Rule2026-03301
Rescission of the “Ten-Day Notices and Corrective Action for State Regulatory Program Issues” Rule, Issued April 9, 2024
Primary source
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Published
February 19, 2026
Effective
March 23, 2026
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
The Office of Surface Mining Reclamation and Enforcement ("OSMRE" or "OSM") is rescinding the "Ten-Day Notices and Corrective Action for State Regulatory Program Issues" rule adopted on April 9, 2024 (the "2024 Rule"), and replacing it, in large part, with the rule titled, "Clarification of Provisions Related to the Issuance of Ten-Day Notices to State Regulatory Authorities and Enhancement of Corrective Action for State Regulatory Program Issues," which was first adopted on November 24, 2020 (the "2020 Rule"). This final rule does make some minor modifications to the 2020 Rule to further streamline the process for OSM's coordination with State regulatory authorities, minimize duplication of efforts in the administration of the Surface Mining Control and Reclamation Act of 1977 ("SMCRA" or "the Act"), and appropriately recognize that State regulatory authorities are the primary regulatory authorities for non- Federal, non-Indian lands within their borders.
Full Text
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<title>Federal Register, Volume 91 Issue 33 (Thursday, February 19, 2026)</title>
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[Federal Register Volume 91, Number 33 (Thursday, February 19, 2026)]
[Rules and Regulations]
[Pages 7835-7855]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-03301]
[[Page 7835]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 733 and 842
[Docket No. OSM-2025-0018; S1D1S SS08011000 SX064A000 256S180110; S2D2S
SS08011000 SX064A000 25XS501520]
RIN 1029-AC89
Rescission of the ``Ten-Day Notices and Corrective Action for
State Regulatory Program Issues'' Rule, Issued April 9, 2024
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement
(``OSMRE'' or ``OSM'') is rescinding the ``Ten-Day Notices and
Corrective Action for State Regulatory Program Issues'' rule adopted on
April 9, 2024 (the ``2024 Rule''), and replacing it, in large part,
with the rule titled, ``Clarification of Provisions Related to the
Issuance of Ten-Day Notices to State Regulatory Authorities and
Enhancement of Corrective Action for State Regulatory Program Issues,''
which was first adopted on November 24, 2020 (the ``2020 Rule''). This
final rule does make some minor modifications to the 2020 Rule to
further streamline the process for OSM's coordination with State
regulatory authorities, minimize duplication of efforts in the
administration of the Surface Mining Control and Reclamation Act of
1977 (``SMCRA'' or ``the Act''), and appropriately recognize that State
regulatory authorities are the primary regulatory authorities for non-
Federal, non-Indian lands within their borders.
DATES: This rule is effective on March 23, 2026.
FOR FURTHER INFORMATION CONTACT: James Tyree, Chief, Division of
Regulatory Support, (202) 208-4479, <a href="/cdn-cgi/l/email-protection#6c0618151e09092c031f011e09420b031a"><span class="__cf_email__" data-cfemail="472d333e3522220728342a352269202831">[email protected]</span></a>. Individuals in
the United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
I. Statutory and Regulatory Background
II. Summary of Final Rule Provisions
III. Public Comments and Responses
A. Overview of Comments
B. Rule Basis and Justification
C. Removal of the Definitions in Existing Sec. 842.5
D. Information Used for ``Reason To Believe'' Determinations
E. ``Person[s]'' Subject to a TDN
F. Types of Possible Violations
G. Similar Possible Violations
H. Action Plans as Appropriate Action
I. Request for Federal Inspection
J. Action Plans
K. Miscellaneous
IV. Severability
V. Procedural Determinations
I. Statutory and Regulatory Background
SMCRA allows States with federally approved programs to regulate
surface coal mining and reclamation operations on non-Federal, non-
Indian lands within their borders. See, e.g., 30 U.S.C. 1253. Once a
State regulatory program is approved, ``the State's laws and
regulations implementing the program become operative for the
regulation of surface coal mining, and the State officials administer
the program, giving the State `exclusive jurisdiction over the
regulation of surface coal mining' within its borders . . . .'' Bragg
v. W. Va. Coal Ass'n, 248 F.3d 275, 288 (4th Cir. 2001) (internal
citations omitted). In general, even after a State receives primary
jurisdiction (``primacy'') to administer SMCRA, SMCRA continues to
provide the Secretary of the Interior (the Secretary) with oversight
authority regarding the State regulatory program and limited ongoing
enforcement authority in two separate scenarios: (1) when the Secretary
has reason to believe there have been violations of SMCRA, and (2)
where the Secretary has reason to believe that violations of an
approved State program are due to a State regulatory authority not
properly enforcing its State program. 30 U.S.C. 1271(a) and (b).
In the first scenario, for a non-imminent harm situation, the
Secretary can issue a notice, known as a ``ten-day notice'' (TDN), to a
State regulatory authority if the Secretary has a ``reason to believe''
that ``any person is in violation of any requirement of [SMCRA].'' Id.
Sec. 1271(a) (emphasis added). SMCRA directs the Secretary to
determine whether there is a potential violation ``on the basis of any
information available to him.'' Id. (emphasis added). If so, SMCRA
provides that the Secretary, acting through the Director of OSM, will
issue a TDN to the State regulatory authority. A TDN gives the State
regulatory authority ten days to respond to OSM to show that it either
has taken ``appropriate action'' to ``cause said violation to be
corrected'' or to show ``good cause'' for not doing so. Id. Under
certain circumstances, such as if the State regulatory authority fails
to respond in ten days or if OSM disagrees with the State's response to
the TDN, the Secretary is authorized to conduct a Federal inspection.
When a person provides adequate proof that an imminent danger of
significant environmental harm exists and the State has failed to take
appropriate action, the TDN process is waived, and OSM would then
conduct a Federal inspection. Id.
In the second scenario, SMCRA provides a separate enforcement
process if the Secretary suspects that a violation of an approved State
program is due to a failure on the part of the State to properly
enforce its approved program. Id. Sec. 1271(b). Here, the Secretary
must issue ``public notice'' and ``hold a hearing thereon in the State
within thirty days of such notice.'' Id. If the Secretary finds that
there are violations stemming from the State's failure to enforce its
own State program effectively and the State ``has not adequately
demonstrated its capability and intent to enforce such State program,''
the Secretary must take over the enforcement and issuance of permits in
that State. Id.; see also 30 U.S.C. 1254(a).
SMCRA requires the Secretary, acting through OSM, to, among other
things, ``publish and promulgate such rules and regulations as may be
necessary to carry out the provisions of [SMCRA]'' and to ``cooperate
with . . . State regulatory authorities to minimize duplication of
inspections, enforcement, and administration of [SMCRA].'' 30 U.S.C.
1211(c)(2) and (12). The Secretary first exercised his authority to
regulate the TDN process in 1979. See 44 FR 14902 (Mar. 13, 1979). OSM
revised this rule in 1982, including by adding a requirement that a
person who requests a Federal inspection must also notify the State
regulatory authority. See 47 FR 35620, 35628 (Aug. 16, 1982). OSM
modified the regulation again in 1988, including to add updated
definitions for ``appropriate action'' and ``good cause'' and to
recognize that a State regulatory authority could get extensions if
necessary to conduct an investigation into a potential violation. 53 FR
26728, 26729, 26736 (July 14, 1988).
In 2020, OSM again revised the TDN Rule for two primary purposes:
(1) to enhance the early identification of State regulatory program
issues so that they could be corrected programmatically, and (2) to
clarify and reduce duplication in the Federal regulations related to
OSM's processing of citizen complaints
[[Page 7836]]
and the issuance of TDNs to State regulatory authorities. 85 FR 75150
(Nov. 24, 2020). As OSM summarized in 2020: ``The final rule is
consistent with SMCRA and will add transparency to OSMRE's oversight
responsibilities; promote regulatory certainty for State regulatory
authorities, regulated entities, and the public; enhance OSMRE's
relationship with the State regulatory authorities; reduce redundancy
in inspection and enforcement; and streamline the process for notifying
State regulatory authorities of possible violations.'' Id. at 75151.
After its promulgation, several citizen groups challenged the 2020
Rule. See Citizens Coal Council v. De la Vega, No. 1:21-cv-195 (D.D.C.
filed Jan. 22, 2021). However, the court stayed that case in response
to a joint motion of the parties after OSM announced in the Fall 2021
Unified Agenda, published by the Regulatory Information Service Center
within the General Services Administration, in cooperation with the
Office of Information and Regulatory Affairs (OIRA), which is part of
the Office of Management and Budget (OMB), that ``OSMRE is re-examining
its regulation on ten-day notices that went into effect on December 24,
2020.'' See Joint Motion to Stay Proceedings at paragraph 3, Citizens
Coal Council v. De la Vega, No. 1:21-cv-195 (D.D.C. Nov. 30, 2021).
OSM's re-examination of the 2020 Rule culminated in the publication
of the 2024 Rule on April 9, 2024, which amended portions of the 2020
Rule. 89 FR 24714 (Apr. 9, 2024). The 2024 Rule stated that it was
further clarifying the 2020 Rule to, among other things, ``increase
efficiency and to make it easier for citizens to report possible
violations . . . .'' See id. (adopting the rationale in the preamble to
the proposed rule) and 88 FR 24944, 24948 (Apr. 25, 2023) (proposed
rule). Although the preamble to the proposed rule for the 2024 Rule
stated that it would ``afford our State regulatory authority partners
due deference during the TDN process to an extent that is appropriate
under SMCRA'', 88 FR at 24944, at least 14 States, State agencies, and
attorneys general disagreed and almost immediately filed suit
challenging the legality of the 2024 Rule. See Indiana v. Haaland, No.
1:24-cv-1665 (D.D.C. filed June 7, 2024). Among other things, these
States alleged that the 2024 Rule improperly usurps SMCRA's deference
to States and that it:
subjects state decisions over which the Act affords States exclusive
jurisdiction, such as permitting decisions, to federal oversight
through ten-day notices. The Final Rule seeks to make the federal
government the regulator of first resort in other ways too. It discards
requirements that citizens contact state regulators with concerns
before contacting the federal government. It imposes inflexible,
arbitrary timelines on States to complete complex investigations
without regard for facts on the ground, setting up federal regulators
to swoop in. And the Final Rule illogically requires the Secretary to
blind herself to information in States' possession in determining
whether there is reason to believe that a violation exists, even if
that information could establish beyond doubt that none exists.
Complaint at paragraph 4, Indiana v. Haaland, No. 1:24-cv-1665 (D.D.C.
filed June 7, 2024). As part of this ongoing litigation, several States
submitted declarations detailing the alleged harms to their interests
caused by the 2024 Rule. See, e.g., Exhibits 1-3 of Petitioners' Motion
for Summary Judgment and Statement of Material Facts, Indiana v.
Haaland, No. 1:24-cv-1665 (D.D.C. filed Dec. 17, 2024).
Meanwhile, on January 20, 2025, the President declared a national
energy emergency and directed agencies, such as OSM, to unleash
American energy. See Executive Order (``E.O.'') 14156 ``Declaring a
National Energy Emergency'' and E.O. 14154 ``Unleashing American
Energy.'' As part of this effort, E.O. 14154 directs OSM to ``ensure
that all regulatory requirements related to energy are grounded in
clearly applicable law.'' E.O. 14154 Sec. 2(d). In addition, the
Secretary identified the 2024 Rule as a regulation to be suspended,
repealed, or amended in order to unleash American energy. Secretary's
Order 3418 Sec. 4.b. Moreover, on April 8, 2025, the President
specifically recognized that ``[o]ur Nation's beautiful clean coal
resources will be critical to meeting the rise in electricity demand
due to the resurgence of domestic manufacturing and the construction of
artificial intelligence data processing centers.'' E.O. 14261
``Reinvigorating America's Beautiful Clean Coal Industry and Amending
Executive Order 14241'' Sec. 1.
As discussed in the preamble to the 2025 proposed rule, OSM is
revising the 2024 Rule to align the Federal regulations with clearly
applicable law and to ``streamline the process for OSMRE's coordination
with State regulatory authorities to minimize duplication of efforts in
the administration of SMCRA and appropriately recognize that State
regulatory authorities are the primary regulatory authorities of non-
Federal, non-Indian lands within their borders.'' 90 FR 25174 (Jun. 16,
2025).
II. Summary of Final Rule Provisions
As explained fully in the preamble to the 2025 proposed rule, the
Department of the Interior (``the Department'') proposed to return the
Federal regulations back to the 2020 Rule to better align the Federal
regulations with the single, best meaning of SMCRA and streamline OSM's
coordination with State regulatory authorities to ensure that the goals
of SMCRA are achieved while granting the appropriate deference to State
regulatory authorities under this cooperative federalism statute. See
90 FR at 25174. As part of this rulemaking process, OSM reviewed the
preambles to the proposed and final 2020 Rule, which fully explained
its rationale for the regulatory changes resulting in the 2020 Rule, to
ensure that the analysis continues to reflect OSM's position, and,
except as otherwise stated in the preambles to the 2025 proposed rule
and this final rule, OSM adopts them here and directs the reader to
those preambles for a more detailed rationale and section-by-section
analysis. 85 FR 28904 (May 14, 2020); 85 FR 75150 (Nov. 24, 2020).
Moreover, after further consideration and review of the comments
received in response to the 2025 proposed rule, the Department is
adopting the regulatory provisions as proposed on June 16, 2025, with a
few minor changes.
First, OSM is, in large part, retaining the definitions of ``action
plan'' and ``State regulatory program issue'' from the 2024 Rule
because OSM determined the wording to be clearer than the 2020 Rule.
Notably, within the definition of ``action plan,'' OSM added language
to make clear that OSM typically works with the State regulatory
authority to develop the action plan. The 2024 Rule already included
this concept at existing Sec. 733.12(b) but putting it in the
definition emphasizes the cooperation between OSM and the State
regulatory authority to correct a State regulatory program issue. For
``State regulatory program issue,'' OSM retained the minor non-
substantive edits to the first sentence of the definition made by the
2024 Rule, but OSM removed the last sentence, which was not in the 2020
Rule. By removing this sentence, OSM is clarifying that State
regulatory program issues may no longer be resolved under part 842.
Second, OSM is retaining the minor editorial changes that the 2024
Rule made to Sec. 733.12(a), which explains what the OSM Director
should do once a State regulatory program issue is identified. OSM
finds that the 2024 Rule
[[Page 7837]]
was clearer in the language in this section than in the proposal and
the 2020 Rule.
Third, in response to a comment, OSM is replacing ``concludes''
with ``has reason to believe'' in the final version of Sec.
733.12(a)(2). This change inserts the appropriate standard that the OSM
Director will follow when determining whether a State regulatory
authority is not effectively implementing, administering, enforcing, or
maintaining all or a portion of its approved program. As the commenter
noted, ``concludes'' implies that the Director has already made a
decision about whether a State regulatory authority is not effectively
implementing, administering, enforcing, or maintaining all or a portion
of its approved program even though he or she has not followed the
procedures set forth in Sec. 733.13 to reach that conclusion.
Replacing ``concludes'' with ``has reason to believe'' better aligns
the Federal regulations with the statutory structure of SMCRA and the
cooperative federalism framework.
