PART 3460—ENVIRONMENT Authority: The Mineral Leasing Act of 1920, as amended and supplemented (30 U.S.C. 181 et seq. et seq. et seq. et seq. Source: 44 FR 42638, July 19, 1979, unless otherwise noted. Subpart 3461—Federal Lands Review: Unsuitability for Mining § 3461.0-3 Authority. (a) These regulations are issued under the authority of the statutes listed in § 3400.0-3 of this title. (b) These regulations primarily implement: (1) The general unsuitability criteria in section 522(a) of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1272(a)); (2) The Federal lands review in section 522(b) of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1272(b)); and (3) The prohibitions against mining certain lands in section 522(e) of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1272(e)). § 3461.0-6 Policy. The Department shall carry out the review of Federal lands under section 522(b) of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1272(b)) principally through land use planning assessments by the surface management agency regarding the unsuitability of Federal lands for all or certain stipulated methods of coal mining. § 3461.0-7 Scope. Each criterion in § 3461.1 of this title uses the phrase “shall be considered unsuitable” as shorthand for “shall be considered unsuitable for all or certain stipulated methods of coal mining involving surface coal mining operations, as defined in § 3400.0-5(mm) of this title. [44 FR 42638, July 19, 1979, as amended at 47 FR 33148, July 30, 1982] § 3461.1 Underground mining exemption from criteria. (a) Federal lands with coal deposits that would be mined by underground mining methods shall not be assessed as unsuitable where there would be no surface coal mining operations, as defined in § 3400.0-5 of this title, on any lease, if issued. (b) Where underground mining will include surface operations and surface impacts on Federal lands to which a criterion applies, the lands shall be assessed as unsuitable unless the surface management agency finds that a relevant exception or exemption applies. [44 FR 42638, July 19, 1979, as amended at 47 FR 33149, July 30, 1982. Redesignated at 52 FR 46473, Dec. 8, 1987] § 3461.2 Unsuitability assessment procedures. § 3461.2-1 Assessment and land use planning. (a)(1) Each of the unsuitability criteria shall be applied to all coal lands with development potential identified in the comprehensive land use plan or land use analysis. For areas where 1 or more unsuitability conditions are found and for which the authorized officer of the surface management agency could otherwise regard coal mining as a likely use, the exceptions and exemptions for each criterion may be applied. (2) Public comments on the application of the unsuitability criteria shall be solicited by a notice published in the Federal Register. (3) The authorized officer of the surface management agency shall describe in the comprehensive land use plan or land use analysis the results of the application of each unsuitability criterion, exception and exemption. The authorized officer of the surface management agency shall state in the plan or analysis those areas which could be leased only subject to conditions or stipulations to conform to the application of the criteria or exceptions. Such areas may ultimately be leased provided that these conditions or stipulations are contained in the lease. (b)(1) The authorized officer shall make his/her assessment on the best available data that can be obtained given the time and resources available to prepare the plan. The comprehensive land use plan or land use analysis shall include an indication of the adequacy and reliability of the data involved. Where either a criterion or exception (when under paragraph (a) of this section the authorized officer decides that application of an exception is appropriate) cannot be applied during the land use planning process because of inadequate or unreliable data, the plan or analysis shall discuss the reasons therefor and disclose when the data needed to make an assessment with reasonable certainty would be generated. It the case of Criterion 19, application shall be made before approval of the mining permit. In the case of other deferred criteria, application shall be made prior to finalizing the environmental analysis for the area being studied for coal leasing. The authorized officer shall make every effort within the time and resources available to collect adequate and reliable data which would permit the application of Criterion 19 in the land use or activity planning process. When those data are obtained, the authorized officer shall make public his/her assessment on the application of the criterion or, if appropriate, the exception and the reasons therefor and allow opportunity for public comment on the adequacy of the application as required by paragraph (a)(2) of this section. (2) No lease tract shall be analyzed in a final regional lease sale environmental impact statement prepared under § 3420.4-5 of this title without significant data material to the application to the tract of each criterion described in § 3461.1 of this title, except, where necessary, criterion 19. If the data are lacking for the application of a criterion or exception to only a portion of the tract, and if the authorized officer determines that it is likely that stipulations in the lease or permit to conduct surface coal mining operations could avoid any problems which may result from subsequent application of the criterion or exception, such tract may be included and analyzed in the regional lease sale environmental impact statement. (c) Any unsuitability