal mining operation;
    (3) Having the ability to commit the financial or real property 
assets or working resources of an entity;
    (4) Being a general partner in a partnership;
    (5) Based on the instruments of ownership or the voting securities 
of a corporate entity, owning of record 10 through 50 percent of the 
entity; or
    (6) Owning or controlling coal to be mined by another person under 
a lease, sublease or other contract and having the right to receive 
such coal after mining or having authority to determine the manner in 
which that person or another person conducts a surface coal mining 
operation.
* * * * *
    3. In Sec. 773.15, paragraphs (b) and (e) are revised to read as 
follows:


Sec. 773.15  Review of permit applications.

* * * * *
    (b) Review of violations. (1) Based on a review of all reasonably 
available information concerning violation notices involving either the 
applicant or any person owned or controlled by the applicant, including 
information obtained pursuant to Secs. 773.22, 773.23, 778.13, and 
778.14 of this chapter, the regulatory authority may not issue the 
permit if any surface coal mining and reclamation operation owned or 
controlled by the applicant is currently in violation of the Act, any 
Federal rule or regulation promulgated pursuant thereto, a State 
program, or any Federal or State law, rule, or regulation pertaining to 
air or water environmental protection. In the absence of a failure-to-
abate cessation order, the regulatory authority may presume that a 
notice of violation issued pursuant to Sec. 843.12 of this chapter or 
under a Federal or State program is being corrected to the satisfaction 
of the agency with jurisdiction over the violation where the abatement 
period for the notice of violation has not yet expired and where, as 
part of the violation information provided pursuant to Sec. 778.14 of 
this chapter, the applicant has provided certification that the 
violation is in the process of being so corrected. This presumption 
does not apply where evidence to the contrary is set forth in the 
permit application, or where the notice of violation is issued for 
nonpayment of abandoned mine land reclamation fees or civil penalties. 
If a current violation exists, the regulatory authority must require 
the applicant or any person owned or controlled by the applicant, 
before the issuance of the permit, to either:
    (i) Submit to the regulatory proof that the current violation has 
been or is in the process of being corrected to the satisfaction of the 
agency that has jurisdiction over the violation; or
    (ii) Establish for the regulatory authority that the applicant, or 
any person owned or controlled by the applicant, has filed and is 
presently pursuing, in good faith, a direct administrative or judicial 
appeal to contest the validity of the current violation. If the initial 
judicial review authority under Sec. 775.13 of this chapter affirms the 
violation, then the applicant must, within 30 days of the judicial 
action, submit the proof required under paragraph (b)(1)(i) of this 
section.
    (2) Any permit that is issued on the basis of a presumption 
supported by certification under Sec. 778.14 of this chapter that a 
violation is in the process of being corrected, on the basis of proof 
submitted under paragraph (b)(1)(i) of this section that a violation is 
in the process of being corrected, or pending the outcome of an appeal 
described in paragraph (b)(1)(ii) of this section, must be issued 
conditionally.
    (3) If the regulatory authority makes a finding that the applicant, 
or the operator specified in the application, controls or has 
controlled surface coal mining and reclamation operations with a 
demonstrated pattern of willful violations of the Act of such nature 
and duration, and with resulting irreparable damage to the environment 
as to indicate an intent not to comply with the Act, no permit may be 
issued. Before such a finding becomes final, the applicant or operator 
must be afforded an opportunity for an adjudicatory hearing on the 
determination as provided for in Sec. 775.11 of this chapter.
    (4)(i) Subsequent to October 24, 1992, the prohibitions of 
paragraph (b) of this section regarding the issuance of a new permit do 
not apply to any violation that:
    (A) Occurs after that date;
    (B) Is unabated; and
    (C) Results from an unanticipated event or condition that arises 
from a surface coal mining and reclamation operation on lands that are 
eligible for remining under a permit:
    (1) Issued before September 30, 1994, or any renewals thereof; and
    (2) Held by the person making application for the new permit.
    (ii) For permits issued under Sec. 785.25 of this chapter, an event 
or condition will be presumed to be unanticipated for the purposes of 
this paragraph if it:
    (A) Arose after permit issuance;
    (B) Was related to prior mining; and
    (C) Was not identified in the permit.
* * * * *
    (e) Final compliance review. After an application is approved, but 
before the permit is issued, the regulatory authority must reconsider 
its decision to approve the application, based on the compliance review 
required by paragraph (b)(1) of this section in light of any new 
information submitted under Secs. 778.13(k) and 778.14(d) of this 
chapter.