Fourth, OSM is retaining some minor editorial changes from the 2024
Rule in Sec. Sec. 733.12(b)(2) and (3) and 733.12(c). For example,
this final rule retains the use of the word ``specific'' from the 2024
Rule, instead of ``explicit'' in Sec. Sec. 733.12(b)(3)(iii) and (iv).
In addition, OSM is retaining the editorial changes from the 2024 Rule
in Sec. Sec. 733.12(b)(3)(iii) and (iv) that more accurately state
that a State regulatory program issue, rather than a ``violation'' or a
``problem,'' is what will be corrected by an action plan. To the extent
that a State regulatory program issue includes one or more violations
of SMCRA, this wording does not prohibit OSM from including corrective
actions for violations in the action plan.
Fifth, in Sec. 842.11(b)(1)(ii)(B)(1), OSM has decided to retain
some language from the 2024 Rule related to the issuance of a single
TDN for substantively similar possible violations. In the 2025 proposed
rule, OSM specifically requested comments about whether OSM should
retain this provision. See 90 FR at 25177. Commenters were
overwhelmingly supportive of the policy behind this provision, even if
they supported removing the language in furtherance of the deregulatory
agenda. For example, one commenter noted that ``OSMRE has always had
discretion'' to include multiple similar violations in a single TDN and
retention of the provision may not be necessary, but it could be
beneficial, particularly in light of websites that facilitate public
letter-writing campaigns. Although this provision adds a sentence to
the regulations, OSM ultimately decided to retain it so that it would
be clear that OSM could include substantively similar possible
violations in a single TDN. As stated in the preamble to the 2024 Rule,
this grouping will allow OSM to be more efficient because it will not
have to write numerous, repetitive TDNs and the State regulatory
authority will not have to respond to numerous, repetitive TDNs.
Sixth, OSM is removing proposed Sec. 842.11(b)(1)(ii)(B)(4)(vi),
which was a duplicate of Sec. 842.11(b)(1)(ii)(B)(4)(v) and
erroneously included in the 2025 proposed rule.
Finally, in response to a comment, OSM is adding ``at the surface
mining site'' after the word ``exists'' at the end of the first
sentence of Sec. 842.12(a). This change will clarify that a citizen
request for a Federal inspection under the authority of section
517(h)(1) of SMCRA, 30 U.S.C. 1267(h)(1), must allege a violation at a
specific mine. This change better aligns the regulation with the
statutory provision. Notably, this provision only applies to a request
for a Federal inspection under section 517(h)(1) of SMCRA. This
regulation does not limit the Secretary's authority to consider any
readily available information when determining whether a reason to
believe a potential violation exists under section 521(a) of SMCRA. 30
U.S.C. 1271(a).
III. Public Comments and Responses
A. Overview of Comments
OSM published its proposed rule on June 16, 2025 (90 FR 25174) and
solicited public comments for 30 days. During the comment period, OSM
received 13 comments from members of the public, State governmental
units, trade associations, environmental advocacy groups, and private
companies. Eleven commenters were generally supportive of the proposed
rule, which proposed to return the regulations to those promulgated in
2020. Some of these commenters suggested further revisions to better
align the regulations with SMCRA and its cooperative federalism
principles. Only two commenters, including one joint comment from a
coalition of citizens groups, opposed the proposed rule; these
commenters generally opined that OSM should retain the 2024 Rule and
considered the 2025 proposed rule a rollback of citizen protections.
OSM considered each public comment in the development of this final
rule.
Comments received that are similar in nature have been categorized
by subject and, in some instances, have been combined with related
comments.
B. Rule Basis and Justification
Comment: Some commenters disputed OSM's assertion in the preamble
to the 2025 proposed rule that the 2020 Rule reflected the best reading
of the statute. Instead, these commenters opined that the 2024 Rule
reflects the best reading of the statute and that the proposed changes
are an abuse of discretion by OSM. Other commenters agreed that the
2020 Rule reflects the best reading of the statute.
Response: OSM agrees with the commenters that stated the 2020 Rule
reflects the best reading of the statute as a whole. As noted above,
SMCRA directs OSM to ``publish and promulgate such rules and
regulations as may be necessary to carry out the provisions of
[SMCRA]'' and to ``cooperate with . . . State regulatory authorities to
minimize duplication of inspections, enforcement, and administration of
[SMCRA].'' 30 U.S.C. 1211(c)(2) and (12). The 2020 Rule appropriately
interpreted other provisions of SMCRA, such as section 521(a)(1) of
SMCRA. 30 U.S.C. 1271(a)(1). For example, it maximized OSM's
cooperation with State regulatory authorities by providing, among other
things, that OSM can consider all readily available information before
deciding whether it has a reason to believe that a violation exists and
issuing a TDN to the State regulatory authority. Although a TDN is
simply a communication tool between OSM and the State regulatory
authority, it triggers administrative obligations for OSM--to issue the
TDN and review the State's response--and the State--to respond to OSM
within ten days. If OSM can rely on readily available information to
determine that there is no reason to believe a violation exists before
issuing a TDN, both the additional burden on the State regulatory
authority and unnecessary Federal oversight will be avoided.
Comment: Several commenters supported OSM's proposal to return to
the 2020 Rule because they considered the 2024 Rule to be burdensome
and unnecessary. They also reiterated criticisms they made to the
proposed 2024 Rule, which focused on OSM's alleged failure to
adequately consult with the State regulatory authorities before
promulgating the 2024 Rule. These commenters reiterated that the 2020
Rule best addresses the concerns of the State regulatory authorities
and reduces regulatory burdens.
Response: Although OSM followed all required notice and comment
[[Page 7838]]
procedures in promulgating the 2024 Rule, as well as this rule and the
2020 Rule, OSM acknowledges that it could have better engaged with the
key stakeholders--the State regulatory authorities--particularly about
the potential for increased administrative burdens resulting from the
2024 Rule. In response to these and other comments, OSM compared the
number of citizen complaints received and the number of citizen
complaints resulting in the issuance of one or more TDNs under the 2020
Rule and under the 2024 Rule. OSM found that OSM received more citizen
complaints and issued more TDNs to the State regulatory authorities
under the 2024 Rule. On average, OSM received approximately 16 citizen
complaints per year under the 2020 Rule and issued an average of 3 or
fewer TDNs per year. Under the 2024 Rule, OSM received approximately 23
citizen complaints per year and issued an average of 13 TDNs per year.
Of the citizen complaints received by OSM under the 2024 Rule and
resolved by December 2025, approximately 81 percent either did not
provide reason to believe a violation exists, meaning OSM did not issue
a TDN, or the State regulatory authority provided sufficient evidence
to demonstrate that there was good cause to not take action, usually
because the alleged action was not a violation under the State program.
Despite a difference in the volume of citizen complaints and TDNs,
Federal inspections and enforcement actions as a result of citizen
complaints were similar under both rules. These trends support OSM's
and the State regulatory authorities' observations that the 2024 Rule
led to a greater number of citizen complaints and TDNs. While it was
not possible to identify the exact cause of the increase in the number
of TDNs issued, some evidence points to the 2024 Rule's restrictions on
the types of information that OSM could use to make a reason to believe
determination. However, despite issuing more TDNs under the 2024 Rule,
in the majority of circumstances for those TDNs resolved before
publication of this final rule, OSM found that the State regulatory
authorities had already taken appropriate action or there was good
cause for not taking action, and there was no comparable increase in
Federal inspections or enforcement action. Although OSM recognizes the
small sample size, this data indicates that the 2024 Rule may have
increased the paperwork for OSM and the State regulatory authorities
related to reviewing citizen complaints and issuing and responding to
TDNs without any clear indication that it improved enforcement or
oversight of SMCRA. In light of the concerns raised by commenters and
OSM's experiences implementing both the 2020 and 2024 Rules, and in
support of this Administration's focus on removing regulatory burdens
(e.g., E.O. 14219 Sec. 3(a)), this final rule will largely revert to
the 2020 Rule.
Comment: A commenter reiterated comments first submitted in
response to the proposed rule for the 2024 Rule that alleged that OSM
did not adequately justify its decision to quickly reverse course from
the 2020 Rule. The commenter also contended that the 2024 Rule lacked a
reasonable basis and was arbitrary and capricious. As support, the
commenter opined that OSM's administrative record for the 2024 Rule was
unsupported by data or other evidence to show how the 2020 Rule either
delayed consideration of some possible violations or compromised
SMCRA's public protections.
Response: OSM understands the commenter's concerns about the
justification for the 2024 Rule, but it is not necessary for OSM to
revisit that justification in this rulemaking. This rulemaking will
rescind almost all of the 2024 Rule that the commenter contended
violated the Administrative Procedure Act.
Comment: Several commenters noted that another benefit of returning
to the 2020 Rule would be a decreased chance that operators would be
subject to differing interpretations of required standards by the State
regulatory authority and OSM, which should help with the production of
coal.
Response: OSM agrees with these commenters. Replacing the 2024 Rule
with a new rule that is substantially similar to the 2020 Rule will
help with this Administration's deregulatory efforts by reducing red-
tape associated with the TDN process, eliminating unnecessary dual
State and Federal regulations, and unleashing American energy to ensure
there is a sufficient domestic supply of coal. This coal, in turn, will
help strengthen our national security by enhancing supply chains in the
United States and for our allies.
C. Removal of the Definitions in Existing Sec. 842.5
As explained in the preamble to the 2025 proposed rule, OSM
proposed to remove the definitions of ``citizen complaint'' and ``ten-
day notice'' that the 2024 Rule added to 30 CFR 842.5.
Comment: Several commenters expressed support for the removal of
the definition of ``citizen complaint'' in Sec. 842.5. These
commenters noted that SMCRA does not include the term ``citizen
complaint'' and that the definition added by the 2024 Rule was
overbroad in light of the language in sections 517(h) and 521(a)(1) of
SMCRA. 30 U.S.C. 1267(h) and 1271(a)(1). Specifically, these commenters
noted that citizen complaints should be required to pertain to on-the-
ground conditions at an actual surface coal mining and reclamation
operation. They also stated that a citizen should have to include a
request for inspection to both OSM and the State regulatory authority,
and the rule should not make a request for inspection automatic, as the
2024 Rule did.
Response: For the first time, the 2024 Rule inserted a regulatory
definition of ``citizen complaint'' into a newly created 30 CFR 842.5.
In the preamble to the 2024 Rule, OSM stated that it intended for the
definition to provide clarity for what would be considered a citizen
complaint, which could trigger the TDN process. 89 FR at 24716.
In light of the Federal government's deregulatory initiative and as
further explained in the preamble to the 2025 proposed rule (see, e.g.,
90 FR at 25175-25176), OSM has determined that this definition is no
longer necessary as it is not grounded in clearly applicable law. E.O.
14154, Sec. 2(d). As the commenter noted, the term ``citizen
complaint'' is not found in SMCRA, and OSM successfully implemented
SMCRA's public participation requirements without such a definition for
over 45 years.
Moreover, although OSM promulgated this definition in the 2024 Rule
to clarify the meaning of the phrase and clarify that a citizen
complaint is intended for citizens to inform OSM of a possible
violation (89 FR at 24716), upon review of the statutory language, OSM
concludes that the definition improperly conflates the standards of two
statutory provisions. Section 517(h)(1) of SMCRA, 30 U.S.C. 1267(h)(1),
allows any person who may be adversely affected by an operation to
notify OSM in writing if that person has reason to believe a violation
exists at a surface mining site. A request under this section has
traditionally been considered a ``request for a Federal inspection''
and, by statute, contains appeal rights, i.e., ``procedures for
informal review,'' if the person is dissatisfied with OSM's response.
Id. at 1267(h)(2). In contrast, section 521(a)(1) of SMCRA, 30 U.S.C.
1271(a)(1)), states that OSM can consider information provided by ``any
person'' about a violation of ``any requirement'' of the Act or permit
condition. The 2024 Rule essentially adopted the statutory
[[Page 7839]]
standard of section 521(a)(1), but then later in Sec. 842.11(b)(2),
that rule stated that all citizen complaints would be considered
requests for a Federal inspection. This is improper because, pursuant
to section 517(h)(1), a request for a Federal inspection can only be
for a narrower scope of violations--those that may exist ``at a surface
mining site.'' By removing this definition, as well as the additional
language in existing Sec. Sec. 842.11(b)(2) and 842.12(a) that says
all citizen complaints will be treated as requests for Federal
inspections, the Federal regulations will more closely mirror the
statutory requirements and remove unnecessary regulations in the form
of definitions that confuse and conflate separate SMCRA requirements.
Comment: Several commenters expressed support for the removal of
the definition of ``ten-day notice'' from 30 CFR 842.5 because there
has never been any confusion over the use of the term and therefore a
definition is unnecessary.
Response: OSM agrees that, as stated in the preamble to the
proposed rule (see, e.g., 90 FR at 25175-25176), a definition for the
term ``ten-day notice'' is not necessary, only adds to the ``ever-
expanding morass of complicated Federal regulations'' (E.O. 14192
``Unleashing Prosperity Through Deregulation,'' Sec. 1), and should be
removed from the regulations. As with the definition of ``citizen
complaint,'' ``ten-day notice'' is not defined in SMCRA, and OSM
implemented SMCRA without such a definition for over 45 years. Thus,
OSM is removing this definition.
D. Information Used for ``Reason To Believe'' Determinations
In the 2025 proposed rule, OSM proposed to return to the 2020
Rule's language at Sec. 842.11(b)(1) describing the types of
information OSM can rely on when determining whether there is reason to
believe that there exists a violation of SMCRA, the State regulatory
program, or any condition of a permit or an exploration approval. 90 FR
at 25175. OSM is finalizing this change as proposed, which will allow
OSM's authorized representative to consider ``any information readily
available to him or her, from any source[,]'' which could include
information obtained from a State regulatory authority.
Comment: Several commenters supported OSM's decision to modify the
Federal regulations to ensure it can consider all ``readily available''
information regardless of the source of that information when
determining if it had a reason to believe a violation exists. These
commenters indicated that the 2024 Rule inappropriately narrowed the
scope of information that OSM could evaluate when making its
determination of whether there was reason to believe a violation exists
and prevented OSM from relying on non-publicly available information
that the State regulatory authority might have. Commenters in favor of
the proposed changes indicated that State regulatory authorities tend
to have a better understanding of their programs and permits issued
under those programs, making information from the States invaluable to
OSM in making a reason to believe determination.
Response: OSM agrees with these commenters that the 2024 Rule
unnecessarily narrowed the scope of information that OSM can evaluate
when making its determination of whether there is reason to believe a
violation exists. In the preamble to the 2024 Rule, OSM explained that
the intent of the change was to limit the sources of information that
OSM will consider in determining whether it has reason to believe a
possible violation exists to avoid excessive delays in making the
reason to believe determination. 89 FR at 24715. While OSM remains
committed to prompt evaluations of citizen complaints and
determinations of whether there is reason to believe a violation
exists, OSM's experience in implementing the 2024 Rule has demonstrated
that the limits on the types of information available to OSM as a
result of the 2024 Rule forced OSM to ignore some types of critical
information, such as readily available information from the State
regulatory authority, that were not publicly available when making a
reason to believe determination. The result is that, starting in May
2024, OSM issued TDNs in response to citizen complaints at times where
there would not have been reason to believe a violation exists if OSM
had been able to access the information barred by the 2024 Rule. On
average, under the 2020 Rule, OSM issued TDNs in response to a citizen
complaint less than 17 percent of the time. In comparison, as of
December 2025, OSM issued a TDN in response to a citizen complaint over
56 percent of the time under the 2024 Rule. However, as mentioned
above, the increased number of TDNs did not have any measurable impact
on Federal oversight. For instance, there was no difference in the
number of Federal enforcement actions under the two different rules,
and OSM determined that either there was no actual violation or the
State regulatory authority had taken appropriate action in the majority
of the TDNs resolved under the 2024 Rule. Therefore, the 2024 Rule did
not actually lead to improved oversight of State regulatory programs,
despite aiming for that outcome. Instead, as indicated by the numbers,
the 2024 Rule resulted in an increase in the number of citizen
complaints received and processed by OSM and the number of TDNs for OSM
and States to review and respond to, rather than in an improvement in
oversight of State regulatory programs.
