[Federal Register Volume 73, Number 120 (Friday, June 20, 2008)]
[Proposed Rules]
[Pages 35214-35267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13310]
[[Page 35213]]
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Part II
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 700, 724, et al.
Abandoned Mine Land Program; Proposed Rule
Federal Register / Vol. 73, No. 120 / Friday, June 20, 2008 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 700, 724, 773, 785, 816, 817, 845, 846, 870, 872, 873,
874, 875, 876, 879, 880, 882, 884, 885, 886, and 887
RIN 1029-AC56
[Docket ID: OSM-2008-0003]
Abandoned Mine Land Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are proposing regulation changes to the Abandoned Mine
Reclamation Fund (Fund) and the Abandoned Mine Land (AML) program. This
proposed rule revises our regulations to be consistent with the Tax
Relief and Health Care Act of 2006, Pub. L. 109-432, signed into law on
December 20, 2006, which included the Surface Mining Control and
Reclamation Act Amendments of 2006 (the 2006 amendments). The proposed
rule reflects the extension of our statutory authority to collect
reclamation fees for an additional fourteen years and to reduce the fee
rates. This proposal also updates the regulations in light of the
statutory amendments that change the activities State and Tribal
reclamation programs may perform under the AML program, funding for
reclamation grants to States and Indian tribes, and transfers to the
United Mine Workers of America (UMWA) Combined Benefit Fund (CBF), the
UMWA 1992 Benefit Plan, and the UMWA Multiemployer Health Benefit Plan
(1993 Benefit Plan). Finally, our proposed rule extends incentives
reauthorized by the 2006 amendments pertaining to the remining of
certain lands and water adversely affected by past mining.
DATES: Comments on the proposed rule must be received on or before
August 19, 2008, in order to ensure our consideration. We will accept
requests to speak at a public hearing until 5 p.m., Eastern Time on
July 11, 2008.
ADDRESSES: You may submit comments by any of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
The rule is listed under the agency name ``OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT.'' The proposed rule has been assigned
Docket ID: OSM-2008-0003.
If you would like to submit comments through the Federal e-
Rulemaking Portal, go to www.regulations.gov and do the following.
Click on the ``Advanced Docket Search'' button on the right side of the
screen. Type in the Docket ID OSM-2008-0003 and click the ``Submit''
button at the bottom of the page. The next screen will display the
Docket Search Results for the rulemaking. If you click on OSM-2008-
0003, you can view the proposed rule and submit a comment. You can also
view supporting material and any comments submitted by others.
Mail/Hand-Delivery/Courier to: Office of Surface Mining
Reclamation and Enforcement, Administrative Record, Room 252-SIB, 1951
Constitution Avenue, NW., Washington, DC 20240. Please include the rule
Docket ID (OSM-2008-0003) with your comment.
We cannot ensure that comments received after the close of the
comment period (see DATES) will be included in the docket for the
rulemaking and considered. Comments sent to an address other than those
listed above (see ADDRESSES) will not be included in the docket for the
rulemaking.
For detailed instructions on submitting comments and additional
information on the rulemaking process, see ``IV. Public Comment
Procedures'' in the SUPPLEMENTARY INFORMATION section of this document.
If you wish to comment on the information collection aspects of
this proposed rule, you may submit your comments to the Office of
Management and Budget, Office of Information and Regulatory Affairs,
Attention: Interior Desk Officer, via e-mail to [email protected], or via facsimile to 202-365-6566.
FOR FURTHER INFORMATION CONTACT: Danny Lytton, Chief, Reclamation
Support Division, 1951 Constitution Ave., NW., Washington, DC 20240;
Telephone: 202-208-2788; E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Reclamation Fee and the Abandoned Mine Land
Program
II. Outreach, Guidance, and Comments
III. Description of the Proposed Rule
IV. Public Comment Procedures
V. Procedural Determinations
I. Background on the Reclamation Fee and the Abandoned Mine Land
Program
A. How did the reclamation fee work before the 2006 amendments?
Title IV of the Surface Mining Control and Reclamation Act of 1977
(SMCRA) created an AML reclamation program funded by a reclamation fee
assessed on each ton of coal produced. The fees collected have been
placed in the Fund. We, either directly or through grants to States and
Indian tribes with approved AML reclamation plans under SMCRA, have
been using money from the Fund primarily to reclaim lands and waters
adversely impacted by mining conducted before the enactment of SMCRA
and to mitigate the adverse impacts of mining on individuals and
communities. Also, since Fiscal Year (FY) 1996, an amount equal to the
interest earned by and paid to the Fund has been available for direct
transfer to the UMWA CBF to defray the cost of providing health care
benefits for certain retired coal miners and their dependents. See
Energy Policy Act of 1992, Pub. L. 102-486, 106 Stat. 2776, 3056, Sec.
19143(b)(2) of Title XIX.
Section 402(a) of SMCRA fixed the reclamation fee for the period
before September 30, 2007, at 35 cents per ton (or 10 percent of the
value of the coal, whichever is less) for surface-mined coal other than
lignite, 15 cents per ton (or 10 percent of the value of the coal,
whichever is less) for coal from underground mines, and 10 cents per
ton (or 2 percent of the value of the coal, whichever is less) for
lignite. As originally enacted, section 402(b) of SMCRA authorized
collection of reclamation fees for 15 years following the date of
enactment (August 3, 1977); thus, our fee collection authority would
have expired August 3, 1992. However, Congress extended the fees and
our fee collection authority through September 30, 1995, in the Omnibus
Budget Reconciliation Act of 1990 (Pub. L. 101-508, 104 Stat. 1388,
Sec. 6003(a)). The Energy Policy Act of 1992 (Pub. L. 102-486, 106
Stat. 2776, 3056, Sec. 19143(b)(1) of Title XIX), extended the fees
through September 30, 2004. A series of short interim extensions in
appropriations and other acts extended the fees through September 30,
2007.
B. How did the AML program work before the 2006 amendments?
SMCRA established the AML reclamation program in response to
concern over extensive environmental damage caused by past coal mining
activities. Before the 2006 amendments, the AML program reclaimed
eligible lands and waters using money appropriated by Congress from the
Fund, which came from the reclamation fees collected from the coal
mining industry. Eligible lands and waters were those which were mined
for coal or affected by coal mining or coal processing, were abandoned
or left inadequately reclaimed prior to the
[[Page 35215]]
enactment of SMCRA on August 3, 1977, and for which there was no
continuing reclamation responsibility under State or other Federal
laws.
SMCRA established a priority system for reclaiming coal problems.
Before the 2006 amendments, the AML program had five priority levels,
but reclamation was focused on eligible lands and waters that reflected
the top three priorities. The first priority was ``the protection of
public health, safety, general welfare, and property from extreme
danger of adverse effects of coal mining practices.'' 30 U.S.C.
1233(a)(1) (unamended). The second priority was ``the protection of
public health, safety, and general welfare from adverse effects of coal
mining practices.'' 30 U.S.C. 1233(a)(2) (unamended). The third
priority was ``the restoration of land and water resources and the
environment previously degraded by adverse effects of coal mining
practices * * *.'' 30 U.S.C. 1233(a)(3) (unamended).
As the law required, the Fund was divided into State or Tribal and
Federal shares. Each State or Indian tribe with a Federally approved
reclamation plan was entitled to receive 50 percent of the reclamation
fees collected annually from coal operations conducted within its
borders. The ``Secretary's share'' of the Fund consisted of the
remaining 50 percent of the reclamation fees collected annually and all
other receipts to the Fund. The Secretary's share was allocated into
three shares as required by the 1990 amendments to SMCRA. See Omnibus
Budget Reconciliation Act of 1990, Pub. L. 101-508, 104 Stat. 1388,
Sec. 6004. First, we allocated 40% of the Secretary's share to
``historic coal'' funds to increase reclamation grants to States and
Indian tribes for coal reclamation. However, all the funds which were
allocated may not have been appropriated. Second, we allocated 20% to
the Rural Abandoned Mine Program (RAMP), operated by the Department of
Agriculture, which was authorized to receive AML funding but has not
been appropriated AML funds since the mid 1990's. Last, SMCRA required
us to allocate 40% to ``Federal expense'' funds to provide grants to
States for emergency programs that abate sudden dangers to public
health or safety needing immediate attention, to increase reclamation
grants in order to provide a minimum level of funding to State and
Indian tribal programs with unreclaimed coal sites, to conduct
reclamation of emergency and high-priority coal sites in areas not
covered by State and Indian tribal programs, and to fund our operations
that administer Title IV of SMCRA.