[[Page 19459]]

    4. In Sec. 773.17, paragraph (i) is redesignated as paragraph (h), 
which is revised to read as follows:


Sec. 773.17  Permit conditions.

* * * * *
    (h) Within 30 days after a cessation order is issued under 
Sec. 843.11 of this chapter, or the State program equivalent, for 
operations conducted under the permit, except where a stay of the 
cessation order is granted and remains in effect, the permittee must 
either submit to the regulatory authority the following information, 
current to the date the cessation order was issued, or notify the 
regulatory authority in writing that there has been no change since the 
immediately preceding submittal of such information:
    (1) Any new information needed to correct or update the information 
previously submitted to the regulatory authority by the permittee under 
Sec. 778.13(c) of this chapter; or
    (2) If not previously submitted, the information required from a 
permit application by Sec. 778.13(c) of this chapter.
    5. Sec. 773.20 is revised to read as follows:


Sec. 773.20  Improvidently issued permits: General procedures.

    (a) Permit review. A regulatory authority which has reason to 
believe that it improvidently issued a surface coal mining and 
reclamaiton permit must review the circumstances under which the permit 
was issued, using the criteria in paragraph (b) of this section. When 
the regulatory authority finds that the permit was improvidently 
issued, it must comply with paragraph (c) of this section.
    (b) Review criteria. (1) A regulatory authority must find that a 
surface coal mining and reclamation permit was improvidently issued if:
    (i) Under the violations review criteria of the regulatory program 
at the time the permit was issued:
    (A) The regulatory authority should not have issued the permit 
because of an unabated violation or a delinquent penalty or fee; or
    (B) The permit was issued on the presumption that a notice of 
violation was in the process of being corrected to the satisfaction of 
the agency with jurisdiction over the violation, but a cessation order 
subsequently was issued; and
    (ii) The violation, penalty, or fee:
    (A) Remains unabated or delinquent; and
    (B) Is not the subject of a good faith appeal, or of an abatement 
plan or payment schedule that is being met to the satisfaction of the 
responsible agency; and
    (iii) The permittee or any person owned or controlled by the 
permittee continues to be responsible for the violation, penalty, or 
fee.
    (2) The provisions Sec. 773.25 of this part apply whenever a 
regulatory authority makes one of the following determinations:
    (i) Whether a violation, penalty, or fee existed at the time that 
it was cited, remains unabated or delinquent, has been corrected, is in 
the process of being corrected, or is the subject of a good faith 
appeal, and
    (ii) Whether the permittee or any person owned or controlled by the 
permittee continues to be responsible for the violation, penalty, or 
fee.
    (c) Remedial measures. (1) A regulatory authority which, under 
paragraph (b) of this section, finds that, because of an unabated 
violation or a delinquent penalty or fee, a permit was improvidently 
issued must use one or more of the following remedial measures:
    (i) Implement, with the cooperation of the responsible agency, the 
permittee, and persons owned or controlled by the permittee, a plan for 
abatement of the violation or a schedule for payment of the penalty or 
fee;
    (ii) Impose on the permit a condition requiring abatement of the 
violation or payment of the penalty or fee within a reasonable time;
    (iii) Suspend the permit until the violation is abated or the 
penalty or fee is paid; or
    (iv) Rescind the permit.
    (2) If the regulatory authority decides to suspend the permit, it 
must afford at least 30 days written notice to the permittee. If the 
regulatory authority decides to rescind the permit, it must issued a 
notice in accordance with Sec. 773.21 of this part. In either case, the 
permittee must be given the opportunity to request administrative 
review of the notice under 43 CFR 4.1370 through 4.1370 through 4.1377, 
where OSM is the regulatory authority, or under the State program 
equivalent, where a State is the regulatory authority. The regulatory 
authority's decision will remain in effect during the pendency of the 
appeal, unless temporary relief is granted in accordance with 43 CFR 
4.1376 or the State program equivalent.
    6. Sec. 773.21 is revised to read as follows:


Sec. 773.21  Improvidently issued permits: Rescission procedures.