The changes finalized today are a commonsense attempt to alleviate
this increased unnecessary burden and to make the regulatory text
better match the statutory direction that the Secretary, acting through
OSM, should make the reason to believe determination based on ``any
information available to him.'' Nowhere in section 521(a)(1) of SMCRA,
30 U.S.C. 1271(a)(1), is ``any information'' restricted to information
that is publicly available. OSM is not a member of the public and, by
virtue of its oversight role, is uniquely able to access ``information
available'' from multiple sources to make the best determination of
whether there is reason to believe a violation exists. Where the
available information makes it clear that there is no violation, OSM
and the State regulatory authority can avoid a useless paperwork
exercise and unwarranted issuance of a TDN.
OSM agrees that, in general, State regulatory authorities have
better site-specific information about the surface coal mining and
reclamation operations at issue in citizen complaints and that it is
most efficient and effective for OSM to obtain preliminary information
from the State regulatory authority before making a reason to believe
determination. The 2024 Rule arbitrarily forced OSM to ignore non-
public but readily available information, such as State databases, that
could allow OSM and the State regulatory authority to avoid the
administrative burdens associated with the issuance of an unsupported
TDN. The intent of this change is to reduce the number of unnecessary
TDNs resulting from citizen complaints that are easily resolved with
information readily available to OSM. This reduction will allow OSM and
the State regulatory authorities to focus on substantive enforcement
issues to ensure full compliance with SMCRA, the applicable State
regulatory program, or any condition of a permit or an exploratory
approval.
[[Page 7840]]
Comment: A commenter alleged that the proposed changes would limit
the role of citizens and OSM in oversight and enforcement of
violations, which the commenter alleged is contrary to the text and
best reading of section 521(a)(1) of SMCRA. 30 U.S.C. 1271(a)(1). This
commenter argued that section 521(a)(1) of SMCRA requires that, where
information given to the Secretary provides ``reason to believe'' that
any person is in violation of SMCRA, OSM must immediately notify the
State regulatory authority, starting the ten-day period, and that it
would be contrary to SMCRA to allow a new, non-statutory procedural
step where OSM contacts a State regulatory authority to consider the
State regulatory authority's action before determining if there is
reason to believe a violation exists. The commenter noted that creating
an additional informal information-gathering process with no
enforceable timeline or deadline before OSM makes a ``reason to
believe'' determination would be at odds with Congress' clear intent
that States have ten days to either correct the violation or provide
information about why no action is necessary.
Response: OSM disagrees with the premise of this comment, which is
very similar to comments received in response to the 2020 Rule, and OSM
directs the commenter to OSM's response in that rulemaking. 85 FR at
75156-62. As OSM explained when these changes were first introduced in
2020, and as OSM reiterates now as those changes are renewed, the
proposed rule would not limit the role of citizens or OSM in oversight
and enforcement of violations and is not contrary to the text and best
reading of section 521(a)(1) of SMCRA. 30 U.S.C. 1271(a)(1). Under the
2025 proposed rule and as finalized today, citizens retain an important
role in ensuring that all violations of any requirement of SMCRA or any
permit condition are identified and addressed as quickly and
efficiently as possible. None of the clarifications to parts 733 and
842 would impair, weaken, or eliminate the ability of the public to
report violations directly to OSM or for OSM to issue TDNs when
appropriate. OSM intends the changes adopted today to recalibrate the
citizen complaint process and the cooperative federalism relationship
between OSM and the State regulatory authorities after the 2024 Rule,
which prevented OSM from using certain types of readily available
information that would have allowed OSM to more easily and accurately
determine whether there is reason to believe a violation of SMCRA or a
permit condition existed before issuing a TDN. These changes will also
reduce unnecessary administrative burdens on both OSM and the State
regulatory authorities, consistent with this Administration's
priorities. E.g., E.O. 14154 ``Unleashing American Energy,'' E.O. 14192
``Unleashing Prosperity Through Deregulation,'' and E.O. 14261
``Reinvigorating America's Beautiful Clean Coal Industry and Amending
Executive Order 14241.''
Consistent with OSM's longstanding practice, this final rule
requires citizens to provide advance or simultaneous notice to State
regulatory authorities when submitting a request for a Federal
inspection to OSM. Except for the recent change to the Federal
regulations resulting from the 2024 Rule, OSM's practice since 1982 has
been to require advance or contemporaneous notice to the State
regulatory authority. 47 FR at 35620. This revision is not intended to
limit the role of a citizen in the enforcement of regulations,
standards, reclamation, plans, or programs established under SMCRA but
to recognize that most alleged violations can be expeditiously and
effectively resolved by the State regulatory authority, which is in the
best position to address any potential issues. As with the 2020 Rule,
this final rule provides that, when requesting a Federal inspection,
the citizen must indicate that they notified the State regulatory
authority before or at the time they notified OSM and the basis for
their assertion that the State regulatory authority has not taken
action with respect to the possible violation. See, e.g., 85 FR at
75157 (explaining how the 2020 Rule is fundamentally no different than
the rule in effect since 1982). This provision encourages, and does not
require, citizens to notify the appropriate State regulatory authority
before involving OSM in a primacy State's regulatory program and best
implements SMCRA's mandate that OSM cooperate with State regulatory
authorities to minimize duplication of inspections, enforcement, and
administration of SMCRA. 30 U.S.C. 1211(c)(12).
Furthermore, OSM does not agree with the commenter's assertion that
the proposed revision creates a new, non-statutory procedural step
before the statutory TDN process is started or that allowing OSM to
consider all information available before making a reason to believe
determination is contrary to section 521(a)(1) of SMCRA. 30 U.S.C.
1211(a)(1). This comment is similar to comments received in response to
the 2020 Rule, and OSM directs the commenter to the preamble to that
rulemaking for a more detailed response. 85 FR at 75162-75166.
Certainly, once OSM has reason to believe that a person is in violation
of any requirement of SMCRA or any permit condition, SMCRA requires OSM
to notify the State regulatory authority, if one exists, and begin the
TDN process. However, SMCRA does not contain a requirement that OSM
rush to determine whether there is reason to believe that a violation
exists based only on information from a citizen complaint as this
commenter suggests. Instead, SMCRA directs that the decision should be
based on ``any information available to'' OSM, ``including receipt of
information from any person.'' As noted in the preamble to the 2020
Rule, the clarifications finalized here will require that OSM consider
all ``readily available information,'' including any information that a
State regulatory authority provides, which promotes the goal of
ensuring that those regulators with primary jurisdiction over State
programs provide OSM with information essential to its assessment of
alleged violations.
Finally, the change to Sec. 842.12 requiring that a citizen
requesting a Federal inspection provide information about the alleged
violation ``at the surface mining site'' is not intended to limit
citizen engagement but to ensure that the citizen complaints are
actually related to a surface coal mining and reclamation operation.
Under the 2024 Rule, OSM received numerous citizen complaints that were
not related to any surface coal mining or reclamation operation but
were instead related to non-mine activities such as a blocked storm
drain on a public road, private property rights disputes, a landfill,
and a clay mine. Requiring that a request for an inspection specify
that the alleged violation is occurring at a surface mining site should
have no impact on citizens with concerns about actual mining operations
but should help limit the number of non-mining complaints that are sent
to OSM.
Comment: A commenter stated that the phrase ``reason to believe''
is not ambiguous and alleges that the preamble to the 2025 proposed
rule failed to provide a reasoned explanation for changing the
longstanding interpretation of ``reason to believe'' or identify any
examples of OSM, the Interior Board of Land Appeals (IBLA), State
regulatory authorities, or any State administrative body having
difficulty evaluating a citizen complaint to determine if there was
``reason to believe'' a violation exists. This commenter argued that
because agencies are no longer provided deference under
[[Page 7841]]
Chevron, USA v. NRDC, 467 U.S. 837 (1984), OSM does not have the
discretion to interpret ``reason to believe'' differently than the
plain meaning of the statute. This commenter pointed to the legislative
history, which they claim indicates that ``reason to believe'' is the
same as ``reasonable belief'' and ``could be established by a snapshot
of an operation in violation or other simple and effective
documentation of a violation.'' H.R. Rep. No. 95-218, at 129 (Apr. 22,
1977).
Similarly, the same commenter alleged that allowing an additional
fact-finding phase after an individual provides ``reason to believe'' a
violation exists but before notifying the State of the possible
violation and triggering the ten-day period for the State's response is
inconsistent with the plain language of SMCRA, which the commenter
alleged requires OSM to first notify the State of the alleged violation
and then provide the State with ten days to take appropriate action or
show good cause for not taking action. This commenter expressed concern
that the proposed changes to allow additional fact-finding before
issuing a TDN could allow indefinite administrative delay that is
inconsistent with SMCRA, the legislative history of the Act, and OSM's
historic interpretation of this provision.
Response: OSM strongly disagrees with this commenter's assertions.
As discussed throughout the preamble to the 2020 Rule and reiterated
here, due to the complex nature of SMCRA and coal mining in general,
ambiguity has arisen about how OSM should perform some of its oversight
functions, including how OSM should interpret the ``reason to believe''
standard contained in section 521(a)(1) of SMCRA. See, e.g., 85 FR at
75155. Although the commenter alleged that OSM did not identify any
examples where there was difficulty evaluating a citizen complaint to
determine if there was ``reason to believe'' a violation exists, this
commenter ignored the numerous examples of such situations provided by
OSM of the varying interpretations of how to administer section
521(a)(1) of SMCRA and the implementing regulations at 30 CFR part 842.
For example, in the preamble to the 2020 Rule, OSM provided as evidence
of this confusion the fact that OSM had revised its primary Directive
on the TDN process, INE-35, eight times in 33 years attempting to find
the right balance between citizen engagement, agency expertise, and
cooperative federalism.
Moreover, as described in more detail in section I of this
preamble, since OSM provided those examples in the 2020 Rule, the 2020
Rule was judicially challenged, then replaced by the 2024 Rule before
there was any ruling on the merits of the case, and then the 2024 Rule
was challenged, and there has not been any ruling on the merits in that
case either. In these lawsuits, opponents of the 2020 Rule and
opponents of the 2024 Rule vigorously argued for opposite outcomes and
maintained differing interpretations of section 521(a)(1) of SMCRA.
However, we assert that the 2020 Rule, along with the changes offered
in this final rule, reflect the best reading of the statute. Instead of
retreating to the pre-2020 Rule language, which needed clarification,
or retaining the 2024 Rule's approach, OSM approached this rulemaking
with the goal of removing ambiguity and formulating a regulatory
program that, as a whole, represents the best reading of SMCRA.
After reviewing SMCRA, the legislative history of the Act, OSM's
prior regulations and guidance documents, the rulemaking records for
the 2020 Rule and the 2024 Rule, all of the comments and submissions in
response to this proposed rule, and recent case law (e.g., Loper Bright
Enterprises v. Raimondo, 603 U.S. 369 (2024)), OSM is finalizing a rule
today, which is substantially similar to the 2020 Rule, because, in
OSM's opinion, it reflects the best reading of SMCRA. As the commenter
noted, early legislative history from the House of Representatives
notes that ``it is anticipated that `reasonable belief' could be
established by a snapshot of an operation in violation or other simple
and effective documentation of a violation.'' H.R. Rep. No. 95-218, at
129 (1977). However, Congress did not envision OSM as a mere pass-
through entity between citizen complainants and State regulatory
authorities. Instead, Congress equipped OSM with the statutory
authority, staff, expertise, and resources to deploy limited, but
strategic, Federal oversight to ensure that States adequately enforce
SMCRA. S. Rep. No. 95-128, at 90 (May 10, 1977). Congress also directed
the Secretary, acting through OSM, to ``cooperate with other Federal
agencies and State regulatory authorities to minimize duplication of
inspections, enforcement, and administration of this Act.'' 30 U.S.C.
1211(c)(12). Limiting OSM's role in determining ``reason to believe''
to simply determining which State regulatory authority to send a TDN to
without evaluating the content of a citizen complaint along with any
information readily available, including information from a State
regulatory authority, would conflict with the mandate in section
201(c)(12) of SMCRA, 30 U.S.C. 1211(c)(12), because it would lead to
increased instances of duplicate inspections, enforcement, and
administrative burdens with no clear benefit.
The commenter is also incorrect that agencies receive no deference
under the new Loper Bright standard set by the Supreme Court. While the
Supreme Court held that issues of statutory interpretation are for
courts to decide under section 706 of the Administrative Procedure Act
and, accordingly, agency interpretations are no longer entitled to
deference under Chevron, agency rules are once again reviewed under the
previous framework set forth in Skidmore v. Swift & Co., 323 U.S. 134
(1944), which focuses on whether the agency's rule is the ``best
reading of the statute.'' OSM's history of implementing SMCRA,
including its experience implementing the 2020 Rule and 2024 Rule,
provided the agency with recent, on-the-ground experience with the
competing approaches to determining ``reason to believe.'' OSM has
determined that the ability to have access to any information readily
available is invaluable to avoid wasting OSM and State resources
pursuing citizen complaints that, on their face, seem to provide
``reason to believe'' that a violation exist but that, after minimal
investigation, are found to be meritless. OSM understands that, to the
commenter, meritless citizen complaints could be weeded out after a TDN
is issued, however, that approach is inefficient and burdens the State
to respond to a meritless TDN. Under the 2020 Rule and the rule that
OSM is finalizing today, OSM can use readily available information to
help understand the citizen complaint before triggering a burden on the
State. This approach, therefore, is most efficient and best implements
SMCRA as a whole to avoid duplicative enforcement and administrative
burdens on OSM and the State regulatory authorities.
Comment: A commenter noted that information not in OSM's possession
at the time it receives a citizen complaint, or an oversight inspection
is not ``information available'' to the Secretary and should not be
considered before making a ``reason to believe'' determination.
According to the commenter, for this reason, any information submitted
from a State regulatory authority or other party after OSM receives a
citizen complaint should not be considered in determining whether OSM
has a reason to believe a violation exists.
[[Page 7842]]
Response: Section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a)(1), directs
that ``[w]henever, on the basis of any information available to him,
including receipt of information from any person, the Secretary has
reason to believe that any person is in violation of any requirement of
this Act or any permit condition required by this Act, the Secretary
shall notify the State regulatory authority, if one exists, in the
State in which such violation exists.'' Contrary to the assertions of
the commenter, SMCRA does not limit OSM to only considering the
information from any person, such as a citizen complaint, or freeze
OSM's analysis of information available to the moment the citizen
complaint is submitted. Instead, SMCRA plainly directs the Secretary,
through OSM, to determine whether there is reason to believe that any
person is in violation of SMCRA or a permit condition ``on the basis of
any information available to him,'' which would include, but is not
limited to, information obtained from a citizen and any other
information available to OSM before making the ``reason to believe''
determination.