States with an approved State coal regulatory program under Title V
of SMCRA and with eligible coal mined lands may develop a State program
for reclamation of abandoned mines. The Secretary may approve the State
reclamation program and fund it. At the time the 2006 amendments were
enacted, 23 States received annual AML grants to operate their approved
reclamation programs. Three Indian tribes (the Navajo, Hopi and Crow
Indian tribes) without approved regulatory programs have received
grants for their approved reclamation programs as authorized by section
405(k) of SMCRA.
Before the 2006 amendments, only a State or Indian tribe was
authorized to certify that it had addressed all known coal problems
within the State or on Indian lands within its jurisdiction. These
certified States and Indian tribes were able to use AML grant funds to
abate the impacts of mineral mining and processing. SMCRA established
the following priorities for the certified programs:
(1) The protection of public health, safety, general welfare, and
property from extreme danger of adverse effects from mineral mining and
processing practices.
(2) The protection of public health, safety, and general welfare
from adverse effects of mineral mining and processing practices.
(3) The restoration of land and water resources and the environment
previously degraded by the adverse effects of mineral mining and
processing practices.
30 U.S.C. 1240a(c). Certified States and Indian tribes could also use
these funds to improve or construct utilities adversely affected by
mineral mining and to construct public facilities in communities
impacted by coal or mineral mining or processing. 30 U.S.C. 1240a(e).
Certified States and Indian tribes could also use these funds for
activities or construction of specific public facilities related to the
coal or minerals industry in areas impacted by coal or minerals
development. 30 U.S.C. 1240a(f).
In contrast, uncertified States and Indian tribes could use AML
grant funds on noncoal projects only to abate extreme dangers to public
health, safety, general welfare, and property that arose from the
adverse effects of mineral mining and processing and only at the
request of the Governor or the governing body of the Indian tribe. 30
U.S.C. 1239.
The minimum program funding level provided additional grant funding
to uncertified States and Indian tribes so that each reclamation
program would receive enough annual AML funding to support a viable
program. Before the 2006 amendments, SMCRA set the minimum program
level at $2 million. 30 U.S.C. 1232(g)(8) (as amended by the Omnibus
Budget Reconciliation Act of 1990, Pub. L. 101-508, Sec. 6004).
However, appropriations have generally only funded the minimum program
level at $1.5 million. See, e.g., Department of the Interior,
Environment, and Related Agencies Appropriations Act, 2006, Pub. L.
109-54, 119 Stat. 513 (2005) (``[G]rants to minimum program States will
be $1,500,000 per State in fiscal year 2006.''). The Federal Fiscal
Year runs from October 1 through September 30, so that FY 2006 is
October 1, 2005, through September 30, 2006. SMCRA did not mandate a
particular share of the Fund be used to support the minimum program,
and we chose to use moneys from the Federal expenses share of the Fund
for this purpose.
Before the 2006 amendments, States and Indian tribes were allowed
to deposit up to 10 percent of their State or Tribal share and 10
percent of their historic coal share funds into set-aside accounts for
either future coal reclamation or acid mine drainage treatment programs
or both. 30 U.S.C. 1232(g)(6) (as amended by the Omnibus Budget
Reconciliation Act of 1990, Pub. L. 101-508, Sec. 6004). In addition,
uncertified States and Indian tribes were allowed to spend up to 30% of
their funds on water supply projects that protect, repair, replace,
construct, or enhance water supply facilities adversely affected by
coal mining practices. 30 U.S.C. 1233(b)(1) (as amended by the Omnibus
Budget Reconciliation Act of 1990, Pub. L. 101-508, Sec. 6005).
C. How did the 2006 amendments change these programs?
The Surface Mining Control and Reclamation Act Amendments of 2006
were signed into law as part of the Tax Relief and Health Care Act of
2006, on December 20, 2006. Pub. L. 109-432. The 2006 amendments revise
Title IV of SMCRA to make significant changes to the reclamation fee
and the AML program. The changes are summarized as follows:
OSM's reclamation fee collection authority is extended
through September 30, 2021. The statutory fee rates are reduced by 10
percent from the current levels for the period from October 1, 2007,
through September 30, 2012. The fee rates are reduced by an additional
10 percent from the original levels for the period from October 1,
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2012, through September 30, 2021. 30 U.S.C. 1232(a).
The Fund allocation formula is changed. Beginning October
1, 2007, certified States will no longer be eligible to receive State
share funds. 30 U.S.C. 1231(f)(3)(B). Instead, amounts which would have
been distributed as State share for fee collections for certified
States will be distributed as historic coal funds. 30 U.S.C.
1240a(h)(4). The RAMP share is eliminated. See 30 U.S.C. 1232(g). The
historic coal allocation is further increased by the amount that
previously was allocated to RAMP. 30 U.S.C. 1232(g)(5).
Distributions of annual fee collections are made outside
of the appropriations process. Once fully phased in, most fee
collections will go to States and Indian tribes in annual mandatory
distributions. Mandatory distributions from the Fund for uncertified
States and Indian tribes include the State or Tribal share of all fees
collected for coal produced the previous fiscal year, historic coal
funds allocated from previous fiscal year production and also
transferred from collections for certified States and Indian tribes for
the previous fiscal year, and minimum program make up funding. 30
U.S.C. 1232(g)(1), (g)(5), and (g)(8)(A). These mandatory distributions
are phased in at 50 percent for FY 2008 and FY 2009, and 75 percent for
FY 2010 and FY 2011; full funding will be reached in FY 2012. 30 U.S.C.
1231(f)(5). After the end of the fee collection period, mandatory
distributions of money from the Fund for FY 2023 and subsequent years
will continue from balances in the Fund at the same level as FY 2022 to
the extent funds are available. 30 U.S.C. 1231(f)(2)(B).
Certified States and Indian tribes will receive mandatory
distributions of Treasury funds in lieu of the State and Tribal share
they will no longer be eligible to receive. 30 U.S.C. 1240a(h)(2). This
mandatory distribution will be phased in at 25 percent for the first
year, 50 percent for the second year, 75 percent for the third year,
and fully distributed in the fourth year and thereafter. 30 U.S.C.
1240a(h)(3)(B). These funds may be used to address coal problems that
arise after certification and for other purposes.
All States and Indian tribes with approved reclamation
plans are paid amounts equal to their unappropriated prior balance of
State and Tribal share funds from fees collected on coal produced
before October 1, 2007. 30 U.S.C. 1240a(h)(1)(A)(i). Payments will be
made in seven equal annual installments beginning in FY 2008. 30 U.S.C.
1240a(h)(1)(C). Payments are mandatory distributions from Treasury
funds. These payments must be used by uncertified States and Indian
tribes for the purposes of section 403 of SMCRA. 30 U.S.C.
1240a(h)(1)(D)(ii). These payments must be used by certified States and
Indian tribes for purposes established by the State legislature or
Tribal council, with priority given for addressing the impacts of
mineral development. 30 U.S.C. 1240a(h)(1)(D)(i). Amounts in the Fund
previously designated as State or Tribal share equal to the
unappropriated balance payments will be transferred to historic coal
funds as payments are made and used for reclamation grants in FY 2023
and thereafter. 30 U.S.C. 1240a(h)(4).
The minimum funding level for each State or Indian tribe
with an approved reclamation plan and unfunded high priority coal
reclamation problems is increased to $3 million. 30 U.S.C.
