TITLE 30 -- MINERAL RESOURCES   
CHAPTER VII -- OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT,
     DEPARTMENT OF THE INTERIOR   

SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING   
PART 761 -- AREAS DESIGNATED BY ACT OF CONGRESS

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 subsistence 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.

[For the list of Final Rules affecting these sections, as published in the Federal Register, see 
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]

30 CFR 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.  

30 CFR 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.  

30 CFR 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. 

    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 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]  

EFFECTIVE DATE NOTE:  At 51 FR 41960, Nov. 20, 1986 in Sec. 761.5, the definition of significant
recreational, timber, economic, or other values incompatible with surface coal mining operations was suspended
insofar as the listed values are evaluated for compatibility solely in terms of reclaimability.

30 CFR 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 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]  

30 CFR 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]  

30 CFR 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 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]  

30 CFR 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]  

30 CFR 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]  

30 CFR 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. 18, 1999]  

30 CFR 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.  
________________________________________________________________________________

Paragraph Protected      Type of land   Agency         Applicable
of        feature        to which       responsible         definition
Sec.761.11                    request        for            of valid
that                     pertains       determination  existing
provides                                               rights
protection
(a)       National parks,     Federal        OSM            Federal*
          wildlife refuges,
          etc.
(a)       National parks,     Non-Federal         Regulatory          Federal* 
           wildlife refuges,             authority
           etc.
(b)       Federal lands  Federal        OSM            Federal*
           in national
           forests***
( c)      Public parks   Does not       Regulatory          Regulatory
           and historic   matter         authority           program**
           places
(d)       Public roads   Does not       Regulatory          Regulatory
                          matter         authority          p rogram**
(e)       Occupied       Does not       Regulatory          Regulatory
           dwellings           matter         authority           program**
(c)       Schools,       Does not       Regulatory          Regulatory
           churches,           matter         authority           program**
           parks, etc.
(g)       Cemeteries          Does not       Regulatory          Regulatory
                          matter         authority           program**
______________________________________________________________________________

* Definition in 30 CFR 761.5. 

** Definition in applicable State or Federal regulatory program under 30 CFR Chapter VII, Subchapter T.  

*** 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 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
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 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 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 Secs. 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.
773.13(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. 18, 1999]  

30 CFR 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 Secs.
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 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. 18, 1999]  

30 CFR Sec. 761.200      Interpretative rule related to subsistence 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]  



SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING   
PART 762 -- CRITERIA FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE COAL
     MINING OPERATIONS

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.
  
[For the list of Final Rules affecting these sections, as published in the Federal Register, see 
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]

30 CFR 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.  

30 CFR 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.  

30 CFR Sec. 762.5   Definitions.  

    For purposes of this part:  

    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]  

30 CFR 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.  

30 CFR 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 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.  

30 CFR 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.  

30 CFR 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]

SOURCE:  48 FR 41350, Sept. 14, 1983.  Redesignated at 64 FR 70837, Dec. 17, 1999

30 CFR 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.  



SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING   
PART 764 -- STATE PROCESSES FOR DESIGNATING AREAS UNSUITABLE FOR SURFACE COAL
     MINING OPERATIONS

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.

[For the list of Final Rules affecting these sections, as published in the Federal Register, see 
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]

30 CFR 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.  

30 CFR Sec. 764.10  Information collection.  

    The information collection requirements contained in Secs. 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.  

30 CFR 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 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.  

30 CFR 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 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.  

30 CFR 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 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]  

30 CFR 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.  

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

30 CFR 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. 

30 CFR 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.  

30 CFR 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.  

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


 

SUBCHAPTER F -- AREAS UNSUITABLE FOR MINING   
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

Sec.
769.1     Scope
769.10    Information collection
769.11    Who may submit a petition
769.12    Where to submit petitions
736.13    Contents of petitions
736.14    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.

[For the list of Final Rules affecting these sections, as published in the Federal Register, see 
"Regulation History - Changes to the Regulations Parts 700-890, 3/13/79 - 6/30/00".]

30 CFR 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.  

30 CFR 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.  

30 CFR 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.  

30 CFR 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.  

30 CFR 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.  

30 CFR Sec. 769.14  Initial processing, recording, 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:  

    (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]  

30 CFR 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.  

30 CFR 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 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.  

30 CFR 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.  

30 CFR 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 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.  

30 CFR 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.