Comment: A commenter stated that SMCRA does not allow OSM to create
or revive a procedural barrier in 30 CFR 842.12(a) to start the TDN
process found in section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a)(1), by
requiring that the complainant assert and demonstrate that the State
regulatory authority has first been notified of the potential violation
and has failed to take appropriate action.
Response: As fully explained in OSM's response to comments in the
preamble to the 2020 Rule, and reiterated here, the rule OSM is
finalizing today does not create, or revive, a procedural barrier to a
citizen submitting a citizen complaint to OSM or requesting a Federal
inspection. The final rule will require a citizen to provide the basis
for the person's assertion that the State regulatory authority has not
taken action with respect to the possible violation in the context of a
request for a Federal inspection under Sec. 842.12, as with the 2020
Rule. However, OSM is not suggesting that the citizen must provide
definitive, hard-to-obtain proof that the State regulatory authority
has not acted on the possible violation. Instead, the requirement in
Sec. 842.12 merely directs the citizen to provide any information they
may have about the State regulatory authority's action or inaction. See
85 FR at 75160. Of course, the more detailed a citizen complaint is
about a possible violation, the more information OSM will have to
consider when determining whether there is a reason to believe. OSM
certainly recognizes that citizens have limited access to mine sites,
and the final rule does not require any more information than a citizen
has available.
Furthermore, this commenter misstates the final rule. The final
rule does not require that a citizen demonstrate that the State
regulatory authority has first been notified of the potential violation
and has failed to take appropriate action. Instead, the final rule
reverts to the 2020 Rule language, which, as OSM explained at the time,
requires a citizen requesting a Federal inspection to notify the State
regulatory authority before, or simultaneously with, reporting
violations to OSM. 85 FR at 75157. This provision was part of the
Federal regulations from 1982 until the 2024 Rule changed it in the
spring of 2024 and reflects OSM's long-held understanding that a State
regulatory authority will resolve most alleged violations without
intrusion by OSM, as long as the State regulatory authority is made
aware of the citizen's concern.
Comment: A commenter asserted that the proposal to modify Sec.
842.11(b)(1)(i) to require that OSM consider information ``readily''
available to the Secretary is inconsistent with SMCRA and OSM's prior
practice. The commenter also claimed that OSM's justification for this
reversion to the 2020 Rule lacks support. The commenter noted that OSM
rejected comments favoring stricter application of the ``reason to
believe'' standard in earlier rulemakings as contrary to Congressional
intent in section 521(a) of SMCRA, 30 U.S.C. 1271(a), which the
commenter alleges imposes a mandatory duty to conduct an inspection
when OSM has ``reason to believe'' a violation exists. The commenter
asserted that it is not necessary for OSM to have some degree of
certainty that the violation exists before issuing a TDN because any
Federal inspection that followed the State's response would be when OSM
would determine whether a violation actually exists. For support, the
commenter points to several administrative and judicial decisions
supporting OSM's pre-2020 Rule standard that a TDN would be issued if
the possible violation in the citizen complaint, if true, would
constitute a SMCRA violation. See, e.g., W. Va. Highlands Conservancy
(WVHC I), 152 IBLA 158, at 186-87 (2000); Jessica Bier, 193 IBLA 109,
112 n.8 (2018).
Response: As discussed in greater detail above, considering
information readily available to OSM is consistent with SMCRA and
represents the best reading of the statute as a whole. OSM also
disagrees with the commenter's characterization of the changes in this
rulemaking as being a stricter application of ``reason to believe.''
With the changes approved here, OSM is not changing its ``reason to
believe'' standard, increasing the standard, or placing any additional
obligations on citizens for what they must provide in a citizen
complaint. Instead, OSM is merely clarifying that a responsible
official can use all readily available information to ensure that they
have a full and complete picture of the matter before making its
determination of whether there is ``reason to believe'' a violation
exists. Further, the final rule does not require a higher level of
certainty about whether a violation exists before OSM will issue a TDN.
However, where there is readily available information related to a
citizen complaint, OSM can use that information to make a better and
more informed decision. The following hypothetical example illustrates
how the changes do not modify the ``reason to believe'' standard but
instead prevents the unnecessary issuance of TDNs by allowing OSM to
use available information. For example, if a citizen alleges that a
mine site was missing the appropriate signage on January 1, that
information alone would arguably be sufficient to support a reason to
believe that a violation exists. However, if OSM also had an inspection
report that stated a State inspector noted the signage violation during
a routine inspection on January 2 and the mine was able to fix the
signage issue during the inspection, that would provide OSM with
information indicating that there was not reason to believe the
violation currently existed and avoid the administrative burden that
the TDN process places on OSM and the State regulatory authority. Mine
inspection reports are not typically publicly available immediately
after an inspection but are readily available to OSM as the agency
responsible for oversight of these State programs. Allowing OSM to use
this type of information, where it is readily available, does not
change the ``reason to believe'' standard and is a common sense
approach to implementing the direction in section 201(c)(12) of SMCRA,
30 U.S.C. 1211(c)(12), that OSM should cooperate with State regulatory
authorities to minimize duplication of inspections, enforcement, and
administration of SMCRA.
With regard to the cases cited by the commenter purporting to
mandate the use of an ``if true'' standard for determining reason to
believe, OSM
[[Page 7843]]
disagrees that these cases require OSM to reach the conclusion that the
citizen complaint alone is sufficient information to consider whether
there is reason to believe a violation exists under section 521(a)(1)
of SMCRA. 30 U.S.C. 1271(a)(1). These decisions do not address the
reasonableness of the post-2020 regulations or OSM's interpretation of
SMCRA. Instead, the decisions cited by the commenters are applying the
pre-2020 regulations, which grafted the ``if true'' standard onto the
statutory standard. OSM's rulemaking today does not retroactively
vacate or change the outcome of these cases, which were decided under
earlier regulations. Moreover, these decisions did not reflect whether
those pre-2020 regulations were the best reading of SMCRA as a whole or
whether they would, as the 2020 Rule did, remove ambiguity and give
effect to OSM's professional judgment by allowing it to consider any
readily available information. See 85 FR at 75155-56, 75164-65.
Notably, even the 2024 Rule retained the elimination of the ``if true''
standard. See 89 FR at 24724.
Comment: A commenter noted that OSM's 2025 proposed rule, which
allows OSM to consider information from a State regulatory authority
before determining if there is reason to believe a violation exists, is
contrary to OSM's past positions and inconsistent with the regulations
because information from a State regulatory authority would be
considered by OSM when it looked at the State's TDN response to
determine if the State had taken ``appropriate action'' or had ``good
cause'' for not doing so. The commenter alleged that OSM's statement
that this change is justified because it reduces the potential for
duplicate inspections and conserves resources in the event that a State
has already begun investigation or correcting an alleged violation is
without merit because the regulations already prevent duplicate
inspections by giving a State regulatory authority ten days to respond
with this type of information after receiving a TDN.
Response: OSM disagrees with the commenter's characterization of
this rule. This final rule is neither contrary to OSM's past practices
nor inconsistent with the Federal regulations. As revised today, the
regulations do not change the nondiscretionary statutory and regulatory
requirement that a State regulatory authority must respond to a TDN
with good cause for inaction or by taking appropriate action within ten
days. 30 CFR 842.11(b)(1)(ii)(B)(1). OSM is, however, reverting to the
approach in the 2020 Rule to ensure a more uniform and efficient
process when OSM receives a citizen complaint. The revised regulation
clarifies the information OSM's authorized representatives should
consider when they receive a citizen complaint, which eliminates the
possibility that different OSM offices will apply different standards
when determining whether to issue a TDN. This revised process also
ensures that OSM's authorized representatives can apply their
independent, professional judgment to determine whether they have
reason to believe a possible violation exists based on all readily
available information before them, regardless of the source of that
information. Once OSM's authorized representative determines that he or
she has a ``reason to believe'' a violation exists, he or she must
issue a TDN to the State regulatory authority and the State regulatory
authority must respond within ten days. See 30 CFR 843.12(a)(2).
Therefore, OSM's oversight of alleged violations is not materially
altered.
E. ``Person[s]'' Subject to a TDN
As explained in the preamble to the proposed rule at 90 FR at
25176, based on the Supreme Court's ruling in Loper Bright that the
regulations should reflect the best reading of the statute, OSM now
disagrees with the direction it took in the preamble to the 2024 Rule
that announced OSM's intention to treat a State regulatory authority as
a ``person,'' who could be in violation of the Act under section
521(a)(1) of SMCRA. 30 U.S.C. 1271(a)(1).
Comment: Some commenters opposed OSM's proposal to return to its
prior understanding that a State regulatory authority cannot be found
in violation of SMCRA and its implementing regulations for purposes of
a TDN, unless the State regulatory authority is acting as a permit
holder. These comments claim that OSM did not provide adequate support
for this change and opined that site-specific violations should be
addressed through the TDN process and programmatic violations should be
addressed through the 30 CFR part 733 process.
Response: OSM thoroughly explained its rationale for generally not
including a State regulatory authority as a ``person'' for purposes of
issuance of a TDN in the preamble to the 2020 Rule. See, e.g., 85 FR at
75176 and 75179. Instead of using the TDN process, OSM will handle any
programmatic issues caused by State regulatory authorities as State
regulatory program issues under 30 CFR 733.12. Id. As stated in the
preamble to the 2020 Rule, ``[o]f course, under finalized 30 CFR
733.12(d), if the State regulatory program issue manifests itself as a
violation of the approved State program that often results in an on-
the-ground impact, OSM can still take direct enforcement action.'' Id.
at 75177.
Comment: In contrast to the previous comment, several commenters
supported OSM's proposal to return to OSM's prior position that a State
regulatory authority is not a ``person'' that can commit a violation
under section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a)(1), unless the
State regulatory authority is acting as a permit holder. The commenters
asserted that the preamble to the 2024 Rule was inconsistent with
SMCRA. In support of their position, they noted that the SMCRA
definition of ``person'' at section 701(19) of SMCRA, 30 U.S.C.
1291(19), does not include ``State,'' ``State program,'' or ``State
regulatory authority'' among the entities that can be a ``person.''
Response: OSM agrees with the commenter that the best reading of
SMCRA as a whole is that a State regulatory authority should not be
considered ``any person'' who may be ``in violation of any requirement
of this Act'' under section 521(a) of SMCRA unless the State is a
permit holder. 30 U.S.C. 1271(a). As OSM noted in the preamble to the
proposed rule (90 FR 25176), SMCRA's definition of ``person'' further
indicates that the interpretation outlined in the 2020 Rule and
reiterated in this final rule is the most consistent with SMCRA.
Comment: A commenter stated that OSM's proposal to clarify that
``any person'' does not include State regulatory authorities is
unjustified and contrary to SMCRA. The commenter asserts that
Congress's use of ``any'' as a modifier to ``person'' and
``requirement'' in section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a)(1),
indicates a statutory intent to broaden the scope of entities that may
receive a TDN beyond the business entities identified in section
701(19) of SMCRA. 30 U.S.C. 1291(19). The commenter also notes that
because the citizen suit provision in section 520 of SMCRA, 30 U.S.C.
1270, applies to actions ``against the United States or any other
governmental instrumentality or agency to the extent permitted by the
Eleventh Amendment to the Constitution'' it is apparent that Congress
intended to include State regulatory authorities in the group of actors
capable of violating SMCRA under section 521(a)(1) 30 U.S.C.
1271(a)(1). Finally, the commenter notes that OSM's own regulations at
30 CFR 700.5 define ``person'' as including ``any agency, unit, or
instrumentality of Federal, State or local government.'' The
[[Page 7844]]
commenter notes that this regulation is binding on OSM and requires
that State regulatory authorities be brought within the scope of
section 521(a) and that OSM's proposed interpretation would be
inconsistent with OSM's own regulations.
Response: OSM disagrees with the commenter's interpretation of
SMCRA and the Federal regulations. Although it is true that the
regulatory definition of ``person'' at 30 CFR 700.5 includes State
agencies, its inclusion of Federal and local government agencies
indicates that it is not specifically geared toward State regulatory
authorities in the context discussed in this rule (i.e., the agency
issuing the surface mining permit). Indeed, in the preamble to the
proposed rule that introduced this term, OSM noted that, while the
definition expanded on the definition in section 701(19) of SMCRA, 30
U.S.C. 1291(19), it did so to ensure that ``governmental agencies
listed in section 524 of SMCRA, 30 U.S.C. 1274, would be included
because they are subject to regulation when engaged in surface coal
mining and reclamation operations.'' 43 FR 41662, 41666 (Sept. 18,
1978). Likewise, the citizen suit provision at section 520 of SMCRA, 30
U.S.C. 1270(a)(1), cited by the commenter, is also geared toward
citizen suits against operators of surface coal mining and reclamation
operations. Because section 524 authorizes Federal, State, and local
governments to operate surface coal mining and reclamation operations,
it only makes sense that the citizen suit provision at section
520(a)(1) would apply to those entities when acting in that specific
capacity. This rule does not change that. As OSM noted in the preamble
to the 2025 proposed rule, OSM could still issue a TDN to a State
agency if the State were acting as an operator of a surface coal mining
and reclamation operation or a permit holder. See 90 FR at 25176
(``Properly understood, a State regulatory authority can only be a
`person' that could `be in violation of any requirement of the Act' in
order to trigger a TDN if the State is acting as a business
organization of some type, such as a permit holder operating a surface
coal mining operation.''). To the extent that OSM determines that the
definition of ``person'' in Sec. 700.5 is causing any confusion, OSM
will consider subsequent clarifications as part of its deregulation
effort.
F. Types of Possible Violations
As discussed in more detail in the preamble to the 2025 proposed
rule, 90 FR at 25176, the best reading of section 521(a)(1), 30 U.S.C.
1271(a)(1), and SMCRA as a whole is that the TDN process is not an
acceptable way to review the action of a State regulatory authority.
Instead, programmatic issues should be addressed under section 521(b)
of SMCRA. 30 U.S.C. 1271(b).
Comment: One commenter opined that the 2020 Rule, and thus the
proposed rule, correctly excluded matters that are programmatic in
nature from the TDN process. The commenter supported OSM's rationale
for the 2020 Rule, agreeing that site specific alleged violations
should be addressed through the TDN process as governed by section
521(a) of SMCRA, 30 U.S.C. 1271(a), and 30 CFR part 842, but that State
regulatory program issues should be corrected through a separate
process under section 521(b) of SMCRA, 30 U.S.C. 1271(b), and 30 CFR
part 733. This commenter alleged that the 2024 Rule, by allowing OSM to
issue notices of violations (NOVs) for State regulatory program issues
that are not permit violations, effectively made remedies for State
regulatory program issues useless. The commenter further alleged that
the part 733 procedures for implementing sections 504(b) of SMCRA, 30
U.S.C.1254, and 521(b) of SMCRA are the only allowable pathways for
addressing a situation where a State regulatory authority is failing to
maintain and implement its regulatory program effectively.
Response: OSM appreciates the support of this commenter and
generally agrees with its analysis. OSM will note, however, that even
under the 2024 Rule, OSM still used the part 733 procedures for State
regulatory program issues; however, the 2020 Rule better and more
clearly distinguished between the two processes under section 521 of
SMCRA. 30 U.S.C. 1271. Thus, OSM is reverting, in large part, to that
rule.