1232(g)(8)(A). This funding is also a mandatory distribution. However,
like the rest of the distributions from the Fund, these distributions
will be phased in at 50 percent for FY 2008 and FY 2009, and 75 percent
for FY 2010 and FY 2011; full funding will be reached in FY 2012. 30
U.S.C. 1231(f)(5).
The States of Tennessee and Missouri are each authorized
to receive minimum program make up funding for their approved State
reclamation programs even if they do not meet other requirements, such
as having an approved coal regulatory program. 30 U.S.C. 1232(g)(8)(B).
Other than for minimum program make up funding,
expenditures from the Secretary's share must be appropriated by
Congress. 30 U.S.C. 1231(d)(a). These uses for Federal expense funding
include the emergency reclamation program, Federal reclamation
programs, the Watershed Cooperative Agreement Program, and our AML
administrative expenses.
The limit on set aside funding for acid mine drainage
(AMD) treatment programs is increased from 10 percent to 30 percent of
State or Tribal share funds and historic coal funds. 30 U.S.C.
1232(g)(6). In addition, States and Indian tribes are no longer
required to get our approval for AMD plans. Id. Set aside funding for
future coal reclamation is no longer authorized. Id. The previous cap
of 30 percent for water supply restoration projects is eliminated. 30
U.S.C. 1233(b).
There are only three AML coal reclamation priorities
because the previous priorities 4 and 5 have been removed. 30 U.S.C.
1233(a). Also, ``general welfare'' is eliminated as a component of
priorities 1 and 2. 30 U.S.C. 1233(a)(1) and (a)(2). OSM must now
ensure strict compliance with the coal priorities until the State or
Indian tribe is certified. 30 U.S.C. 1232(g)(2). States and Indian
tribes may initiate Priority 3 reclamation projects before completing
all Priority 1 and 2 projects only if the Priority 3 reclamation is
performed in conjunction with a Priority 1 or 2 project. 30 U.S.C.
1232(g)(7). Priority 3 lands and waters adjacent to past, present, and
future Priority 1 and 2 project sites may be reclassified to Priority 1
or 2. 30 U.S.C. 1233(a)(1)(B)(ii) and 1233(a)(2)(B)(ii).
The previous prohibition on filing a lien against the
beneficiary of an AML reclamation project if the person owned the
surface before May 2, 1977, is eliminated. 30 U.S.C. 1238(a). The
automatic lien waiver is now extended to all landowners who did not
consent to, participate in, or exercise control over the mining
operations that necessitated the reclamation.
We must approve amendments to the AML inventory system. 30
U.S.C. 1233(c).
We may certify that a State or Indian tribe has completed
coal reclamation without prior request from the State or Indian tribe.
30 U.S.C. 1240a(a)(2).
There is a cap of $490 million on total annual Treasury
funding under this legislation. 30 U.S.C. 1232(i)(3)(A). This cap
limits payments to States and Indian tribes under 30 U.S.C. 1240a(h)
and the payments to the CBF, 1992 Benefit Plan, and the 1993 Benefit
Plan, collectively known as the ``UMWA health care plans,'' under 30
U.S.C. 1232(h) and 1232(i)(1).
Subject to certain limitations, to the extent payments
from premiums and other sources do not meet the financial needs of the
UMWA health care plans, all estimated Fund interest earnings for each
fiscal year must be transferred to these plans. 30 U.S.C. 1232(h). The
unappropriated balance of the RAMP allocation as of December 20, 2006,
is also available for transfer to the UMWA health care plans. 30 U.S.C.
1232(h)(4)(B). These additional transfers to the CBF began in FY 2007,
while transfers to the 1992 and 1993 Benefit Plans began in FY 2008. 30
U.S.C. Sec. 1232(h)(1). Transfers to the 1992 and 1993 Benefit Plans
are phased in, with transfers in FY 2008-2010 limited to 25%, 50%, and
75% respectively, of the amounts that would otherwise be transferred.
30 U.S.C. 1232(h)(5)(C). If necessary to meet their financial needs,
the UMWA health care plans are also entitled to payments from
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unappropriated amounts in the Treasury, subject to the overall $490
million cap on all transfers from the Treasury under the 2006
amendments. 30 U.S.C. 1232(i)(1)(B) and (i)(3)(A). All interest earned
by the Fund before December 20, 2006, and not previously transferred to
the CBF is set aside in a reserve fund that will be used to make
payments to the UMWA health care plans in the event that their
financial needs exceed the annual cap. 30 U.S.C. 1232(h)(4)(A).
The 2006 amendments removed the expiration date for
remining incentives initially authorized on October 24, 1992, when
SMCRA was amended to include a new section 510(e) that created an
exemption from the section 510(c) permit-block sanction for remining
operations and a new section 515(b)(20)(B) that provided incentives for
certain eligible remining operations in the form of reduced
revegetation responsibility periods (2 years in the East and 5 years in
the West). Energy Policy Act of 1992, Pub. L. 102-486, Sec. 2503.
Until the 2006 amendments, those remining incentives had a statutorily
defined expiration date of September 20, 2004, under 510(e) of SMCRA.
Id.
The 2006 amendments authorized us to develop regulations
to promote remining of eligible land under section 404 in a manner that
leverages the use of amounts from the Fund to achieve more reclamation.
30 U.S.C. 1244
Upon our approval, an Indian tribe may develop ``a tribal
program under section 503 [of SMCRA] regulating in whole or in part
surface coal mining and reclamation operations on reservation land
under the jurisdiction of the Indian tribe using the procedures of
section 504(e).'' 30 U.S.C. 1300(j).
II. Outreach, Guidance, and Comments
Since the enactment of the 2006 amendments, we have notified
potentially affected parties of the statutory amendments and solicited
comments on issues related to the 2006 amendments. In January and
September 2007, we notified all fee payers in writing of the fee rate
changes. In January, February, and May 2007, we met with
representatives of States and Indian tribes with approved reclamation
programs at meetings hosted by the Interstate Mining Compact Commission
(IMCC) and the National Association of Abandoned Mine Land Programs
(NAAMLP) to notify the States and Indian tribes of the 2006 amendments'
changes to SMCRA and to seek their input on the amendments. The IMCC
and NAAMLP subsequently submitted joint written comments on specific
provisions of the amendments. The IMCC and the NAAMLP, among others,
raised the following major issues in their written comments.
First, the commenters proposed that we allow individual States and
Indian tribes to choose between receiving Treasury moneys under section
411(h) through a traditional grant or by a ``direct payment
mechanism.'' The commenters recognized that we might prefer to use
grants to pay the section 411(h) funds rather than some type of
``direct distribution of cash from the Treasury.'' However, the
commenters noted that SMCRA does not directly address this issue and
stated that the ``Secretary has the discretion to design a payment
mechanism that meets the needs of the States and tribes.'' They urged
us to develop some type of ``direct payment mechanism'' similar to that
used to pay mineral royalties to States under the Mineral Leasing Act.
The commenters stated that the State legislatures and Tribal councils
will ensure States and Indian tribes use the funds legally and
appropriately under SMCRA and State and Tribal contracting law and that
Federal audits will scrutinize project selection and expenditures.
Second, the commenters expressed concern that States and Indian
tribes at the minimum program funding level would receive less than $3
million until FY 2012. The commenters pointed out that uncertified
States that receive funding at the ``minimum program'' level often have
serious Priority 1 and 2 abandoned coal mine problems. They also
discussed the fact that SMCRA historically guaranteed States and Indian
tribes at least $2 million, but that this minimum funding level was
rarely, if ever, met. The IMCC and NAAMLP asserted that the $3 million
floor amount in section 402(g)(8)(A) only mandates that we cannot spend
more than $3 million from the Federal expense funds. In addition, they
contend that section 401(f)(5)(B) of SMCRA requires us to phase in only
those Federal expense funds that we might provide in excess of the $3
million floor level of funding provided for in section 402(g)(8)(A).