assessments which result either from a designation or a termination of a designation of Federal lands as unsuitable by the Office of Surface Mining Reclamation and Enforcement, or from changes warranted by additional data acquired in the activity planning process, may be made without formally revising or amending the comprehensive land use plan or analysis. [44 FR 42638, July 19, 1979, as amended at 47 FR 33149, July 30, 1982; 51 FR 18888, May 23, 1986. Redesignated and amended at 52 FR 46473, Dec. 8, 1987] § 3461.2-2 Consultation on unsuitability assessments. (a) Prior to adopting a comprehensive land use plan or land use analysis which assesses Federal lands as unsuitable for coal mining, the Secretary or other surface management agency shall complete the consultation set out in §§ 3420.1-6 and 3420.1-7 of this title. (b) When consultation or concurrence is required in the application of any criterion or exception in § 3461.1 of this title, the request for advice or concurrence, and the reply thereto, shall be in writing. Unless another period is provided by law, the authorized officer shall specify that the requested advice, concurrence or nonconcurrence be made within 30 days. (c) When the authorized officer does not receive a response either to a request for concurrence which is required by this subpart but not by law, or to consultation within the specified time, he or she may proceed as though concurrence had been given or consultation had occurred. [44 FR 42638, July 19, 1979, as amended at 47 FR 33149, July 30, 1982. Redesignated at 52 FR 46473, Dec. 8, 1987] § 3461.3 Relationship of leasing to unsuitability assessment. § 3461.3-1 Application of criteria on unleased lands. (a) The unsuitability criteria shall only be applied, prior to lease issuance, to all lands leased after July 19, 1979. (b) The unsuitability criteria shall be initially applied either: (1) During land use planning or the environmental assessment conducted for a specific lease application; or (2) During land use planning under the provisions of § 3420.1-4 of this title. [47 FR 33149, July 30, 1982. Redesignated at 52 FR 46473, Dec. 8, 1987] § 3461.3-2 Application of criteria on leased lands. The unsuitability criteria shall not be applied to leased lands. [47 FR 33149, July 30, 1982. Redesignated at 52 FR 46473, Dec. 8, 1987] § 3461.4 Exploration. (a) Assessment of any area as unsuitable for all or certain stipulated methods of coal mining operations pursuant to section 522 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1272) and the regulations of this subpart does not prohibit exploration of such area under subpart 3410 and Part 3480 of this title. (b) An application for an exploration license on any lands assessed as unsuitable for all or certain stipulated methods of coal mining shall be reviewed by the Bureau of Land Management to ensure that exploration does not harm any value for which the area has been assessed as unsuitable. [44 FR 42638, July 19, 1979. Redesignated and amended at 47 FR 33149, July 30, 1982; 50 FR 8627, Mar. 4, 1985. Further redesignated at 52 FR 46473, Dec. 8, 1987] § 3461.5 Criteria for assessing lands unsuitable for all or certain stipulated methods of coal mining. (a)(1) Criterion Number 1. (2) Exceptions. (ii) A lease may be issued within the Custer National Forest with the consent of the Department of Agriculture as long as no surface coal mining operations are permitted. (3) Exemptions. (b)(1) Criterion Number 2. (2) Exceptions. (i) All or certain types of coal development (e.g., underground mining) will not interfere with the purpose of the right-of-way or easement; or (ii) The right-of-way or easement was granted for mining purposes; or (iii) The right-of-way or easement was issued for a purpose for which it is not being used; or (iv) The parties involved in the right-of-way or easement agree, in writing, to leasing; or (v) It is impractical to exclude such areas due to the location of coal and method of mining and such areas or uses can be protected through appropriate stipulations. (3) Exemptions. (c)(1) Criterion Number 3. (2) Exceptions. (i) Used as mine access roads or haulage roads that join the right-of-way for a public road; (ii) For which the Office of Surface Mining Reclamation and Enforcement has issued a permit to have public roads relocated; (iii) If, after public notice and opportunity for public hearing in the locality, a written finding is made by the authorized officer that the interests of the public and the landowners affected by mining within 100 feet of a public road will be protected. (iv) For which owners of occupied dwellings have given written permission to mine within 300 feet of their buildings. (3) Exemptions. (d)(1) Criterion Number 4. (2) Exemption. (e)(1) Criterion Number 5. (2) Exception. (3) Exemptions. (f)(1) Criterion Number 6. (2) Exemptions. (g)(1) Criterion Number 7. (2) Exceptions. (3) Exemptions. (h)(1) Criterion Number 8. (2) Exceptions. (i) The use of appropriate stipulated mining technology will result in no significant adverse impact to the area or site; or (ii) The mining of the coal resource under appropriate stipulations will enhance information recovery (e.g., paleontological sites). (3) Exemptions. (i) (1) Criterion Number 9. (2) Exception. (3) Exemptions. (j)(1) Criterion Number 10. (2) Exception. (3) Exemptions. (k)(1) Criterion Number 11. (2) Exceptions. (i) It can be conditioned in such a way, either in manner or period of operation, that eagles will not be disturbed during breeding season; or (ii) The surface management agency, with the concurrence of the Fish and Wildlife Service, determines