Comment: Several commenters supported reverting to the 2020 Rule's
approach of distinguishing State regulatory program issues, which would
be addressed through 30 CFR part 733, from on-the-ground violations,
which would be addressed through 30 CFR part 842. Commenters alleged
that a ``violation'' under section 521(a) of SMCRA, 30 U.S.C. 1271(a),
is limited to actions or omissions by a permittee at a permitted
operation and is not broad enough to relate to a State regulatory
program issue. These commenters recommended removing permitting matters
and programmatic disputes from the TDN process and revising 30 CFR part
842 to define ``violation'' as ``an on-the-ground nonconformance'' or
``an activity condition or practice at a surface coal mining and
reclamation operation which does not conform to the permit or
applicable regulatory program.'' These commenters also stated that
citizen complaints requesting Federal inspections should not be allowed
for indirect challenges to State permits or programs.
Response: While OSM generally agrees with these commenters, OSM has
declined to adopt their suggestion to expand the list of definitions.
As discussed above, OSM drafted this rule with an eye toward reducing
Federal regulations. The 2020 Rule, which this final rule largely
adopts, sufficiently draws the distinctions advocated by the commenters
without additional changes to the regulations.
Comment: Another commenter proposed additional changes to
Sec. Sec. 733.5 and 842.11 to fully exclude programmatic and
permitting issues from the definition of ``State regulatory program
issue'' in Sec. 733.5 and preclude the issuance of TDNs or Federal
inspections for programmatic or permitting issues.
Response: After reviewing the proposed additional changes suggested
by the commenter, OSM has declined to adopt them. The 2020 Rule was in
effect for over three years, and, in OSM's experience, it struck the
correct balance between State primacy and Federal oversight for both
on-the-ground or imminent violations and programmatic violations. In
addition, OSM's staff found the 2020 Rule to be easy to implement. The
changes suggested by the commenter could cause confusion and remove
discretion.
Comment: One commenter stated that Congress intended OSM to use
TDNs to address site-specific violations by State regulatory
authorities when it enacted SMCRA and, as support, cited to SMCRA's
legislative history. See S. Rep. No. 95-128 (``Federal standards are to
be enforced by the Secretary on a mine-by-mine basis for all or part of
the State as necessary without finding that the State regulatory
program should be superseded by a Federal permit and enforcement
program.''). The commenter opined that the legislative history shows
that Congress intended the only limitation on TDNs to be that the
alleged violation must be specific to a particular mine and that OSM's
proposed interpretation that the permittee must be in violation of the
permit to warrant a TDN is unsupported. Further, the commentor alleged
that the legislative history indicates that while the 30 CFR part 733
process is an appropriate method for addressing programmatic issues,
OSM has the authority to address mine-specific violations that a State
regulatory program issue may cause
[[Page 7845]]
without a specific finding that the State regulatory authority is not
implementing, administering, or enforcing its State program properly.
Response: OSM considered SMCRA's legislative history when it
promulgated the 2020 Rule, including the legislative report cited by
the commenter. See, e.g., 85 FR at 75155. In the preamble to that rule,
OSM noted that over the years, OSM struggled with many issues related
to 30 CFR part 842, including ``how to address various types of
violations.'' Id. The 2020 Rule represented one interpretation of those
regulations, and the 2024 Rule represented another interpretation.
After having recent experience implementing both interpretations, OSM
is returning to the interpretation in the 2020 Rule because it is more
closely aligned with the statutory text of SMCRA as a whole and because
it gives full effect to section 521(a) of SMCRA, 30 U.S.C. 1271(a), for
mine-specific violations and section 521(b) of SMCRA, 30 U.S.C.
1271(b), for programmatic issues with a State regulatory authority's
implementation of its State program. This rule is in accordance with
SMCRA, as well as the regulatory provision that the commenters
highlighted.
Comment: One commenter pointed to numerous IBLA decisions in
support of the position that OSM has a duty under SMCRA to address
potential violations by State regulatory authorities, including so
called ``permit defects,'' through the TDN process and that ignoring
on-the-ground violations to pursue a programmatic action under part 733
is inappropriate. The commenter specifically cited Mullinax, 96 IBLA 52
(Feb. 27, 1987), W.E. Carter, 116 IBLA 262 (Oct. 18, 1990), Kuhn, 120
IBLA 1 (July 3, 1991), and Molinary, 134 IBLA 244 (Nov. 30, 1995) in
support of this position. The commenter alleges that, contrary to what
OSM said in the preamble to the proposed rule, the distinction should
not be whether an operator or a State regulatory authority caused the
alleged SMCRA violation but whether the violation is permit-specific.
Where the violation is permit-specific, regardless of whether it is
caused by an operator or the State regulatory authority, the commenter
argued that OSM must issue a TDN, and that only where the violation is
more general or programmatic is a part 733 procedure alone appropriate.
West Virginia Highlands Conservancy, et al., 152 IBLA 158 (Apr. 25,
2000) and West Virginia Highlands Conservancy, 166 IBLA 39 (June 9,
2005).
Response: OSM addressed a similar comment in the preamble to the
2020 Rule, and OSM will not repeat that discussion in detail here
because the rationale is the same. See, e.g., 85 FR at 75162.
Fundamentally, the IBLA cases cited by the commenter are not
interpreting SMCRA itself; instead, they are interpreting the pre-2020
Federal regulations, which were ambiguous and led the IBLA to conclude
that every citizen complaint should automatically result in a TDN. As
stated in the preamble to the 2020 Rule and reiterated in this final
rule, this regulatory change is meant to clarify when OSM uses each of
the enforcement tools in its toolbelt. Notably, the commenter did not
cite to even one example of OSM inappropriately forgoing the part 842
process in favor of the part 733 process during the more than three
years the 2020 Rule was in effect.
Comment: A commenter alleged that the proposed rule is a departure
from OSM's long-held official policy that TDNs should be used to
address violations by a State regulatory authority, including for
permit defects. The commenter noted that a prior OSM guidance document,
known as a directive, specified that OSM should issue TDNs for permit
``omissions or defects'' identified as a result of individual field
inspections. Further, the commenter stated a prior version of Directive
INE-35, which OSM issued in 1990 and rescinded in 2006, imposed a
mandatory duty on OSM to address violations by State regulatory
authorities. Finally, the commenter pointed to a subsequent version of
Directive INE-35, which OSM issued in 2011 and rescinded in 2019, to
support its contention that OSM's longstanding position has been that
the issuance of a TDN is mandatory to address a violation, even a
violation that resulted from a permit defect caused by a State
regulatory authority.
Response: While OSM does not dispute the references cited by the
commenter, the reality, as presented in the 2020 Rule, is far more
complex, and the history of OSM's treatment of permit defects shows an
agency going back and forth on this issue. See also 85 FR at 75176
(preamble to the 2020 Rule noting OSM's varying positions over the
years). After a brief experiment with a different policy reflected in
the 2024 Rule, OSM has again decided that the 2020 Rule reflects the
best reading of SMCRA as a whole and is an appropriate exercise of
OSM's oversight. See also id. It ensures that primacy States have
exclusive regulatory jurisdiction over permitting while preserving
OSM's oversight and limited backup enforcement authority. It ensures
that OSM can correct any programmatic issues through the part 733
process and site-specific issues through the part 842 process. For
these reasons, and those set forth in the preamble to the 2020 Rule,
OSM is returning to that balanced approach.
Comment: A commenter asserted that it would be inappropriate to
exclude violations by a State regulatory authority from the TDN
process. The commenter noted that there are a large number of mine-
specific violations by a State regulatory authority that would still
require OSM oversight, such as the issuance of a defective mining or
reclamation plan, extension or renewal of an automatically terminated
permit, failure to ensure adequate reclamation bonding, or
inappropriate denial of a lands unsuitable petition because these
issues have the potential to cause a site-specific, on-the-ground
violation of SMCRA. The commenter expressed concern that because an
operator would be acting in accordance with a validly issued permit or
the nature of the violation may not be apparent until after the close
of the public comment period or even when mining begins, it is
imperative that OSM retain the ability to issue a TDN directly to a
State regulatory authority.
Response: As OSM noted in the preamble to the 2020 Rule: ``Congress
intended the section 521(a) TDN process to be limited to violations at
a specific site.'' Id. At that time, OSM also noted that OSM
``retain[s] the ability to take Federal enforcement action if any issue
being addressed as a State regulatory program issue . . . results in,
or may imminently result in, on-the-ground violation.'' Id. This
ability, in combination with other Federal regulations, allows OSM to
appropriately address the hypotheticals that the commenter raised.
Comment: One commenter contended that OSM's only prior departure
from its longstanding policy that TDNs should be used to address
violations by State regulatory authorities was a 2005 letter from the
Acting Secretary for Land and Minerals Management (the ``Mettiki
letter'') and that the Mettiki letter is deeply flawed. The commenter
alleged that the Mettiki letter is not based on the plain language of
section 521 of SMCRA, 30 U.S.C. 1271, but is instead premised on an
unsupported interpretation of SMCRA where OSM lacks jurisdiction over
State permitting decisions. Under this interpretation, argued the
commenter, the only remedy available to OSM for a mine operating in a
manner that has resulted or would result in a mine-specific, on-the-
ground violation would be to address the issue programmatically, at the
risk of allowing the on-the-ground violation to persist
[[Page 7846]]
unabated. The commenter stated that allowing an on-the-ground violation
to remain unabated would be contrary to the purpose of SMCRA and its
legislative history, which indicate that all permit-specific violations
should be addressed, regardless of the source. S. Rept. No. 128, 95th
Cong. 1st Sess. 88 (1977). Finally, to highlight the flaws in the
Mettiki letter and the proposed rule, the commenter pointed to a case
in Oklahoma where the State regulatory authority attempted to prevent
OSM from correcting an on-the-ground violation of SMCRA's reclamation
standards by claiming that the violation was a permit defect that could
only be corrected through programmatic action and not a TDN.
Response: OSM disagrees with the commenter. As noted above, the
Letter from Assistant Secretary Rebecca Watson to Joseph M. Lovett,
Appalachian Center for the Economy and the Environment (Oct. 21, 2005)
(``Watson letter'' or ``Mettiki letter''), is not the only time OSM has
espoused this interpretation. For instance, the current Directive INE-
35, which has been effective since 2019, does not state that TDNs can
be issued for permit defects. Moreover, the 2020 Rule, which this final
rule largely adopts, also clarified the distinction between
programmatic issues and site-specific violations. In addition, OSM does
not agree that this rule is contrary to the legislative history.
Instead, it seeks to restore the statutory division that Congress put
in place in 1977. In addition, OSM is familiar with Oklahoma's previous
arguments related to approximate original contour and whether it was a
permit defect that could be corrected through a TDN. In response, OSM
notes that this occurred before the promulgation of the 2020 Rule,
which would have clarified how programmatic issues are addressed versus
how site-specific violations are addressed. Specifically, as stated in
the preamble to the 2020 Rule, nothing in that rule ``prevents a State
regulatory authority from taking direct enforcement action in
accordance with its State regulatory program, or OSMRE from taking
appropriate oversight enforcement action, in the event that a
previously identified State regulatory program issue results in or may
imminently result in a violation of the approved State program.'' 85 FR
at 75171. Therefore, it is unclear if or how these arguments would have
changed in light of the clarity provided by the 2020 Rule. Regardless
of these arguments from the commenters, OSM maintains that the 2020
Rule reflects the best reading of SMCRA as a whole, particularly the
distinction between section 521(a) of SMCRA and 521(b) of SMCRA. 30
U.S.C. 1271(a) and (b).
Comment: One commenter warned that requiring all violations by
State regulatory authorities to be addressed through the part 733
process, as opposed to the TDN process, would result in absurd outcomes
that could delay or even prohibit OSM from correcting on-the-ground
violations. The commenter noted that the part 733 process contains
numerous steps, some with long deadlines and others with no timeframes
attached, that would not facilitate the quick corrective action needed
to address a mine-specific violation that has historically been
addressed through the TDN process. The commenter also indicated that,
in 2005, OSM reported that it had only started ten part 733
proceedings, indicating that there has historically been a very high
threshold for State program issues that trigger a part 733 process. The
commenter expressed worry that if a permit defect cannot be addressed
through a TDN but is not substantial enough to warrant a part 733
proceeding, that the violation may not ever be addressed, or any
resolution would occur well after the on-the-ground violation has
caused irreparable harm.
Response: OSM disagrees with this commenter's assessment of the
proposed rule. The example cited by the commenter predates the changes
that the 2020 Rule made to 30 CFR part 733, which were largely
unaffected by the 2024 Rule. Before the 2020 Rule, the part 733 process
meant sending a letter to a State regulatory authority to begin the
process for substituting Federal enforcement or withdrawing approval of
all or a part of a State program. The 2020 Rule changed that to include
what is now 30 CFR 733.12, which is a codification of the corrective
action plan process that had previously been contained in agency
guidance documents. The action plan process, as revised in this rule,
will ensure that the part 733 process works swiftly to address State
regulatory program issues. Indeed, OSM used this process three times in
the approximately three years that the 2020 Rule was in effect. OSM's
experience was that the action plan worked to resolve the State
regulatory program issues identified. In the one instance where OSM's
review of the State's compliance with the action plan indicated
continuing issues, OSM invoked the procedures in 30 CFR 733.13, and the
State swiftly resolved the matter. Thus, OSM's practical experience in
implementing the 2020 Rule demonstrates that the scenario presented by
the commenter is unlikely to occur.
G. Similar Possible Violations
In the preamble to the proposed rule, OSM specifically requested
comments about whether it should retain the changes to Sec.
842.11(b)(1)(ii)(B)(1) made by the 2024 Rule, which addressed similar
possible violations. 90 FR at 25177. Retaining this language would
allow OSM to reduce the paperwork burden on a State regulatory
authority by specifically allowing OSM to issue one TDN for multiple
similar violations, even if those violations are on different permits.
Comment: Most commenters either supported retention of this
provision or indicated they were neutral on its retention because, in
their view, OSM had the authority to issue one TDN for similar possible
violations even without specific language in the regulations.
Response: While OSM has endeavored to remove unnecessary wording
from the regulations as part of OSM's deregulation effort, OSM opts to
retain this sentence from the 2024 Rule. As OSM noted then, it intended
the change to reduce regulatory burdens on the State regulatory
authorities. See 89 FR at 24718. The actual reduction of regulatory
burdens outweighs streamlining OSM's regulations; thus, OSM has
retained it.
H. Action Plans as Appropriate Action
As discussed in the preamble to the proposed rule, if OSM issues a
TDN, a State regulatory authority has ten days to respond. OSM will
then determine if that response constitutes ``appropriate action'' to
cause the violation to be corrected or if the State regulatory
authority has shown ``good cause'' for not doing so. 90 FR at 25177.
Under the 2020 Rule, the regulations provided that if a State
regulatory authority had entered into an action plan to correct a State
regulatory program issue, that would be considered ``appropriate
action.'' The 2024 Rule retained that concept but considered an action
plan to be ``good cause'' rather than ``appropriate action.'' This rule
adopts the proposal to return a corrective action plan to ``appropriate
action.'' Notably, however, regardless of whether an action plan is
considered good cause or appropriate action, no further Federal
enforcement would result from the TDN.