Third, the commenters specifically objected to any limitations that
would prohibit uncertified States and Indian tribes from using prior
balance replacement funds from Treasury under section 411(h)(1) to
abate high priority noncoal hazards or for placement in an AMD set
aside account. The commenters expressed concern that requiring
uncertified States and Indian tribes to use prior balance replacement
funds for coal reclamation only would prevent those States and Indian
tribes from using the moneys to reclaim equally or even more dangerous
hazards associated with noncoal mining and hinder the treatment of AMD.
In addition, they pointed out that the prior balance replacement funds
are received in place of State or Tribal share funds from reclamation
fees previously collected in each State and on Indian lands that
Congress never appropriated for distribution to the respective States
and Indian tribes. Because uncertified States and Indian tribes are
permitted to use section 402(g)(1) funds for noncoal reclamation and
for AMD set-aside funds, the commenters maintain that they should be
allowed to use the prior balance replacement funds for the same
purposes.
The IMCC and NAAMLP also raised many other issues in their
comments. They suggested that the first certified in lieu payments
should be for FY 2009. They suggested that the terms ``adjacent'' and
``in conjunction'' should be applied to AML Priority decisions using
simple definitions without additional monetary or timing criteria. They
urged OSM to make fund distributions as early in the FY as possible.
We considered all the comments we received in developing this
proposed rule.
In order to facilitate distribution of funds for FY 2008, as
required in the 2006 amendments, the Director of OSM issued written
guidance in December, 2007. To the extent feasible, we have restated
and expanded upon the content of that guidance in this proposed rule.
We intend to make that December 2007 written guidance part of the
docket for this rulemaking to be available for public inspection.
The December 2007 written guidance was based in part on a December
2007 memorandum opinion (M opinion), from the Department of the
Interior, Office of the Solicitor, which analyzed three issues related
to AML funding. See Funding to States and Indian Tribes Under the
Surface Mining Control and Reclamation Act of 1977, as Amended by the
Tax Relief and Health Care Act of 2006, M-37014 (December 5, 2007). In
this M-opinion, the Office of the Solicitor advised us that:
We are required to use grants to pay prior balance
replacement funds and certified in lieu funds to eligible States and
Indian tribes under sections 411(h)(1) and (h)(2) of SMCRA;
Uncertified States and Indian tribes may not use prior
balance replacement funds that they receive under section 411(h)(1) of
SMCRA for noncoal
[[Page 35218]]
reclamation and for the AMD set aside authorized by section 402(g)(6);
and
The minimum program make up funds that eligible
uncertified States and Indian tribes are entitled to receive under
section 402(g)(8)(A) of SMCRA are subject to the four year phase-in
provision of section 401(f)(5)(B).
III. Description of the Proposed Rule
This proposed rulemaking seeks to revise our regulations to be
consistent with all of the revisions to SMCRA contained in the 2006
amendments, except for those provisions relating to the remining
incentives provisions leveraging amounts from the Fund. The remining
incentives provisions that leverage amounts from the Fund are the
subject of a separate rulemaking published on May 1, 2008, at 73 FR
24120.
Generally, this rulemaking sets forth proposed standards and
procedures for the coal reclamation fee, the Fund, and the AML program.
This proposed rule includes extensive proposals for long term
operations of the amended Title IV program, including provisions of the
2006 amendments that will become effective at later dates. We are also
taking advantage of this rulemaking opportunity to propose other
changes that we believe are needed to update and clarify related Parts
of our existing regulations. Throughout this proposed rule, the terms
``money'' and ``moneys'' are interchangeable with the terms ``fund'' or
``funds,'' but not with the term ``Fund,'' as defined in proposed Sec.
700.5.
The proposed changes generally fall into three categories:
Align our existing regulations to be consistent with the
2006 amendments to SMCRA as interpreted by the M-opinion;
Use plain English to make the regulations easier to
understand where no substantive change is intended; and
Provide further guidance and clarification on
implementation of the 2006 amendments where appropriate or needed.
A detailed discussion of all of the proposed revisions follows.
Part 700--General
Definitions (Sec. 700.5)
We are proposing to revise the definitions in Sec. 700.5 in
several ways. First, we are proposing to add two new definitions
(``AML'' and ``AML inventory''). The addition of these two definitions
will improve the clarity of the proposed regulations contained in this
rulemaking.
Second, we are moving six existing definitions (``eligible lands
and water,'' ``emergency,'' ``extreme danger,'' ``left or abandoned in
either an unreclaimed or inadequately reclaimed condition,''
``project,'' and ``reclamation activity'') to Sec. 700.5 because these
terms apply to all of the regulations in Chapter VII of Title 30 of the
Code of Federal Regulations. These terms were previously codified in
Sec. 870.5, which only applies to regulations related to AML
reclamation fee collection. We are not proposing any substantive
changes to the text of the definitions of these six terms. We are,
however, correcting a mistake in the definition of eligible lands and
water. The existing definition states, in part, that ``[f]ollowing
certification of the completion of all known coal problems, eligible
lands and water for noncoal reclamation purposes are those sites that
meet the eligibility requirements specified'' in Sec. 874.14 of this
chapter. The reference to Sec. 874.14 was incorrect. The correct
reference is Sec. 875.14--Eligible lands and water subsequent to
certification. In addition, we propose to reword two definitions
(``eligible lands and water,'' and ``left or abandoned in either an
unreclaimed or inadequately reclaimed condition'') using plain English.
Third, to eliminate some redundancy between two definitions, we
combined two definitions from Sec. 870.5 (``Indian reclamation
program'' and ``State reclamation program'') into one definition in
Sec. 700.5 (``reclamation program''). The substance of the definition
did not change.
Fourth, we moved the definition of ``expended'' from Sec. 870.5 to
Sec. 700.5. In order to make the definition consistent with the entire
chapter, we removed the existing limitation that it only applies to
costs for reclamation.
Last, we are proposing to expand the definition of ``Fund'' in
Sec. 700.5. Previously, this term was defined slightly differently in
both Sec. Sec. 700.5 and 870.5. Under the proposed rule, the
definition of this term in Sec. 700.5 will be expanded to include
additional information that was contained in Sec. 870.5 (``Abandoned
Mine Reclamation Fund or Fund''). We believe this will eliminate any
confusion that may have resulted from having different terminology and
definitions to describe the same source of money in two Parts of the
regulations.
Part 724--Requirements for Permits and Permit Processing
Payment of Penalty (Sec. 724.18)
We propose to revise Sec. 724.18(d) to update the references in
that section to reflect our proposal to split existing Sec. 870.15
into separate sections within part 870 and to update information on how
to find the interest rate for late payments.
Part 773--Requirements for Permits and Permit Processing
Unanticipated Events or Conditions at Remining Sites (Sec.
773.13(a)(2))
On October 24, 1992, SMCRA was amended to include a new section
510(e) that created an exemption from the section 510(c) permit-block
sanction for remining operations. At that time section 510(e) had a
statutorily defined expiration date of September 30, 2004. Because the
2006 amendments removed the expiration date, we are revising Sec.
773.13(a)(2) to reflect continued applicability of the provision.
Part 785--Requirements for Permits for Special Categories of Mining
Lands Eligible for Remining (Sec. 785.25(c))
On October 24, 1992, SMCRA was amended to include a new section
515(b)(20)(B) that provided incentives for certain eligible remining
operations in the form of reduced revegetation responsibility periods
(2 years in the East and 5 years in the West). Those remining
incentives had a statutorily defined expiration date of September 30,
2004, under section 510(e) of SMCRA. Because the 2006 amendments
removed the expiration date, we propose to remove paragraph (c) to
reflect the continued applicability of this section.
Part 816--Permanent Program Performance Standards--Surface Mining
Activities
Revegetation: Standards for Success (Sec. 816.116)
On October 24, 1992, SMCRA was amended to include a new section
515(b)(20)(B) that provided incentives for certain eligible remining
operations in the form of reduced revegetation responsibility periods
(2 years in the East and 5 years in the West). Those remining
incentives had a statutorily defined expiration date of September 30,
2004, under section 510(e) of SMCRA. Because the 2006 amendments
removed the expiration date, we propose to revise Sec.