    A regulatory authority which, under Sec. 773.20(c)(1)(iv) of this 
part, elects to rescind an improvidently issued permit must serve on 
the permittee a notice of proposed suspension and rescission which 
includes the reasons for the finding of the regulatory authority under 
Sec. 773.20(b) of this part and states that:
    (a) Automatic suspension and rescission. After a specified period 
of time not to exceed 90 days, the permit automatically will become 
suspended, and not to exceed 90 days thereafter rescinded, unless 
within those periods the permittee submits proof, and the regulatory 
authority finds, consistent with the provisions of Sec. 773.25 of this 
part, that:
    (1) The finding of the regulatory authority under Sec. 773.20(b) of 
this part was erroneous;
    (2) The violation has been abated, or the penalty or fee paid, to 
the satisfaction of the responsible agency;
    (3) The violation, penalty, or fee is the subject of a good faith 
appeal, or of an abatement plan or payment schedule that is being met 
to the satisfaction of the responsible agency; or
    (4) The permittee and all persons owned or controlled by the 
permittee are no longer responsible for the violation, penalty, or fee.
    (b) Cessation of operations. After permit suspension or rescission, 
the permittee must cease all surface coal mining and reclamation 
operations under the permit, except for violation abatement and for 
reclamation and other environmental protection measures as required by 
the regulatory authority.

PART 778--PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR LEGAL, 
FINANCIAL, COMPLIANCE, AND RELATED INFORMATION

    7. The authority citation for Part 778 is revised to read as 
follows:

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

    8. Sec. 778.10 is revised to read as follows:


Sec. 778.10  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. Section 507(b) of SMCRA provides that 
persons applying for a permit to conduct surface coal mining operations 
must submit to the regulatory authority certain information regarding 
the applicant and affiliated entities, their compliance status and 
history, property ownership and other property rights, right of entry, 
liability insurance, the status of unsuitability claims, and proof of 
publication of a newspaper notice. The regulatory authority uses this 
information to insure that all legal,

[[Page 19460]]

financial and compliance requirements are satisfied prior to issuance 
of a permit. Persons seeking 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. 
The OMB clearance number for this part is 1029-0034.
    (b) OSM estimates that the public reporting and recordkeeping 
burden for this part averages 48 hours per response, 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 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, 
NW., Washington, DC 20240; and the Office of Management and Budget, 
Office of Information and Regulatory Affairs, Attention: Interior Desk 
Officer, 725 17th Street, NW, Washington, DC 20503. Please refer to OMB 
Control Number 1029-0034 in any correspondence.
    9. Sec. 778.13 is revised to read as follows:


Sec. 778.13  Identification of interests.