Comment: One commenter alleged that, while SMCRA recognizes that
general programmatic violations should be addressed through the part
733 process, the 2025 proposed rule violates
[[Page 7847]]
SMCRA by eliminating federal oversight for site-specific violations
caused by the State regulatory authority. This commenter cautioned that
this approach would fail to provide effective and timely oversight for
mine-specific violations, which is contrary to section 521(a) of SMCRA.
30 U.S.C. 1271(a).
Response: OSM disagrees with the commenter about the effect of
returning to the 2020 Rule position that an action plan is
``appropriate action.'' As explained in the preamble to the proposed
rule, an action plan does cause violations to be corrected, even at
specific mine sites. 90 FR at 25177. For example, while the 2020 Rule
was in effect, OSM entered into action plans with three State
regulatory authorities after determining a State regulatory program
issue existed. As part of the action plan, OSM and the States developed
a schedule to ensure that the State corrected the State regulatory
program issue impacting each permit. These concrete examples
demonstrate that action plans do cause site specific issues to be
remedied, if they exist, which is why it is more correct for action
plans to be considered ``appropriate action'' under revised Sec.
842.11(b)(1)(B)(3).
Comment: Other commenters supported reverting to the 2020 Rule
language in Sec. 842.11(b)(1)(ii)(B)(3) affirming that a programmatic
corrective action plan can be considered appropriate action in response
to a TDN. These commenters noted that a corrective action plan is a
necessary tool for successful collaboration between OSM and State
regulatory authorities to expeditiously address program issues.
Response: OSM agrees with these commenters that an action plan
should be considered appropriate action and that an action plan is a
useful tool to collaborate with the State regulatory authorities to
ensure SMCRA is effectively and efficiently enforced.
Comment: Another commenter opposed the proposed amendment to Sec.
842.11(b)(1)(ii)(B)(3) and suggested modifying Sec.
842.11(b)(1)(ii)(B)(4) to expand ``good cause'' to include a ``response
by the [S]tate regulatory authority indicat[ing] that the possible
violation identified in the [TDN . . .] constitutes a [S]tate
regulatory program issue under Part 733.'' The commenter alleged that
these proposed changes are necessary to prevent State regulatory
program issues from being subject to Federal enforcement or
inspections.
Response: In the 2024 Rule, OSM changed the regulations to provide
that action plans correcting State regulatory program issues
constituted good cause rather than appropriate action. However, as
described above and in the preamble to the proposed rule, OSM is
reverting back to the 2020 Rule's approach--that action plans are
appropriate action to cause a violation to be corrected--because the
action plan will take care of both the underlying problem (i.e., the
State regulatory program issue) as well as any manifestations of that
issue in a permit. Thus, to more closely align the regulations with the
statutory text of section 521(a)(2) of SMCRA, 30 U.S.C. 1271(a)(2), OSM
is revising the regulations as proposed and as set forth in the 2020
Rule to allow action plans to be considered appropriate action. State
regulatory program issues are addressed under section 521(b) and, thus,
are not addressed through Federal enforcement or inspections unless, as
noted in Sec. 733.12(d), that State regulatory program issue ``results
in or may imminently result in a violation of the approved State
program.''
Comment: One commenter stated that programmatic oversight is not an
appropriate replacement for TDNs or direct enforcement to correct a
violation and would be contrary to SMCRA. The commenter noted that,
historically, States had not adequately regulated coal mining and, in
enacting SMCRA, Congress sought to address that issue by giving OSM a
role in mine-specific enforcement, in addition to programmatic
oversight, and that allowing programmatic oversight to replace permit-
specific enforcement would prevent timely actions to abate violations
and require OSM to use a more disruptive and time-consuming process of
partial or complete program withdrawal. The commenter provided an
example of a citizen who submitted a citizen complaint to OSM. In
response, OSM issued a TDN to the State regulatory authority and, after
a Federal inspection, issued a Federal notice of violation to the
operator to correct the violation. The citizen also pursued a remedy
with the State regulatory authority, but that process took four years
(although it was eventually resolved in favor of the citizen). The
commenter alleged that OSM's proposal to forego Federal enforcement in
favor of programmatic action would result in situations where citizens
must wait excessive amounts of time for violations to be abated, if
they are abated at all.
Response: While OSM appreciates this commenter's concern, OSM notes
that the example provided by the commenter occurred before OSM
promulgated the 2020 Rule. Among other things, OSM developed the 2020
Rule to create a more efficient process that would also provide the
same level of citizen participation. After a brief experiment with the
2024 Rule, OSM now recognizes that the 2020 Rule, as slightly modified
here, strikes the proper balance. Programmatic action is appropriate
for programmatic issues, such as State regulatory program issues. As
noted repeatedly above, this final rule and the 2020 Rule at Sec.
733.12(d) do not preclude use of the TDN process, even if a State
regulatory issue has been identified if the State regulatory program
issue ``results in or may imminently result in a violation of the
approved State program.''
Comment: One commenter expressed concern that this rule would allow
OSM personnel to ignore a violation that is not being abated if a State
regulatory authority is not properly interpreting or applying its
approved State program. According to this commenter, such an outcome
would be contrary to section 517(e) of SMCRA, 30 U.S.C. 1267(e), which
requires that ``[e]ach inspector, upon detection of each violation of
any requirement of any State or Federal program or this Chapter, shall
forthwith inform the operator in writing, and shall report in writing
any such violation to the regulatory authority.''
Response: OSM disagrees with the premise of this comment. Nothing
in the 2020 Rule or in the rule being finalized today would run afoul
of section 517(e) of SMCRA, 30 U.S.C. 1267(e), or allow a Federal
inspector to ignore a violation of SMCRA, the Federal regulations, the
State program, or a permit condition. To OSM's knowledge, this
situation did not occur when the 2020 Rule was in effect, and OSM does
not expect it to occur here. If it does, SMCRA contains a citizen suit
provision in section 520, 30 U.S.C. 1270(a)(2), that a citizen could
use to ensure the Act is enforced.
I. Request for Federal Inspection
Section 842.12 of the Federal regulations sets forth information
about a citizen's request for a Federal inspection. For the first time,
the 2024 Rule amended existing 30 CFR 842.11(b)(2) and 842.12(a) to
deem every citizen complaint to be a request for a Federal inspection.
89 FR at 24718. While this was done to eliminate real or perceived
barriers to public participation, this approach is contrary to the best
reading of SMCRA as a whole and the cooperative federalism principles
that form the bedrock of SMCRA. 90 FR at 25175. In addition, OSM
proposed to revert Sec. 842.12 back to the language contained in the
2020 Rule, which as discussed in the responses to comments in section
III.D., also requires that, for a request for a
[[Page 7848]]
Federal inspection, the citizen provide OSM with information about his
or her contact with the State regulatory authority. Except as noted in
this preamble, OSM is finalizing the provision as proposed.
Comment: A commenter opposed the proposal to amend Sec. 842.12(a)
to require that a citizen include a statement that they have notified
the appropriate State regulatory authority of the existence of the
possible violation and the reason why the State regulatory authority
has not taken action with respect to the possible violation. Their
rationale is that this position is contrary to positions OSM took in
the 1979 and 1982 rulemakings on this topic and is contrary to the
intent that the public is allowed to participate in the enforcement of
SMCRA. The commenter noted that OSM's position in 1979 was that OSM
lacks the authority to require a citizen to ask a State regulatory
authority to inspect a mine before asking for a Federal inspection. The
commenter also noted that OSM's position in 1982 was that waiting for a
citizen to notify a State regulatory authority would needlessly delay
the TDN process.
Response: OSM disagrees with the premise that the proposed
amendments to Sec. 842.12(a) are contrary to its historical position
in the 1979 and 1982 rulemakings. As noted in 2020 when OSM initially
proposed these changes, the clarification adopted in this final rule
does very little to change how citizens initiate complaints and
requests for Federal inspection with OSM and places no additional
burden on the citizen complaint process as compared to the pre-2020
Rule process. 85 FR at 75157. The final regulation at 30 CFR 842.12(a)
reconfirms the longstanding requirement that, when requesting a Federal
inspection, the citizen must include a statement that the citizen has
informed the State regulatory authority of the existence of the
possible violation, condition, or practice. The final rule also
requires the citizen to provide the basis for the assertion that the
State regulatory authority has not taken action with respect to the
possible violation. In removing this requirement in the 2024 Rule, OSM
stated that citizens should not need to state their allegation in
statutory or regulatory language because they are not necessarily well-
versed on the text of SMCRA or its implementing regulations. 89 FR at
24718. But the requirement to provide the basis for the assertion that
the State regulatory authority has not taken action with respect to the
possible violation does not require a statement based in statutory or
regulatory language. Instead, it merely requires a statement explaining
why the citizen believes the violation has not been corrected. As OSM
noted in 2020, this requirement would provide critical information to
help OSM more efficiently resolve the alleged violation and recognizes
that the State regulatory authority is almost always in the best
position to resolve any alleged violations more quickly and efficiently
than OSM. 85 FR at 75160.
In addition, OSM's experience implementing the 2024 Rule highlights
the need for the clarity and efficiency that the 2020 Rule provided.
Since the effective date of the 2024 Rule, OSM has seen an increase in
the number of citizen complaints, all of which were, under that rule,
considered requests for a Federal inspection. However, this increase in
the number of citizen complaints has not corresponded with an increase
in enforcement actions taken by OSM in response to a TDN because only
one of the citizen complaints received under the 2024 Rule required any
follow up action by OSM after investigation. In other words, after
completing its investigation of the State regulatory authority
responses, OSM found that, after learning of the citizen concern, the
State regulatory authority either took appropriate action or adequately
explained to OSM why there was good cause for the State regulatory to
take no action, often because there was no violation. Unfortunately,
the processing of this increased number of citizen complaints and TDNs
amounted to a waste of agency resources that could have been used to
address other priorities.
For example, OSM received a citizen complaint with accompanying
photographic evidence alleging SMCRA violations at an operation.
Because the pictures provided reason to believe that a possible
violation risking imminent harm existed, OSM conducted a Federal
inspection. When OSM arrived at the mine site, two days after receiving
the complaint, OSM discovered that all violations depicted in the
photographs had already been resolved by the State regulatory authority
and that the photos were more than two months old. Although this was an
apparent imminent harm violation, which process has not been changed by
either the 2020 Rule, the 2024 Rule, or this rule, it shows how a
comparable situation could occur in a non-imminent harm situation, and
how readily available information from a State regulatory authority
could create efficiencies in OSM's oversight process and prevent an
unnecessary expenditure of Federal resources.
Comment: Several commenters supported OSM's proposal to repeal the
provision in the 2024 Rule that allowed all citizen complaints to be
considered requests for Federal inspections because they contended that
that provision eroded State primacy and created new regulatory
uncertainties. These commenters maintained that the prior
interpretation that citizens must independently request a Federal
inspection better implements State primacy and is supported by the text
of SMCRA.
Response: As explained above and in the preamble to the proposed
rule, OSM agrees with these commenters and, as finalized, this rule
maintains the statutory distinction between requests for Federal
inspections under section 517(h)(1) of SMCRA, 30 U.S.C. 1267(h)(1), and
information that could give OSM a reason to believe a violation exists
under section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a)(1), which could be
from a citizen complaint.
Comment: Some commenters supported reverting to the 2020 Rule
language at Sec. 842.12 that required a citizen requesting a Federal
inspection to provide the basis for the assertion that the State
regulatory authority has not taken action with respect to the possible
violation.
Response: OSM agrees with these commenters and, as finalized, Sec.
842.12 contains a sentence that states: ``The statement must also set
forth the fact that the person has notified the State regulatory
authority, if any, in writing, of the existence of the possible
violation, condition, or practice, and the basis for the person's
assertion that the State regulatory authority has not taken action with
respect to the possible violation.'' OSM notes, however, as OSM did in
the preamble to the 2020 Rule that ``if the complainant notifies the
State regulatory authority simultaneously with filing a complaint with
OSMRE, the basis for the person's assertion could be as simple as
restating the allegations in the complaint made to the State regulatory
authority, coupled with the action, if any, taken by the State
regulatory authority in response.'' 85 FR at 75168. For example, OSM
accepted a citizen complaint under the 2020 Rule where a group
simultaneously submitted their complaint to OSM and the State
regulatory authority. As the basis for asserting that the State
regulatory authority had not taken action, the group cited specific
instances in the past when the State regulatory authority did not act
or did not resolve a previous complaint. OSM still encourages citizens
to first contact State regulatory
[[Page 7849]]
authorities with any concerns because the State regulatory authorities
are often in the best position to correct the action and, when
submitting a citizen complaint to OSM, to provide OSM with as much
information about the basis for the assertions in the complaint as
possible because it will help OSM determine if it has a reason to
believe that a violation exists.
Comment: To better align the Federal regulations with section
517(h)(1) of SMCRA, 30 U.S.C. 1267(h)(1), one commenter suggested that
OSM further amend Sec. 842.12(a), as proposed, to insert the phrase
``at the surface mining site'' after the word ``exists'' at the end of
the first sentence and again at Sec. 842.11(b)(1)(i) after the word
``exists'' and before the phrase ``a violation'' in the middle of the
first sentence.
Response: As noted above, OSM agrees with the commenter's suggested
change to Sec. 842.12(a) and has amended the final rule to include the
phrase ``at the surface mining site'' after the word ``exists'' at the
end of the first sentence. OSM did not make the comparable change to
Sec. 842.11(b)(1)(i) because that provision implements section
521(a)(1) of SMCRA, 30 U.S.C. 1271(a)(1), which, unlike section
517(h)(1), 30 U.S.C. 1267(h)(1), does not contain that phrase. Thus,
the change to Sec. 842.12(a) aligns both sections more closely to the
express statutory language.
Comment: One commenter stated that State regulatory authorities are
the appropriate entities to make threshold determinations of whether to
conduct Federal inspections of alleged violations.
Response: OSM disagrees with this comment. Whether or not OSM
should conduct a Federal inspection is a decision that SMCRA leaves to
OSM. See 30 U.S.C. 1271(a)(1) (providing that the Secretary, acting
through OSM, is the entity responsible for making a reason to believe
determination). OSM understands the commenter's point about cooperative
federalism and wholeheartedly agrees that a State regulatory authority
is in the best position to determine whether a violation exists within
its jurisdiction. However, SMCRA provides OSM with oversight in
specific instances, including as provided in section 521 of SMCRA. OSM
believes this rule, like the 2020 Rule, provides the correct balance as
provided in the statute between State primacy and Federal oversight.
Comment: One commenter suggested that OSM revise its regulations
further to add a requirement that citizens exhaust State procedures
before requesting a Federal inspection in a primacy State, unless the
complaint involves imminent danger or significant environmental harm.
Similarly, another commenter suggested revisions to Sec. 842.12 that
would direct requests for inspections in States with an approved
regulatory program to the relevant State regulatory authority, and not
OSM, unless there is reason to believe there is an imminent danger to
public health or safety or reasonably expected significant, imminent,
environmental harm, in which case the citizen would need to reach out
to the State regulatory authority and OSM.
Response: OSM appreciates the suggestions made by these commenters,
but OSM is not making the suggested changes in the final rule. The 2020
Rule, and the minor modifications to that rule made by this rulemaking,
reflect the best reading of statutory provisions in SMCRA. In non-
imminent harm situations, SMCRA neither requires exhaustion of State
procedures before a Federal inspection nor does it require OSM to
direct requests for inspections to States first.