816.116(c)(2)(ii) and (c)(3)(ii) to reflect continued applicability of
the provisions. We also reworded this section using plain English.
[[Page 35219]]
Part 817--Permanent Program Performance Standards--Underground Mining
Activities
Revegetation: Standards for Success (Sec. 817.116)
On October 24, 1992, SMCRA was amended to include a new section
515(b)(20)(B) that provided incentives for certain eligible remining
operations in the form of reduced revegetation responsibility periods
(2 years in the East and 5 years in the West). Those remining
incentives had a statutorily defined expiration date of September 30,
2004, under section 510(e) of SMCRA. Because the 2006 amendments
removed the expiration date, we propose to revise Sec.
817.116(c)(2)(ii) and (c)(3)(ii) to reflect continued applicability of
the provisions. We also reworded this section using plain English.
Part 845--Civil Penalties
Use of Civil Penalties for Reclamation (Sec. 845.21)
We propose to revise Sec. 845.21(b)(1) to reflect our proposal to
move the definition of ``emergency'' from Sec. 870.5 to Sec. 700.5 of
this chapter.
Part 846--Individual Civil Penalties
Payment of Penalty (Sec. 846.18)
We propose to revise Sec. 846.18(d) to update the references in
that section to reflect our proposal to split existing Sec. 870.15
into separate sections within Part 870 and to update information on how
to find the interest rate for late payments.
Part 870--Abandoned Mine Reclamation Fund--Fee Collection and Coal
Production Reporting
Part 870 describes the requirements and process for you, the coal
mine operator, to report coal production and to pay the AML reclamation
fee.
Scope (Sec. 870.1)
We propose to add coal production reporting to this paragraph,
because this is a major topic of this Part, and also to change the term
``Abandoned Mine Reclamation Fund'' to ``Fund'' to be consistent with
our definition in proposed Sec. 700.5.
Definitions (Sec. 870.5)
We propose to correct a defect in the Part 870 definitions section.
The current Sec. 870.1 specifies that the scope of Part 870 is limited
to the procedures for the collection of reclamation fees, but existing
Sec. 870.5 provides that the definitions apply to Parts 870 through
888. In order to correct this issue, we propose to revise Sec. 870.5
to state that the definitions apply only to Part 870 and to move
definitions unrelated to Part 870 to the regulations where they are
used. As such, we moved 17 existing definitions out of this section. In
addition, one definition (``OSM'') was essentially a duplicate of a
preexisting definition in Sec. 700.5; thus, we deleted that term from
Sec. 870.5. Any substantive changes made to the definitions are
described in the preamble related to the section where the definitions
are moved.
As described in the preamble discussion regarding proposed
revisions to Sec. 700.5, six definitions from Sec. 870.5 that apply
to multiple Parts of the chapter were moved to Sec. 700.5 (``eligible
lands and water,'' ``emergency,'' ``extreme danger,'' ``left or
abandoned in either an unreclaimed or inadequately reclaimed
condition,'' ``project,'' and ``reclamation activity''). Two
definitions from existing Sec. 870.5 (``Indian reclamation program''
and ``State reclamation program'') were combined into one definition
(``reclamation program'') and were moved to proposed Sec. 700.5. In
addition, because ``Fund'' or ``Abandoned Mine Reclamation Fund'' was
defined in both existing Sec. Sec. 700.5 and 870.5, we deleted the
definition in existing Sec. 870.5 and merged the two definitions into
the one proposed at Sec. 700.5.
Furthermore, we propose to move four definitions (``allocate,''
``Indian Abandoned Mine Reclamation Fund or Indian Fund,''
``reclamation plan,'' and ``State Abandoned Mine Reclamation Fund or
State Fund'') to Part 872. One of these terms (``reclamation plan'') is
defined again in Sec. Sec. 874.5, 875.5, 879.5, 880.5, 884.5, 885.5,
886.5, and 887.5, but it is defined first and discussed in greater
detail in the preamble discussion of Sec. 872.5. We also propose to
move one definition (``qualified hydrologic unit'') to proposed Sec.
876.12(c), and one definition (``permanent facility'') to proposed
Sec. 879.11(a)(2). We propose to delete two definitions: one (``OSM'')
which is already defined in existing Sec. 700.5; and one (``agency'')
which is no longer used because of plain English rewording.
Information Collection (Sec. 870.10)
We propose to reword this paragraph using plain English and to use
the current format approved by the Office of Management and Budget
(OMB). It describes OMB's approval of information collections in Part
870, our use of that information, and the estimated reporting burden
associated with those collections.
Fee Rates (Sec. 870.13)
The 2006 amendments both extended the AML reclamation fee for 14
years and provided for a two-step reduction in the amount of the fee
rate. 30 U.S.C. 1232(a). We propose revising Sec. 870.13 to conform
these regulations to the changes made by the 2006 amendments.
First, we propose revising paragraph (a) of Sec. 870.13, which
sets forth the reclamation fee rates per ton for coal produced by
surface, underground, and lignite mining that were in effect from
August 3, 1977, until September 30, 2007. We also propose to indicate
that the rates expired on September 30, 2007, rather than September 30,
2004, as formerly provided in the regulations. We propose to retain
these expired rates for historical purposes and for use in future
audits of production from the years in which those rates applied.
We propose to delete the existing paragraph (b), which set out the
procedure for us to set fees and the first fee rate in the event that
the AML reclamation fee was not extended. As mentioned in the section
of this preamble entitled ``Background on the Reclamation Fee and the
Abandoned Mine Land Program'', Congress extended the fee before it
expired. Thus, paragraph (b) never came into effect, and the fee
extension in the 2006 amendments has made it obsolete.
In its place, we propose to add a new paragraph (b), with a table
that sets out the fee rates established by the 2006 amendments for coal
produced in the period from October 1, 2007, through September 30,
2012. The new fee rates per ton for surface and underground coal and
lignite are each reduced by 10% from the previous rates. Similarly, we
propose a new paragraph (c) with a table showing the fee rates reduced
by an additional 10% of the original rates for coal produced in the
period from October 1, 2012, through September 30, 2021.
SMCRA and the 2006 amendments specifically prescribe fee rates for
surface, underground, and lignite coal mining. As in the previous
regulation, we propose to show rates for in situ mining, which means
gasification of the coal at the mine. We continue to consider in situ
mining to be covered by SMCRA because it is included in the definition
of ``surface coal mining operations'' in section 701(28) of SMCRA and
is therefore subject to the AML reclamation fee. As we have done in the
past, when developing these proposed regulations, we classified in situ
mining as underground mining (see Sec. 785.22 and Part 828). In these
proposed regulations, we continue to
[[Page 35220]]
include a separate paragraph for the fee rates for in situ mining in
order to clarify that the fees are set at the same rate as the fees for
underground mining.
Determination of Percentage-Based Fees (Sec. 870.14)
We propose rewording this paragraph using plain English. We also
propose updating the reference in paragraph (b) to conform this
provision to our proposed revisions of existing Sec. 870.15.
Reclamation Fee Payment (Sec. 870.15)
We propose to break out the information from the existing Sec.
870.15 into four separate sections to better organize this varied
material and make it easier to find and understand. Paragraph (a) was
reworded using plain English. We divided existing paragraph (b) into 3
new paragraphs (b), (c), and (d) within proposed Sec. 870.15. This
division separates these related, but distinct, topics for easier
understanding. We also reworded these provisions using plain English.
The remaining paragraphs (existing paragraphs 870.15(c) through (g))
were moved: existing paragraphs (c), (f), and (g) related to late
payments were moved to proposed Sec. 870.21; existing paragraph (d)
related to acceptable payment methods was moved to proposed Sec.
870.16; existing paragraph (e) related to the consequences of
noncompliance was moved to proposed Sec. 870.23.
Acceptable Payment Methods (Sec. 870.16)
We propose to move the contents of existing Sec. 870.16 on
production records to new Sec. 870.22 to better organize related
topics. In turn, we propose to move the contents of existing Sec.