    An application must contain the following information, except that 
the submission of a social security number is voluntary:
    (a) A statement as to whether the applicant is a corporation, 
partnership, single proprietorship, association, or other business 
entity.
    (b) The name, address, telephone number, and, as applicable, social 
security number and employer identification number of the:
    (1) Applicant;
    (2) Applicant's resident agent; and
    (3) Person who will pay the abandoned mine land reclamation fee.
    (c) For each person who owns or controls the applicant under the 
definition of ```owned or controlled' and `owns or controls''' in 
Sec. 773.5 of this chapter, as applicable:
    (1) The person's name, address, social security number, and 
employer identification number;
    (2) The person's ownership or control relationship to the 
applicant, including percentage of ownership and location in the 
organizational structure; and
    (3) The title of the person's position, the date that the person 
assumed the position, and, when submitted under Sec. 773.17(h) of this 
chapter, the date of departure from the position.
    (d) For the applicant and each partner or principal shareholder of 
the applicant, each name and identifying number, including employer 
identification number, Federal or State permit number, and MSHA number 
with date of issuance, under which the person owns or controls, or 
previously owned or controlled, a surface coal mining and reclamation 
operation in the United States within the 5 years preceding the date of 
the application.
    (e) The application number or other identifier of, and the 
regulatory authority for, any other pending surface coal mining 
operation permit application filed by the applicant in any State in the 
United States.
    (f) For any surface coal mining operation owned or controlled by 
the applicant under the definition of ``owned or controlled'' and 
``owns or controls'' in Sec. 773.5 of this chapter, the operation's:
    (1) Name, address, identifying numbers, including employer 
identification number, Federal or State permit number and MSHA number, 
the date of issuance of the MSHA number, and the regulatory authority; 
and
    (2) Ownership or control relationship to the applicant, including 
percentage of ownership and location in organizational structure.
    (g) The name and address of each legal or equitable owner of record 
of the surface and mineral property to be mined, each holder of record 
of any leasehold interest in the property to be mined, and any 
purchaser of record under a real estate contract for the property to be 
mined.
    (h) The name and address of each owner of record of all property 
(surface and subsurface) contiguous to any part of the proposed permit 
area.
    (i) The Mine Safety and Health Administration (MSHA) numbers for 
all mine-associated structures that require MSHA approval.
    (j) A statement of all lands, interest in lands, options, or 
pending bids on interests held or made by the applicant for lands 
contiguous to the area described in the permit application. If 
requested by the applicant, any information required by this paragraph 
which is not on public file pursuant to State law must be held in 
confidence by the regulatory authority, as provided under 
Sec. 773.13(d)(3)(ii) of this chapter.
    (k) After an applicant is notified that his or her application is 
approved, but before the permit is issued, the applicant must, as 
applicable, update, correct or indicate that no change has occurred in 
the information previously submitted under paragraphs (a) through (f) 
of this section.
    (l) The applicant must submit the information required by this 
section and by Sec. 778.14 of this part in any format that OSM 
prescribes.
    10. Sec. 778.14 is revised to read as follows:


Sec. 778.14  Violation information

    Each application must contain the following information:
    (a) A statement of whether the applicant or any subsidiary, 
affiliate, or persons controlled by or under common control with the 
applicant has:
    (1) Had a Federal or State coal mining permit suspended or revoked 
in the 5 years preceding the date of submission of the application; or
    (2) Forfeited a performance bond or similar security deposited in 
lieu of bond.
    (b) A brief explanation of the facts involved in any such 
suspension, revocation, or forfeiture referred to in paragraphs (a)(1) 
and (a)(2) of this section has occurred, including:
    (1) Identification number and date of issuance of the permit, and 
the date and amount of bond or similar security;
    (2) Identification of the authority that suspended or revoked the 
permit or forfeited the bond and the stated reasons for the action;
    (3) The current status of the permit, bond, or similar security 
involved;
    (4) The date, location, and type of any administrative or judicial 
proceedings initiated concerning the suspension, revocation, or 
forfeiture; and
    (5) The current status of the proceedings.
    (c) A list of all violation notices received by the applicant 
during the three-year period preceding the application date, and a list 
of all outstanding violation notices received prior to the date of the 
application by any surface coal mining operation that is deemed or 
presumed to be owned or controlled by the applicant under the 
definition of ``owned or controlled'' and ``owns or controls'' in 
Sec. 773.5 of this chapter. For each notice of violation issued 
pursuant to Sec. 843.12 of this chapter or under a Federal or State 
program for which the abatement period has not expired, the applicant 
must certify that such notice of violation is in the process of being 
corrected to the satisfaction of the agency with jurisdiction over the 
violation. For each violation notice reported, the list must include 
the following information, as applicable:
    (1) Any identifying numbers for the operation, including the 
Federal or State

[[Page 19461]]

permit number and MSHA number, the dates of issuance of the violation 
notice and MSHA number, the name of the person to whom the violation 
notice was issued, and the name of the issuing regulatory authority, 
department or agency;
    (2) A brief description of the violation alleged in the notice;
    (3) The date, location, and type of any administrative or judicial 
proceedings initiated concerning the violation, including, but not 
limited to, proceedings initiated by any person identified in paragraph 
(c) of this section to obtain administrative or judicial review of the 
violation;
    (4) The current status of the proceedings and of the violation 
notice; and
    (5) The actions, if any, taken by any person identified in 
paragraph (c) of this section to abate the violation.
    (d) After an applicant is notified that his or her application is 
approved, but before the permit is issued, the applicant must, as 
applicable, update, correct or indicate that no change has occurred in 
the information previously submitted under this section.