J. Action Plans
The final rule maintains the concept of corrective action plans, as
first codified in the 2020 Rule and maintained, in large part, in the
2024 Rule. The final rule, however, generally reverts the substantive
language of Sec. Sec. 733.5 and 733.12 back to the 2020 Rule.
Comment: One commenter suggested modifying 30 CFR part 733 to
prioritize the use of programmatic oversight tools before using Federal
enforcement to correct permit issues. Similarly, another commenter
stated that OSM should revise the Federal regulations to prohibit
direct Federal enforcement unless the violation at the mine site
constituted an imminent public danger or significant imminent
environmental harm. This commenter argued that the Federal regulations
should be modified to require that all other concerns, even non-
imminent harm violations, should be addressed through the part 733
process.
Response: OSM appreciates the commenters' perspective, but, at this
time, OSM has decided to simply return the regulations back to the 2020
Rule, with a few minor revisions. When OSM promulgated the 2020 Rule,
OSM considered multiple alternative approaches and decided the 2020
Rule struck the best balance between State primacy and limited Federal
oversight as set forth in SMCRA. Although OSM briefly experimented with
the 2024 Rule's approach, as discussed in this preamble, it did not
reflect the best reading of SMCRA as a whole and did not give
appropriate consideration to its cooperative federalism principles. At
this time, OSM does not consider the commenters' suggested approach to
be as consistent with the balance articulated in SMCRA.
Comment: One commenter suggested that Sec. 733.12(a)(2) should be
revised to state that if the OSM Director ``has reason to believe''
that a State regulatory authority is not effectively implementing,
administering, enforcing, or maintaining all or a portion of its
program, the OSM Director may ``initiate proceedings to'' substitute
Federal enforcement of the program or withdraw approval of the program.
The commenter explained that the intent of the proposed revisions was
to reinforce the flexibility of 30 CFR part 733 and clarify the
chronology of a proceeding under part 733.
Response: This commenter made this same comment in response to the
2020 Rule. See 85 FR at 75174. At that time, OSM declined to make this
change because OSM was concerned that it would muddy the distinction
between the action plan, which is developed before the Sec. 733.13
process is started, and the Sec. 733.13 process itself, which could
lead to the substitution of Federal enforcement of the State program or
the withdrawal of the State program. Id. After reconsideration of this
comment, as discussed above in section II, OSM has now decided to make
the suggested change to Sec. 733.12(a)(2) by replacing ``concludes''
with ``has reason to believe'' in the first clause. This change better
aligns the Federal regulations with the statutory structure of SMCRA
and the cooperative federalism framework. Moreover, after working
through several action plans under the 2020 Rule, including one that
ultimately initiated the Sec. 733.13 process, OSM no longer thinks
that it is likely to lead to the confusion that OSM previously noted in
2020.
K. Miscellaneous
Comment: Several commenters recommended removing 30 CFR
843.12(a)(2), which allows OSM to issue notices of violation in primacy
states on the basis of ``any federal inspection other than one
described in paragraph (a)(1) of this section,'' alleging that this
practice is not grounded in SMCRA. These commenters allege that this
language inaccurately extends OSM's authority to issue notice of
violations to inspections not mentioned in section 521(a)(3) of SMCRA,
30 U.S.C. 1271(a)(3), and, therefore, is not the best reading of SMCRA.
Response: While OSM appreciates the commenters' suggestions, OSM
did not
[[Page 7850]]
propose any changes to 30 CFR 843.12(a)(2) or the Federal enforcement
provisions of the Federal regulations in the proposed rule. Thus, these
comments are outside the scope of this rulemaking. Moreover, OSM fully
addressed a similar suggestion in the preamble to the 2020 Rule. See 85
FR at 75180. For these reasons, OSM is not adopting the suggestions in
this comment.
Comment: Several commenters recommended revising 30 CFR
842.11(b)(1)(ii)(B)(2) to specify that a State regulatory authority
owed ``considerable'' or ``substantial'' deference when OSM reviews a
State regulatory authority's response to a TDN. One commenter suggested
that while the current text of Sec. 842.11(b) contains the
``arbitrary, capricious or abuse of discretion'' standard for reviewing
a State regulatory authority's response to a TDN issued by OSM, a
second sentence stating that ``[t]he authorized representative will
accord the State regulatory authority substantial deference in
evaluating whether the response is arbitrary capricious or an abuse of
discretion under the State program'' was necessary to ensure that a
State regulatory authority is granted the appropriate deference by OSM.
Response: These comments are virtually the same as comments
received in response to the proposed rule that led to the 2020 Rule,
and OSM directs the reader to its more detailed response in that
document. 85 FR at 75178. In sum, OSM is still declining to make the
proposed changes to Sec. 842.11(b)(1)(ii)(B)(2). OSM reiterates that
under the ``arbitrary, capricious, or an abuse of discretion''
standard, which was not changed by either the 2020 Rule or the 2024
Rule or proposed to be changed in this rulemaking, OSM already affords
the appropriate level of deference to a State regulatory authority,
which is consistent with SMCRA's cooperative federalism model.
Comment: One commenter suggested removing 30 CFR 842.15(d), which
allows formal appeals to the Office of Hearings and Appeals (OHA) if
OSM decides not to undertake a Federal inspection or take appropriate
action, arguing that SMCRA only authorizes informal review in such a
situation.
Response: OSM disagrees with the suggestion to revise Sec. 842.15
to remove paragraph (d). OSM did not propose any changes to Sec.
842.15 in the proposed rule and removal of this provision would be
beyond the scope of this rulemaking. Furthermore, OSM addressed a
similar comment in the preamble to the 2020 Rule, and OSM directs the
reader to the more detailed discussion of why OSM declined to make that
change then. 85 FR at 75180. For the same reasons, OSM declines to make
these changes in this rulemaking.
Comment: One commenter suggested a series of additional revisions
to 30 CFR part 842 to preclude programmatic and permitting issues from
the TDN process. The suite of suggested edits included adding new
definitions to Sec. 842.5 for ``State regulatory program issue'' and
``violation'' and defining the first term as it is defined in Sec.
733.5 and the second term as ``an activity, condition or practice at a
surface coal mining and reclamation operation which does not conform to
the permit or applicable regulatory program.'' In addition the
commenter suggested that OSM should not adopt proposed Sec.
842.11(b)(1)(ii)(B)(3) and, instead, should amend Sec.
842.11(b)(1)(ii)(B)(4) to add that ``good cause'' can include ``(ii)
The response by the state regulatory authority indicates that the
possible violation identified in the notice provided under paragraph
(b)(1)(ii)(B)(1) constituted a State regulatory program issue under
Part 733.'' The commenter stated that these proposed changes were
needed because the 2020 Rule and, thus, the 2025 proposed rule, would
potentially subject operators to Federal inspections or enforcement if
a State declines to enter into an action plan. The commenter stated
that OSM should instead follow the approach of the 1988 TDN Rulemaking
and revise the regulations to reflect that violations of SMCRA cannot
be enforceable against an operator until OSM engages in a part 733
process to address the State implementation issues.
Response: OSM declines to accept the suggestions in this comment
because they propose substantive changes to Sec. Sec. 842.5 and 842.11
that were not proposed in the proposed rule. While these suggestions
could be considered a logical outgrowth, these proposed changes would
significantly alter the careful balance struck in the 2020 Rule that
OSM developed to clarify the procedures for addressing violations
outlined in section 521(a) of SMCRA, 30 U.S.C. 1271(a), and that are
subject to the 30 CFR part 842 TDN process versus programmatic issues
outlined in section 521(b) that are subject to 30 CFR part 733.
Moreover, contrary to the suggestion from the commenter, OSM has
consistently acknowledged that all programmatic and permitting issues
should not automatically be precluded from the TDN process because
these violations have the potential to manifest in site-specific
violations that are appropriately addressed through the TDN process.
See 85 FR at 75168, 75184-75185 (``If a citizen complainant makes OSMRE
aware of a State regulatory program issue that has not resulted in
actual or imminent violation of the approved State program that often
manifests as an on-the-ground impact at a specific site, OSMRE will
handle the issue initially through the enhancements to the 30 CFR part
733 process adopted in this final rule. However, as noted repeatedly,
OSMRE will still initiate an appropriate Federal enforcement action,
such as issuance of a TDN, if the State regulatory program issue
results in, or may imminently result in, a violation of the approved
State program.''). Prohibiting OSM from correcting an on-the-ground
violation of SMCRA until OSM completes the part 733 process would
impermissibly frustrate the purpose of SMCRA to ``assure that surface
coal mining operations are so conducted as to protect the environment''
and ``assure that appropriate procedures are provided for the public
participation in the development, revision, and enforcement of
regulations, standards, reclamation plans, or programs established by
the Secretary or any State under this Act.'' 30 U.S.C. 1202(d) and (i).
Furthermore, waiting to correct an on-the-ground violation until OSM
and the State complete a part 733 process could significantly delay
enforcement of a violation, increase costs to operators to remedy the
violation, and potentially impact their ability to correct the
violation.
Comment: One commenter supported the added flexibility that the
proposed rule would provide for States and OSM to resolve disputes
through action plans but noted concern that a lack of timeframes may
cause excessive delays in resolving disputes.
Response: OSM appreciates the commenter's support for the rule and
the flexibility it provides in tailoring OSM's oversight to the nature
of the potential issue. OSM understands the commenter's concern that
removing timeframes for designing and implementing action plans has the
potential to result in delays in resolving a State regulatory program
issue but, after reviewing the proposed language in Sec. 733.12, the
text as finalized here appropriately balances the need to resolve State
regulatory program issues quickly with OSM's interest in retaining the
flexibility to employ any number of compliance strategies, including
but not limited to action plans, to ensure that the State regulatory
authority corrects a State regulatory program issue in a timely and
effective manner. Specifically, OSM was concerned that
[[Page 7851]]
the rigid timelines and requirements in Sec. 733.12(b) would leave OSM
without sufficient flexibility to work with the States to develop the
most appropriate and achievable compliance strategy to ensure that any
identified State regulatory program issues are corrected and do not
become an issue that would give the Director reason to believe that the
State regulatory authority is not effectively implementing,
administering, enforcing, or maintaining all or a portion of its State
regulatory program. For example, the 2024 Rule required OSM to develop
and approve an action plan within 60 days after OSM identified a State
regulatory program issue via a TDN and required that each action plan
conform to rigid requirements. While some of those requirements reflect
common sense documentation and tracking of compliance measures, the
prescriptive and rigid requirements created an overly complicated and
time-consuming process that was unnecessary and burdensome for all but
the most serious State regulatory program issues. The one-size-fits-all
approach to addressing State regulatory program issues proved
inefficient and unnecessary. Instead, OSM is returning to the more
flexible approach of the 2020 Rule where those issues that cannot be
resolved within 120 days will require an action plan but issues that
can be resolved within that time frame can be managed without an action
plan. Further, the approach adopted today still retains the important
elements of an action plan and the tracking and monitoring required to
ensure the State regulatory program issues are resolved without
burdening OSM and State regulatory authorities with unnecessary
procedures.
Comment: In response to OSM's invitation to comment on ``whether
any portions of the preexisting regulations could be improved to better
meet this Administration's objectives'' (90 FR at 25177), one commenter
requested that OSM consider removing the provisions of 30 CFR
842.12(b)(1) that allow a State regulatory authority to seek informal
review when OSM determines that a State's response to a TDN does not
constitute appropriate action or good cause. In support of this
recommendation, the commenter stated that nothing in section 521 of
SMCRA, 30 U.S.C. 1271, provides for creation of a new right of
``informal review'' for State regulatory authorities in the TDN
process. The commenter alleges that delaying a Federal inspection
pending resolution of an ``informal review'' after the State regulatory
authority has already had full opportunity to take action or to justify
inaction, is contrary to the ``best reading'' of SMCRA and, therefore,
should be removed.
Response: This commenter made a similar comment in response to the
2024 Rule. See 89 FR at 24727. Then, as now, OSM declines to make the
change suggested by the commenter. The informal review procedures
raised by the commenter, which are actually located in Sec.
842.11(b)(1)(iii)(A)-(C), are too important to the balance of the
cooperative federalism relationship between OSM's State regulatory
authority partners and OSM to remove, especially without stakeholder
input and full opportunity for notice and comment.
Comment: One commenter alleged that the rationale for the proposed
changes was not efficiency or the elimination of duplication but
instead was intended to reduce the workload of Federal and State
regulatory authorities because of inadequate funding available to
implement SMCRA. The commenter opined that the legislative history of
SMCRA indicates that Congress passed SMCRA, in part, to address the
fact that insufficient funding at the State level had led to inadequate
enforcement of State mining laws and that, if inadequate State funding
is the issue, it should be addressed programmatically through the part
733 process. Alternatively, the commenter alleged that the proposed
changes are improperly designed to protect the coal industry and State
regulatory authorities from citizen complaints.
Response: This comment is very similar to a comment received in
response to the 2020 Rule. After reviewing OSM's response to that
comment at that time and new material related to this rulemaking, OSM
reaffirms its disagreement with the commenter and directs the reader to
the agency's 2020 response. 85 FR at 75177. As OSM noted before, this
commenter provided no evidence that either OSM or the State regulatory
authorities have insufficient funding to carry out their obligations
under SMCRA. As stated throughout this docket and in the justification
for the 2020 Rule, this rulemaking is intended to add transparency to
OSM's oversight responsibilities; promote regulatory certainty for
State regulatory authorities, regulated entities, and the public;
enhance OSM's relationship with the State regulatory authorities;
reduce redundancy in inspection and enforcement; and streamline the
process for notifying State regulatory authorities of possible
violations and other issues. While it is true that States fund a
significant portion of the cost to administer State SMCRA programs,
Federal regulatory grants, appropriated annually by Congress, are
awarded to State regulatory authorities based, in part, on the
anticipated workload, such as permitting and inspection, that is
necessary for State regulatory authorities to administer and enforce
their approved State programs under SMCRA. See 30 CFR part 735.
IV. Severability
The changes to the TDN and Federal inspection provisions at 30 CFR
part 842 are intended to be severable from the 30 CFR part 733
provisions for State regulatory program issues and associated action
plans. Thus, if any of the provisions of this final rule are stayed or
invalidated by a reviewing court, the other provisions could operate
independently and would be applicable to the relevant provisions of the
existing regulations. For example, if a court were to invalidate any
portion of the changes to part 842, the provisions at part 733 could
still operate independently. Conversely, if a court were to invalidate
any of the provisions at part 733, the provisions at part 842 could
still operate independently. Likewise, changes to specific sections
within these parts are intended to be severable from the changes to
other sections.
V. Procedural Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This final rule does not result in a taking of private property or
otherwise have regulatory takings implications under E.O. 12630. The
rule revises a regulation that OSM has determined does not represent
the best reading of SMCRA and is inconsistent with principles of
cooperative federalism but does not impact any property rights;
therefore, the rule will not result in private property being taken for
public use without just compensation. A takings implication assessment
is not required.
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
E.O. 12866 provides that OIRA within OMB will review all
significant rules. OIRA has determined that this final rule is not
significant.