870.15(d) to proposed Sec. 870.16, and reword those provisions using
plain English. The proposed reorganization will keep information
related to payment methods immediately after the fee payment
information contained in Sec. 870.15.
Filing the OSM-1 Form (Sec. 870.17)
This section proposes to expand on the existing Sec. 870.17, which
covers the electronic filing of the coal reclamation fee report, known
as the OSM-1 Form. We kept existing Sec. 870.17 and made it proposed
Sec. 870.17(a). However, we added a paragraph (b) on filing a paper
OSM-1 Form. Now, under the proposed rule, both options for filing the
OSM-1 Form are listed together in the same section.
In addition, section 402(c) of SMCRA requires that ``all operators
of coal mine operations shall submit a statement of the amount of coal
produced during the calendar quarter, the method of coal removal and
the type of coal, the accuracy of which shall be sworn to by the
operator and notarized.'' 30 U.S.C. 1232(c). Although SMCRA states that
your OSM-1 Form is to be notarized, we believe that 28 U.S.C. 1746
allows us to accept the OSM-1 Form along with a statement made under
penalty of perjury that the information contained in the form is true
and correct. Section 1746 provides that any matter required to be sworn
may with like force be established by an unsworn written declaration
consistent with the statute. Currently, if you file your report
electronically on our Web site, we allow you to choose whether to keep
a paper notarized copy or to make an unsworn statement using acceptable
certification language that the system provides. See also 66 FR 28634.
We are adding a similar unsworn statement option in paragraph (b) to
reduce your burden if you choose to file your OSM-1 Form on paper.
General Rules for Calculating Excess Moisture (Sec. 870.18)
The only change we propose to make in this section is to update a
reference in paragraph (b) to reflect our proposed division of existing
Sec. 870.15 into four sections. We are not considering any substantive
changes to this section. We only intend to make those changes needed to
correct any cross-references to other sections that may be altered by
this rulemaking.
Late Payments (Sec. 870.21)
We propose to move this information from the existing paragraphs
Sec. 870.15(c), (f), and (g) to new Sec. 870.21 and reword these
provisions using plain English. This reorganization will make proposed
Sec. 870.15 more focused on the payment of the reclamation fee while
grouping the specific information on the interest and penalties that we
may charge on delinquent reclamation fees into this new section.
Maintaining Required Production Records (Sec. 870.22)
We propose to move the information in the existing Sec. 870.16 to
this new section for better organization because it allows us to group
the payment and reporting sections together. We also propose to reword
this section using plain English.
Consequences of Noncompliance (Sec. 870.23)
We propose to move existing Sec. 870.15(e)(1)-(5) to this new
section. We believe this section should be separated from the late
payments section because it also applies to the failure to comply with
the record maintenance provisions. In addition, we reworded this
section using plain English.
Part 872--Moneys Available to Eligible States and Indian Tribes
Our proposed revision of Part 872 describes the moneys that make up
the Fund and other sources of money, including otherwise unappropriated
funds in the U.S. Treasury as specified by the 2006 amendments, that
are available to you, the eligible States and Indian Tribes with
approved reclamation programs. This part also describes how we will
convey these funds to you and what you may use them for.
We are proposing regulations to address the changes to SMCRA that
the 2006 amendments made. In addition, we are proposing to divide,
remove, and renumber parts of existing Sec. Sec. 872.11(a) through
872.11(c) and Sec. 872.12, change headings, add new sections and
headings as appropriate, and more clearly describe the different types
of funds available under this Part. We propose these additional changes
to make the regulations easier to read and understand. Each proposed
change is described below in more detail.
What does this Part do? (Sec. 872.1)
In this section, we explain that the purpose of Part 872 is to set
forth the responsibilities for administering reclamation programs and
the procedures for managing funds used to finance these programs. We
propose to change the section heading to ``What does this Part do?'',
to reword the section using plain English, and to remove a reference to
the Fund, instead referring more generically to ``funds.'' We believe
removing the reference to the Fund recognizes that the 2006 amendments
provide funds to you both from the Fund and from otherwise
unappropriated funds of the U.S. Treasury. Throughout this Part, the
terms ``money'' and ``moneys'' are interchangeable with the terms
``fund'' or ``funds,'' but not with the term ``Fund,'' as defined in
proposed Sec. 700.5.
Definitions (Sec. 872.5)
We propose adding Sec. 872.5 to contain definitions pertinent to
Part 872. This proposed section contains four definitions
(``allocate,'' ``Indian Abandoned Mine Reclamation Fund or Indian
Fund,'' ``reclamation plan,'' and ``State Abandoned Mine Reclamation
Fund or State Fund'') moved from existing Sec. 870.5 and two new
definitions (``award'' and ``distribute''). As described below, we also
propose to
[[Page 35221]]
revise the existing definitions that were moved from Sec. 870.5 and to
use plain English for these definitions.
First, we propose to revise the definitions of ``Indian Abandoned
Mine Reclamation Fund or Indian Fund'' and ``State Abandoned Mine
Reclamation Fund or State Fund'' to include references to Parts 885 and
886. Those Parts address grants for certified and uncertified States
and Indian tribes.
Second, we propose to revise the definition of ``reclamation plan''
to refer to States and Indian tribes and to have the same meaning as
``State reclamation plan.'' As proposed, a ``reclamation plan or State
reclamation plan'' means ``a plan that a State or Indian tribe
submitted and that we approved under section 405 of SMCRA and Part 884
of this subchapter.'' Our definition makes ``reclamation plan'' and
``State reclamation plan'' interchangeable wherever those terms appear
in this subchapter, recognizing that certain Parts still use ``State
reclamation plan.'' We included a reference to section 405 of SMCRA to
be consistent with its use of the term ``State reclamation plan'' as
well. 30 U.S.C. 1235. Our proposed definition also is consistent with
section 405(k) of SMCRA, which considers Indian tribes that have
eligible lands under section 404 the same as States for the purposes of
Title IV, except for the purposes of section 405(c). 30 U.S.C. 1235(k).
Next, we propose two changes to the definition of ``allocate.'' The
revised definition now states that ``allocate'' means ``to identify
moneys in our records at the time they are received by the Fund.'' We
also added a statement to clarify that the allocation process
identifies the type of funds or the specific State or Indian tribal
share.
The definition of ``allocate'' is distinguishable from the new
definitions of ``distribute'' and ``award'' that we propose to add. We
define ``distribute'' as meaning ``to annually assign funds to a
specific State or Indian tribe. After distribution, funds are available
for award in a grant to that specific State or Indian tribe.'' We
define ``award'' as meaning ``to approve our grant agreement
authorizing you to draw down and expend program funds.''
We use the terms ``allocate,'' ``distribute,'' and ``award''
throughout Part 872 to describe the process that we follow to make
funds available to States and Indian tribes. Our accounting process
first allocates funds to a particular share (State and Tribal shares or
historic coal funds, for example) as soon as we receive the collected
fees. Next, we distribute funds annually after the end of each Federal
FY to specific States and Indian tribes according to the statutory
provisions and the regulations governing those funds (for example, we
will follow proposed Sec. 872.15 to distribute State share funds).
After the funds are distributed, we award funds to States and Indian
tribes in grants following the procedures of proposed Part 885 for
certified States and Indian tribes and Part 886 for uncertified States
and Indian tribes if and when they apply for such grants.
Information Collection (Sec. 872.10)
We propose to update this section and reword it using plain
English. It describes the OMB's approval of information collections in
Part 872, our use of that information, and the estimated reporting
burden associated with those collections.
Where do moneys in the Fund come from? (Sec. 872.11)
This proposed section describes the funds we collect, recover, and
otherwise receive that are the sources of revenue to the Fund. Here we
propose to change the section heading to ``Where do moneys in the Fund
come from?'' and to renumber existing Sec. Sec. 872.11(a) through
(a)(6) as Sec. Sec. 872.11 through 872.11(f). We also reworded this
section in plain English.
In addition, we propose to remove language from existing Sec.