PART 843--FEDERAL ENFORCEMENT

    11. The authority citation for part 843 is revised to read as 
follows:

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

    12. In Sec. 843.11, paragraph (g) is revised to read as follows:


Sec. 843.11  Cessation orders.

* * * * *
    (g) Where OSM is the regulatory authority, within 60 days after 
issuing a cessation order, OSM will notify in writing any person who 
has been identified under Secs. 773.17(h) and 778.13(c) of this chapter 
as owning or controlling the permittee that the cessation order was 
issued and that the person has been identified as an owner or 
controller.
    13. Sec. 843.21 is revised to read as follows:


Sec. 843.21  Procedures for improvidently issued State permits.

    (a) Initial notice. If OSM has reason to believe that a State 
surface coal mining and reclamation permit meets the criteria for an 
improvidently issued permit in Sec. 773.20(b) of this chapter, or the 
State program equivalent, and the State has failed to take appropriate 
action on the permit under State program equivalents of Secs. 773.20 
and 773.21 of this chapter, OSM will issue to the State, and should 
provide to the permittee, an initial notice stating in writing the 
reasons for that belief.
    (b) State response. Within 30 days of the date on which an initial 
notice is issued under paragraph (a) of this section, the State must 
demonstrate to OSM in writing either that:
    (1) The permit does not meet the criteria of Sec. 773.20(b) of this 
chapter, or the State program equivalent; or
    (2) The State is in compliance with the State program equivalents 
of Secs. 773.20 and 773.21 of this chapter.
    (c) Ten-day notice. If OSM finds that the State has failed to make 
the demonstration required by paragraph (b) of this section, OSM will 
issue to the State a ten-day notice stating in writing the reasons for 
that finding and requesting that within 10 days the State take 
appropriate action under the State program equivalents of Secs. 773.20 
and 773.21 of this chapter.
    (d) Federal enforcement. After 10 days from the date on which a 
ten-day notice is issued under paragraph (c) of this section, if OSM 
finds that the State has failed to take appropriate action under the 
State program equivalents of Secs. 773.20 and 773.21 of this chapter, 
or to show good cause for such failure, OSM will take appropriate 
remedial action. Such remedial action may include the issuance to the 
permittee of a notice of violation requiring that by a specified date 
all mining operations must cease and reclamation of all areas for which 
a reclamation obligation exists must commence or continue unless, to 
the satisfaction of the responsible agency, any violation, penalty, or 
fee on which the notice of violation was based is abated or paid, an 
abatement plan or payment schedule is entered into, or the permittee 
and all persons owned or controlled by the permittee are no longer 
responsible for the violation, penalty, or fee. Under this paragraph, 
good cause does not include the lack of State program equivalents of 
Secs. 773.20 and 773.21 of this chapter.
    (e) Remedies to notice of violation. Upon receipt from any person 
of information concerning the issuance of a notice of violation under 
paragraph (d) of this section, OSM will review the information and:
    (1) Vacate the notice of violation if it resulted from an erroneous 
conclusion under this section; or
    (2) Terminate the notice of violation if:
    (i) All violations have been abated and all penalties or fees have 
been paid;
    (ii) The permittee or any person owned or controlled by the 
permittee has filed and is pursuing a good faith appeal of the 
violation, penalty, or fee, or has entered into and is complying with 
an abatement plan or payment schedule to the satisfaction of the 
responsible agency; or
    (iii) The permittee and all persons owned or controlled by the 
permittee are no longer responsible for the violation, penalty, or fee.
    (f) No civil penalty. OSM will not assess a civil penalty for a 
notice of violation issued under this section.

[FR Doc. 97-10247 Filed 4-21-97; 8:45 am]
BILLING CODE 4310-05-M