E.O. 13563 reaffirms the principles of E.O. 12866, while calling
for improvements in the Nation's regulatory system to promote
predictability, reduce
[[Page 7852]]
uncertainty, and use the best, most innovative, and least burdensome
tools for achieving regulatory ends. E.O. 13563 directs agencies to
consider regulatory approaches that reduce burdens and maintain
flexibility and freedom of choice for the public where these approaches
are relevant, feasible, and consistent with regulatory objectives. E.O.
13563 emphasizes further that agencies must base regulations on the
best available science and that the rulemaking process must allow for
public participation and an open exchange of ideas. The Department
developed this final rule in a manner consistent with these
requirements.
Executive Order 12988--Civil Justice Reform
This final rule complies with the requirements of E.O. 12988. Among
other things, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation;
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Executive Order 13132--Federalism
Under the criteria of section 1 of E.O. 13132, this final rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement. While revising the existing
regulations governing the TDN process would have a direct effect on the
States and the Federal government's relationship with the States, this
effect would not be significant, as it would neither impose substantial
unreimbursed compliance costs on States nor preempt State law.
Furthermore, this final rule does not have a significant effect on the
distribution of power and responsibilities among the various levels of
government. The final rule would not increase burdens on State
regulatory authorities to address and resolve underlying issues. In
fact, OSM anticipates that its changes to more closely align the
regulations to SMCRA would result in de minimis burden reduction for
State regulatory authorities. As such, a federalism summary impact
statement is not required.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior (Department) strives to strengthen
its government-to-government relationship with Tribes through a
commitment to consultation with Tribes and recognition of their right
to self-governance and Tribal sovereignty. OSM has evaluated this final
rule under the Department's consultation policy and under the criteria
in E.O. 13175 and determined that it does not have substantial direct
effects on Federally recognized Tribes and that consultation under the
Department's Tribal consultation policy is not required. Moreover, no
Tribes have yet established primacy. Thus, this rule will not impact
the regulation of surface coal mining operations on Indian lands as
that term is defined under SMCRA.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This final rule is not a significant energy action as defined in
E.O. 13211. Therefore, a Statement of Energy Effects is not required.
National Environmental Policy Act
This final rule does not constitute a major Federal action
significantly affecting the quality of the human environment. A
detailed statement under the National Environmental Policy Act of 1969
(NEPA), 42 U.S.C. 4321 et seq., is not required because the rule is
covered by a categorical exclusion. Specifically, OSM has determined
that the final rule is administrative or procedural in nature in
accordance with the Department of the Interior's NEPA regulations at 43
CFR 46.210(i). OSM has also determined that the final rule does not
involve any of the extraordinary circumstances listed in 43 CFR 46.215
that would require further analysis under NEPA.
Paperwork Reduction Act
This final rule does not impose any new information collection
burden under the Paperwork Reduction Act. OMB has previously approved
the information collection activities contained in the existing
regulations and has assigned OMB control number 1029-0118. This rule
does not create any changes in the information collection burden
because OSM is not making any changes to the information collection
requirements. OSM estimates that the number of burden hours associated
with TDN processing will stay the same as what is currently authorized
by OMB control number 1029-0118.
Regulatory Flexibility Act
OSM certifies that this final 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.). OSM previously
evaluated the impact of the regulatory changes at the time that OSM
promulgated the 2020 Rule and determined that the rule changes would
not place, cause, or create any unnecessary burdens on the public,
State regulatory authorities, or small businesses; would not discourage
innovation or entrepreneurial enterprises; and would be consistent with
SMCRA, from which the regulations draw their implementing authority.
Congressional Review Act
This final rule is not a major rule under the Congressional Review
Act, 5 U.S.C. 804(2). Specifically, the direct final rule: (a) will not
have an annual effect on the economy of $100 million or more; (b) will
not cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) will not have significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
Unfunded Mandates Reform Act
This final rule does not impose an unfunded mandate on State,
local, or Tribal governments, or the private sector, of more than $100
million per year. The rule does not have a significant or unique effect
on State, local, or Tribal governments, or the private sector. The rule
merely revises the Federal regulations to eliminate duplication of
resources and processes between Federal and State agencies and enhance
the cooperation between OSM and State regulatory authorities.
Therefore, a statement containing the information required by the
Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects
30 CFR Part 733
Intergovernmental relations, Surface mining, Underground mining.
[[Page 7853]]
30 CFR Part 842
Law enforcement, Surface mining, Underground mining.
Lanny E. Erdos,
Director, Office of Surface Mining, Reclamation, and Enforcement
Exercising the Authority of the Assistant Secretary--Land and Minerals
Management.
For the reasons stated in the preamble, the Department of the
Interior, acting through OSMRE, amends 30 CFR parts 733 and 842 to read
as follows:
PART 733--EARLY IDENTIFICATION OF CORRECTIVE ACTION, MAINTENANCE OF
STATE PROGRAMS, PROCEDURES FOR SUBSTITUTING FEDERAL ENFORCEMENT OF
STATE PROGRAMS, AND WITHDRAWING APPROVAL OF STATE PROGRAMS
0
1. The authority citation for Part 733 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Revise Sec. 733.5 to read as follows:
Sec. 733.5 Definitions.
As used in this part, the following terms have the specified
meanings:
Action plan means a detailed plan that OSMRE prepares, typically in
consultation with the State regulatory authority, to resolve one or
more State regulatory program issues and that includes a schedule that
contains specific requirements that a State regulatory authority must
achieve in a timely manner.
State regulatory program issue means an issue OSMRE identifies
during oversight of a State or Tribal regulatory program that may
result from a State regulatory authority's implementation,
administration, enforcement, or maintenance of all or any portion of
its State regulatory program that is not consistent with the basis for
OSMRE's approval of the State program. This may include, but is not
limited to, instances when a State regulatory authority has not adopted
and implemented program amendments that are required under Sec. 732.17
and subchapter T of this chapter, and issues related to the requirement
in section 510(b) of the Act that a State regulatory authority must not
approve a permit or revision to a permit unless the State regulatory
authority finds that the application is accurate and complete and that
the application is in compliance with all requirements of the Act and
the State regulatory program.
0
3. Revise Sec. 733.12 to read as follows:
Sec. 733.12 Early identification and corrective action to address
State regulatory program issues.
(a) When the Director identifies a State regulatory program issue,
he or she should take action to make sure the identified State
regulatory program issue is corrected as soon as possible to ensure
that it does not become an issue that would give the Director reason to
believe that the State regulatory authority is not effectively
implementing, administering, enforcing, or maintaining all or a portion
of its State regulatory program.
(1) The Director may become aware of State regulatory program
issues through oversight of State regulatory programs or as a result of
information received from any source, including a citizen complaint.
(2) If the Director has reason to believe that the State regulatory
authority is not effectively implementing, administering, enforcing, or
maintaining all or a portion of its State regulatory program, the
Director may substitute Federal enforcement of a State regulatory
program or withdraw approval of a State regulatory program as provided
in this part.
(b) The Director or his or her delegate may employ any number of
compliance strategies to ensure that the State regulatory authority
corrects a State regulatory program issue in a timely and effective
manner. However, if the Director or delegate does not expect that the
State regulatory authority will resolve the State regulatory program
issue within 180 days after identification or that it is likely to
result in a violation of the approved State program, then the Director
or delegate will develop and institute an action plan.
(1) An action plan will be written with specificity to identify the
State regulatory program issue and an effective mechanism for timely
correction.
(2) An action plan will identify any necessary technical or other
assistance that the Director or his or her designee can provide and
remedial measures that a State regulatory authority must take
immediately.
(3) An action plan will also include:
(i) An action plan identification number;
(ii) A concise title and description of the State regulatory
program issue;
(iii) Specific criteria for establishing when complete resolution
of the State regulatory program issue will be achieved;
(iv) Specific and orderly sequence of actions the State regulatory
authority must take to remedy the State regulatory program issue;
(v) A schedule for completion of each action in the sequence; and
(vi) A clear explanation that if, upon completion of the action
plan, the State regulatory program issue is not corrected, the
provisions of Sec. 733.13 may be triggered.
(c) All identified State regulatory program issues, and any
associated action plans, must be tracked and reported in the applicable
State regulatory authority's Annual Evaluation Report. Each State
regulatory authority Annual Evaluation Report will be accessible
through OSMRE's website and at the relevant OSMRE office. Within each
report, benchmarks identifying progress related to resolution of the
State regulatory program issue must be documented.
(d) Nothing in this section prevents a State regulatory authority
from taking direct enforcement action in accordance with its State
regulatory program, or OSMRE from taking appropriate oversight
enforcement action, in the event that a previously identified State
regulatory program issue results in or may imminently result in a
violation of the approved State program.
PART 842--FEDERAL INSPECTIONS AND MONITORING
0
4. The authority citation for part 842 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 842.5 [Removed and Reserved]
0
5. Remove and reserve Sec. 842.5.
0
6. Amend Sec. 842.11 by revising paragraph (b) to read as follows:
Sec. 842.11 Federal inspections and monitoring.
* * * * *
(b)(1) An authorized representative of the Secretary must
immediately conduct a Federal inspection:
(i) When the authorized representative has reason to believe on the
basis of any information readily available to him or her, from any
source, including any information a citizen complainant or the relevant
State regulatory authority submits (other than information resulting
from a previous Federal inspection), that there exists a violation of
the Act, this chapter, the State regulatory program, or any condition
of a permit or an exploration approval, or that there exists any
condition, practice, or violation that creates an imminent danger to
the health or safety of the public or is causing or could reasonably be
expected to cause a significant, imminent
[[Page 7854]]
environmental harm to land, air, or water resources and--
(ii)(A) There is no State regulatory authority or the Office is
enforcing the State regulatory program under section 504(b) or 521(b)
of the Act and part 733 of this chapter; or
(B)(1) The authorized representative has notified the State
regulatory authority of the possible violation and more than ten days
have passed since notification, and the State regulatory authority has
not taken appropriate action to cause the violation to be corrected or
to show good cause for not doing so, or the State regulatory authority
has not provided the authorized representative with a response. After
receiving a response from the State regulatory authority, but before a
Federal inspection, the authorized representative will determine in
writing whether the standards for appropriate action or good cause have
been satisfied. A State regulatory authority's failure to respond
within ten days does not prevent the authorized representative from
making a determination, and will constitute a waiver of the State
regulatory authority's right to request review under paragraph
(b)(1)(iii) of this section. Where appropriate, OSMRE may issue a
single ten-day notice for substantively similar possible violations
found on two or more permits, including two or more substantively
similar possible violations identified in one or more citizen
complaints.
(2) For purposes of this subchapter, an action or response by a
State regulatory authority that is not arbitrary, capricious, or an
abuse of discretion under the state program shall be considered
``appropriate action'' to cause a violation to be corrected or ``good
cause'' for failure to do so.
(3) Appropriate action includes enforcement or other action
authorized under the approved State program to cause the violation to
be corrected. Appropriate action may include OSMRE and the State
regulatory authority immediately and jointly initiating steps to
implement corrective action to resolve any issue that the authorized
representative and applicable Field Office Director identify as a State
regulatory program issue, as defined in 30 CFR part 733.
(4) Good cause includes:
(i) The possible violation does not exist under the State
regulatory program;
(ii) The State regulatory authority has initiated an investigation
into a possible violation and has determined that it requires a
reasonable, specified additional amount of time to determine whether a
violation exists. When analyzing the State regulatory authority's
response for good cause, the authorized representative has discretion
to determine how long the State regulatory authority should reasonably
be given to complete its investigation of the possible violation and
will communicate to the State regulatory authority the date by which
the investigation must be completed. At the conclusion of the specified
additional time, the authorized representative will re-evaluate the
State regulatory authority's response including any additional
information provided;
(iii) The State regulatory authority demonstrates that it lacks
jurisdiction over the possible violation under the State regulatory
program;
(iv) The State regulatory authority demonstrates that it is
precluded from taking action on the possible violation because an
administrative review body or court of competent jurisdiction has
issued an order concluding that the possible violation does not exist
or that the temporary relief standards of the State regulatory program
counterparts to section 525(c) or 526(c) of the Act have been
satisfied; or
(v) Regarding abandoned sites, as defined in 30 CFR 840.11(g), the
State regulatory authority is diligently pursuing or has exhausted all
appropriate enforcement provisions of the State regulatory program.
(C) The person supplying the information supplies adequate proof
that an imminent danger to the public health and safety or a
significant, imminent environmental harm to land, air or water
resources exists and that the State regulatory authority has failed to
take appropriate action.
(iii) (A) The authorized representative shall immediately notify
the state regulatory authority in writing when in response to a ten-day
notice the state regulatory authority fails to take appropriate action
to cause a violation to be corrected or to show good cause for such
failure. If the State regulatory authority disagrees with the
authorized representative's written determination, it may file a
request, in writing, for informal review of that written determination
by the Deputy Director. Such a request for informal review may be
submitted to the appropriate OSMRE field office or to the office of the
Deputy Director in Washington, DC The request must be received by OSMRE
within 5 days from receipt of OSMRE's written determination.
(B) Unless a cessation order is required under Sec. 843.11, or
unless the state regulatory authority has failed to respond to the ten-
day notice, no Federal inspection action shall be taken or notice of
violation issued regarding the ten-day notice until the time to request
informal review as provided in Sec. 842.11(b)(1)(iii)(A) has expired
or, if informal review has been requested, until the Deputy Director
has completed such review.
(C) After reviewing the written determination of the authorized
representative and the request for informal review submitted by the
State regulatory authority, the Deputy Director shall, within 15 days,
render a decision on the request for informal review. He shall affirm,
reverse, or modify the written determination of the authorized
representative. Should the Deputy Director decide that the State
regulatory authority did not take appropriate action or show good
cause, he shall immediately order a Federal inspection or reinspection.
The Deputy Director shall provide to the State regulatory authority and
to the permittee a written explanation of his decision, and if the ten-
day notice resulted from a request for a Federal inspection under Sec.
842.12 of this part, he shall send written notification of his decision
to the person who made the request.
(b) (2) An authorized representative will have reason to believe
that a violation, condition, or practice referred to in paragraph
(b)(1)(i) of this section exists if the facts that a complainant
alleges, or facts that are otherwise known to the authorized
representative, constitute simple and effective documentation of the
alleged violation, condition, or practice. In making this
determination, the authorized representative will consider any
information readily available to him or her, from any source, including
any information a citizen complainant or the relevant State regulatory
authority submits to the authorized representative.
* * * * *
0
7. Amend Sec. 842.12 by revising paragraph (a) to read as follows:
Sec. 842.12 Requests for Federal inspections.
(a) Any person may request a Federal inspection under Sec.
842.11(b) by providing to an authorized representative a signed,
written statement (or an oral report followed by a signed written
statement) setting forth information that, along with any other readily
available information, may give the authorized representative reason to
believe that a violation, condition, or practice referred to in Sec.
842.11(b)(1)(i) exists at the surface mining site. The statement must
also set forth the fact
[[Page 7855]]
that the person has notified the State regulatory authority, if any, in
writing, of the existence of the possible violation, condition, or
practice, and the basis for the person's assertion that the State
regulatory authority has not taken action with respect to the possible
violation. The statement must set forth a phone number, address, and,
if available, an email address where the person can be contacted.
* * * * *
[FR Doc. 2026-03301 Filed 2-18-26; 8:45 am]
BILLING CODE 4310-05-P
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</html>Indexed from Federal Register on February 19, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.