872.11(a)(6) (now renumbered as proposed Sec. 872.11(f)) that makes
interest earned after September 30, 1992, available for possible future
transfer to the UMWA CBF under section 402(h) of SMCRA. The 2006
amendments to SMCRA added new provisions related to our payments to the
UMWA health care plans. However, this rulemaking does not address those
changes.
In addition, we propose to revise and reorganize the information in
existing Sec. Sec. 872.11(b), including paragraphs (b)(1) through
(b)(8), into various other sections. Existing Sec. 872.11(b)(1) is
included in proposed Sec. Sec. 872.14 and 872.15 on State share funds
and Sec. 886.20 on unused funds. Similarly, existing Sec.
872.11(b)(2) is included in proposed Sec. Sec. 872.17 and 872.18 on
Tribal share funds and Sec. 886.20 on unused funds. Existing Sec.
872.11(b)(3) related to the RAMP program is moved to proposed Sec.
872.20. Existing Sec. 872.11(b)(4) is included in proposed Sec. Sec.
872.21 and 872.22 on historic coal funds. Existing Sec. 872.11(b)(5),
as well as Sec. Sec. 872.11(b)(7) and (b)(8), are moved to Sec. Sec.
872.24 and 872.25 on Federal expense funds. Existing Sec. 872.11(b)(6)
is included in proposed Sec. Sec. 872.26 and 872.27 on minimum program
makeup funds. We propose to move existing Sec. 872.11(c) to Sec.
872.12(c). We propose to revise all these provisions to be consistent
with the 2006 amendments and to reword them using plain English.
Where do moneys distributed from the Fund and other sources go? (Sec.
872.12)
We propose to change the heading of existing Sec. 872.12 to
``Where do moneys distributed from the Fund and other sources go?'',
and to reword the section using plain English. We also propose to add
paragraph Sec. 872.12(c) for information moved from existing Sec.
872.11(c) and to make a conforming change. The conforming change
involves the requirement in existing Sec. 872.11(c) that States and
Indian tribes use money deposited in their State or Indian Abandoned
Mine Reclamation Funds to carry out their reclamation plans approved
under Part 884 and projects approved under Part 888. On February 22,
1995, we removed Part 888, which related to special Indian land
procedures, and replaced it with Sec. 886.25, but did not change the
cross-reference in existing Sec. 872.11(c). 60 FR 9974. In Sec.
872.12(c), we now propose to replace that cross-reference with a
reference to proposed Sec. 886.27, which is the proposed renumbering
of existing Sec. 886.25.
What money does OSM distribute each year? (Sec. 872.13)
We propose to add new Sec. 872.13 to describe how we distribute
moneys each year to States and Indian tribes under SMCRA, as revised by
the 2006 amendments. We address each type of funding elsewhere in this
proposed rule in greater detail.
Paragraph (a) lists the funds that we must distribute because they
are not subject to prior Congressional appropriation. These
distributions include State share (Sec. 872.14), Tribal share (Sec.
872.17), historic coal (Sec. 872.21), minimum program make up (Sec.
872.26), prior balance replacement (Sec. 872.29), and certified in
lieu funds (Sec. 872.32).
Paragraph (b) explains we use fee collections for coal produced in
the previous Federal FY on a net cash basis to calculate the annual
distribution. In other words, collections from the most recent FY
include any adjustments to fees collected in previous years. In order
to meet our customer service obligation, we must quickly determine how
much money we collected each FY so that we can complete the mandatory
distribution of AML funds to the States and Indian tribes as early in
the FY as possible. When we make adjustments to the fees collected in
an earlier FY, we must add or subtract the changes from
[[Page 35222]]
collections for the year in which we actually receive them because we
cannot go back and revise the prior year fee collection amounts and
distributions that we have already made to the States and Indian
tribes.
Paragraph (c) briefly states that we distribute Congressionally-
appropriated Federal expense funds when the appropriation becomes
available.
Last, paragraph (d) states that you may apply for funds any time
after we distribute them. Certified States and Indian tribes will apply
for grants using the procedures of Part 885 and uncertified States and
Indian tribes will use the procedures of Part 886.
What are State share funds? (Sec. 872.14)
We are proposing to remove and replace the existing Sec. Sec.
872.11(b) and 872.11(b)(1) with Sec. Sec. 872.14 and 872.15. The new
sections include language consistent with the 2006 amendments and are
worded in plain English. Proposed Sec. 872.14 replaces the first and
second sentences of existing Sec. 872.11(b)(1), which included
provisions for what commonly have been called ``State share'' funds and
that are provided for under section 402(g)(1)(A) of SMCRA.
Specifically, this proposed provision explains that State share funds
are 50 percent of the reclamation fees collected on coal mined in your
State (excluding Indian lands) and allocated to you under section
402(g)(1)(A) of SMCRA for coal produced in the previous fiscal year.
How does OSM distribute and award State share funds? (Sec. 872.15)
Proposed Sec. 872.15 explains how we distribute and award State
share funds to you if you are eligible to receive them. Section
872.15(a)(1) replaces the third sentence of existing Sec. 872(b)(1)
and states that to be eligible to receive State share funds you must
have and maintain an approved reclamation plan. Section 872.15(a)(2)
adds that to be eligible you cannot be certified under section 411(a)
of SMCRA because under section 401(f)(3)(B) of SMCRA, as revised by the
2006 amendments, certified States are ineligible to receive moneys from
their State share of the Fund as of October 1, 2007. 30 U.S.C.
1231(f)(3)(B).
We did not distribute State share funds to certified States in the
2008 distributions because section 401(f)(3)(B) of SMCRA, as revised by
the 2006 amendments, prohibits us from distributing any moneys from the
Fund to certified States beginning on October 1, 2007. So, consistent
with SMCRA, proposed Sec. 872.13(a)(1) prohibits certified States from
receiving any State share funds from the Fund after September 30, 2007.
In proposed Sec. 872.15(b), we describe how we distribute and
award State share funds if you meet the eligibility criteria of
paragraph (a). In paragraph (b)(1), we include a table explaining the
distributions, which will be phased-in under 401(d)(3) and (f) of
SMCRA, as amended. 30 U.S.C. 1231(d)(3) and (f). Although section
402(g)(1) of SMCRA generally requires us, acting on behalf of the
Secretary, to distribute annually to an uncertified State 50 percent of
the reclamation fees we collect in that State for the previous FY
without prior Congressional appropriation, section 401(f)(5) of SMCRA,
as added by the 2006 amendments, requires us to phase-in the mandatory
distribution of these funds. 30 U.S.C. 1231(f)(5)(B). As a result, for
FY 2008 and FY 2009, which begin on October 1, 2007, and October 1,
2008, respectively, we will distribute to each uncertified State only
50 percent of the State share allocated to it. Because the State share
is 50 percent of the reclamation fees collected on production in that
State, for FY 2008 and FY 2009, uncertified States will receive only 25
percent of the reclamation fees collected on coal produced in their
State (a 50 percent phase-in of the 50 percent in reclamation fees for
the State share). Likewise, State shares that we distribute in FY 2010
and FY 2011, which begin October 1, 2009, and October 1, 2010,
respectively, will be 75 percent of the 50 percent share, which is 37.5
percent of the reclamation fees collected on coal produced in that
State. We will distribute to uncertified States their full 50 percent
State share from the Fund each year beginning with FY 2012, which
starts on October 1, 2011, and lasting through FY 2022, which ends on
September 30, 2022. In FY 2023, we expect to distribute to uncertified
States all moneys remaining in their State share of the Fund.
Proposed Sec. 872.15(b)(2) explains that we will continue to award
funds under this paragraph in grants in accordance with Part 886.
Awarding State share funds in grants is consistent with section
402(g)(1)(C) of SMCRA. 30 U.S.C. 1232(g)(1)(C). In addition, we note
that many States were awarded State share funds in prior year grants,
before the 2006 amendments. Those funds would continue to be subject to
the provisions of Part 886.
What may States use State share funds for? (Sec. 872.16)
Proposed Sec. 872.16 describes what you, the uncertified State,
may use your State share grant funds for. You may only use them for the
following purposes: (1) To reclaim coal lands and waters under Sec.