that the golden eagle nest(s) will be moved. (iii) Buffer zones may be decreased if the surface management agency determines that the active eagle nests will not be adversely affected. (3) Exemptions. (l)(1) Criterion Number 12. (2) Exception. (3) Exemptions. (m)(1) Criterion Number 13. (2) Exception. (3) Exemptions. (n)(1) Criterion Number 14. (2) Exception. (3) Exemption. (o)(1) Criteron Number 15. (i) Active dancing and strutting grounds for sage grouse, sharp-tailed grouse, and prairie chicken; (ii) Winter ranges crucial for deer, antelope, and elk; (iii) Migration corridor for elk; and (iv) Extremes of range for plant species; and A lease may be issued if, after consultation with the state, the surface management agency determines that all or certain stipulated methods of coal mining will not have a significant long-term impact on the species being protected. (2) Exemptions. (p)(1) Criterion Number 16. (2) Exemptions. (q)(1) Criterion Number 17. (2) Exception. (3) Exemptions. (r)(1) Criterion Number 18. 1/4 (2) Exception. (3) Exemptions. (s)(1) Criterion Number 19. (2) Exemptions. (t)(1) Criterion Number 20. (2) Exceptions. (i) Such criterion is adopted by the Secretary less than 6 months prior to the publication of the draft comprehensive land use plan or land use analysis, plan, or supplement to a comprehensive land use plan, for the area in which such land is included, or (ii) After consultation with the state or affected Indian tribe, the surface management agency determines that all or certain stipulated methods of coal mining will not adversely affect the value which the criterion would protect. (3) Exemptions. [44 FR 42638, July 19, 1979, as amended at 47 FR 33148, July 30, 1982; 48 FR 54820, Dec. 7, 1983. Redesignated and amended at 52 FR 46473, Dec. 8 1987] Subpart 3465—Surface Management and Protection § 3465.0-1 Purpose. This subpart establishes rules for the management and protection of the surface of leased Federal lands when coal deposits are developed. § 3465.0-3 Authority. These regulations are issued under the authority of the statutes listed in § 3400.0-3 of this title. § 3465.0-7 Applicability. This subpart applies to leases and licenses to mine issued by the Bureau of Land Management for the development of Federal coal. § 3465.1 Use of surface. (a) The operator shall use only that part of the surface area included in his lease or license to mine that has been included in an approved resource recovery and protection plan and mining permit (43 CFR 3482.1(b) and 30 CFR part 741). (b) Separate leases, permits, or rights-of-way under the appropriate provisions in title 43 of the Code of Federal Regulations are required for the installation of power generation plants or commercial or industrial facilities on the lands in the lease or license to mine or for the use of mineral materials or timber from the land in the lease or license to mine. (c) Other land uses under other authorities may be allowed on an area in a lease or license to mine provided there is no unreasonable conflict and that neither the mining operation nor the other use is jeopardized by the presence of the other. [44 FR 42638, July 19, 1979, as amended at 47 FR 33149, July 30, 1982; 50 FR 8627, Mar. 4, 1985] § 3465.2 Inspections and noncompliance. § 3465.2-1 Inspections. The authorized officer or his/her authorized representative shall have the right to enter lands under a lease or license to mine to inspect without advance notice or a search warrant, upon presentation of appropriate credentials, to determine whether the activities and conditions are in compliance with the applicable laws, regulations, notices and orders, terms and conditions of leases, licenses to mine or permits, and the requirements of the approved mining plan. [44 FR 42638, July 19, 1979. Redesignated and amended at 47 FR 33149, July 30, 1982; 50 FR 8627, Mar. 4, 1985] § 3465.2-2 Discovery of noncompliance. (a) Upon discovery of activities or conditions that are not in compliance with the terms of a lease or license to mine, or with an approved permit (30 CFR part 741), but that do not pose a serious and imminent danger to the public or to resources and environmental quality, the authorized officer shall refer the matter to the Surface Mining Officer for remedial action, or take remedial action on matters of exploration outside the permit area. (b) Upon discovery of activities or conditions that are not in compliance with the terms of a lease, license to mine, or with an approved permit and that do pose a serious and imminent danger to the health and safety of the public or to resources and environmental quality, the authorized officer may order the immediate cessation of the activities or conditions provided that the Surface Mining Officer is immediately informed of the issuance of any such emergency cessation order. [44 FR 42638, July 19, 1979. Redesignated at 47 FR 33149, July 30, 1982; 50 FR 8627, Mar. 4, 1985] § 3465.2-3 Failure of lessee or holder of license to mine to act. Failure of a lessee or the holder of a license to mine to comply with an immediate cessation order issued under § 3465.3-2(b) or with a written notice of noncompliance issued by the Surface Mining Officer in accordance with part 3480 of this title or 30 CFR Chapter VII, Subchapter D, or by the authorized officer in accordance with part 3480 of this title, shall be grounds for suspension of the permit and may be grounds for cancellation of the license to mine, or in accordance with subpart 3452 of this title, the lease. [44 FR 42638, July 19, 1979. Redesignated and amended at 47 FR 33149, July 30, 1982; 50 FR 8627, Mar. 4, 1985]