874.12; (2) to restore water supplies under Sec. 874.14; (3) to
reclaim noncoal lands and waters under Sec. 875.12 as requested by the
Governor under section 409(c) of SMCRA; (4) to deposit into an acid
mine drainage abatement and treatment fund under Part 876; and (5) to
acquire land under Sec. 879.11.
We note that the Fund consists mostly of reclamation fees we
collect on each ton of coal produced. Although we have been collecting
those fees under Title IV of SMCRA for almost 30 years, many abandoned
coal problems remain to be addressed nationwide. The 2006 amendments
emphasize the need to abate the country's remaining abandoned coal mine
problems. See, e.g., 30 U.S.C. 1232(g)(2) and 1240a(h)(1)(D)(ii). We
believe that under the 2006 amendments, the Fund is to be used
primarily to abate coal problems. We intend proposed Sec. 872.16 to
emphasize abandoned coal mine reclamation while continuing to allow
uncertified States to abate Priority 1 noncoal hazards using moneys
from the Fund in accordance with sections 402(g)(1)(A)(ii) and (C),
402(g)(6), and 409(b) and (c) of SMCRA.
What are Tribal share funds? (Sec. 872.17)
We are proposing to revise the first three sentences of existing
Sec. 872.11(b)(2) and divide it into Sec. Sec. 872.17 and 872.18.
Existing Sec. 872.11(b)(2) includes provisions for what commonly have
been called ``Tribal share'' funds that are provided by section
402(g)(1)(B) of SMCRA. The new sections include language to address the
2006 amendments and are worded in plain English.
In proposed Sec. 872.17 we explain that ``Tribal share funds'' are
moneys we distribute to you each year from your Tribal share of the
Fund. Your Tribal share of the Fund is 50 percent of the reclamation
fees we collect and allocate under 402(g)(1)(A) of SMCRA to you, the
Indian tribe(s), in the Fund for coal produced in the previous fiscal
year from the Indian lands in which you have an interest.
How does OSM distribute and award Tribal share funds? (Sec. 872.18)
This section largely is a duplicate of proposed Sec. 872.15 except
that it applies to Indian tribes and the Tribal share funds. So, the
explanations in the preamble for Sec. 872.15 are largely the same for
distributing and awarding Tribal share funds under this section
(including the phase-in provisions), and we will not repeat them.
However, we
[[Page 35223]]
will discuss a few distinctions involving the distribution of Tribal
share funds to Indian tribes.
As of October 1, 2007, under amended section 401(f)(3)(B) of SMCRA,
States that are certified under section 411(a) are ineligible to
receive State share funds. 30 U.S.C. 1231(f)(3)(B). This exclusion does
not specifically say whether it applies to Indian tribes. However, to
be consistent, we propose in Sec. 872.18 to exclude all certified
Indian tribes from receiving Tribal share funds after October 1, 2007.
At this time, only the Crow, Hopi, and Navajo Indian tribes have
approved reclamation programs and have Tribal share funds. All three of
those Indian tribes are certified under section 411(a) of SMCRA.
Section 405(k) of SMCRA generally requires us to consider Indian tribes
``as a `State' for the purposes of this title * * *.'' 30 U.S.C.
1235(k). So, because section 405(k) considers the Crow, Hopi, and
Navajo Indian tribes as States for the purposes of Title IV and because
they are certified under section 411(a), we must apply section
401(f)(3)(B) to those three Indian tribes. The Hopi and Navajo Indian
tribes were certified before October 1, 2007, and they cannot receive
Tribal share funds as of that date. 30 U.S.C. 1231(f)(3)(B), 1235(k).
Therefore, we did not include Tribal share funds in their 2008
distributions. The Crow Indian tribe was uncertified as of December 17,
2007, which was when we made the 2008 AML distribution, so it received
Tribal share funds. Since then, however, the Crow Indian tribe
certified under section 411(a)(1) of SMCRA (73 FR 17247, April 1,
2008), so it cannot receive any additional Tribal share funds.
Presently, there are no uncertified Indian tribes. However, at some
future date, it is possible an uncertified Indian tribe could qualify
for Tribal share funds.
What may Indian tribes use Tribal share funds for? (Sec. 872.19)
Proposed Sec. 872.19 describes what you, the uncertified Indian
tribe, may use your Tribal share grant funds for. You may only use
Tribal share funds for the following purposes: (1) To reclaim coal
lands and waters under Sec. 874.12; (2) to restore water supplies
under Sec. 874.14; (3) to reclaim noncoal lands and waters under Sec.
875.12 as requested by the governing body of the Indian tribe according
to section 409(c) of SMCRA; (4) to deposit into an acid mine drainage
abatement and treatment fund under Part 876; and (5) to acquire land
under Sec. 879.11. Our explanation in the preamble for Sec. 872.16,
which allows States to use State share funds for noncoal reclamation,
also applies to Indian tribes' use of Tribal share funds. Therefore, we
will not repeat it here.
What will OSM do with unappropriated AML funds currently allocated to
the Rural Abandoned Mine Program? (Sec. 872.20)
We are proposing to renumber existing Sec. 872.11(b)(3) as Sec.
872.20 under the new heading ``What will OSM do with unappropriated AML
funds currently allocated to the Rural Abandoned Mine Program?'' and to
remove the existing provisions for transferring money from the Fund to
the Rural Abandoned Mine Program (RAMP). The 2006 amendments removed
the statutory provisions that provided funding for RAMP and created
section 402(h)(4)(B) of SMCRA. That section requires us to take any
funds that were allocated to RAMP but that were not appropriated before
December 20, 2006, and set them aside for possible transfer to the UMWA
health care plans. Proposed Sec. 872.20 is consistent with this
provision. Note that the only funds currently allocated to RAMP and
affected by this section are those we collected and allocated between
October 1, 2005, and December 20, 2006, because the RAMP balance on
September 30, 2005, was reallocated to the Federal expense funds
(section 402(g)(3) of SMCRA) by the Department of the Interior,
Environment, and Related Agencies Appropriations Act, 2006, (Pub. L.
109-54, 119 Stat. 513 (2005)).
What are historic coal funds? (Sec. 872.21)
We are proposing to remove existing Sec. 872.11(b)(4) and its
subsections (b)(4)(i) and (ii) and to replace them with Sec. Sec.
872.21 and 872.22. These new sections describe what commonly are known
as ``historic coal funds.'' These sections address the 2006 amendments
for historic coal funds and are worded in plain English.
Proposed Sec. 872.21 describes historic coal funds and reflects
the requirements of sections 401(d)(3), 401(f)(3)(A)(i), 401(f)(5)(B),
402(g)(5), 411(h)(1)(A)(ii), and 411(h)(4) of SMCRA, as revised by the
2006 amendments. 30 U.S.C. 1231(d)(3), 1231(f)(3)(A)(i), 1231(f)(5)(B),
1232(g)(5), 1240a(h)(1)(A)(ii), and 1240a(h)(4). Historic coal funds
are part of the Fund. They are provided for under section 402(g)(5) of
SMCRA based on the amount of coal produced before August 3, 1977, in
your State or on Indian lands in which you have an interest. Section
401(d)(3) mandates that we distribute historic coal funds annually and
that the distribution of historic coal funds is not subject to prior
Congressional appropriation. To determine the amount of the historic
coal funds, section 402(g)(5)(A) now requires us to allocate 60 percent
of the amount of money left in the Fund after we allocate the 50
percent of reclamation fees to the State or Tribal shares under section
402(g)(1). This is an increase from the pre-2006 amendments amount of
historic coal funds, which only allowed us to allocate 40 percent of
the amount of money left in the Fund after the State or Tribal share
funds were allocated. We distribute the historic coal funds for each FY
to supplement grants awarded to uncertified States and Indian tribes
that have not completed reclamation of their Priority 1 and 2 coal
problems as defined by section 403(a).
We are proposing to word Sec. 872.21(a) to more clearly describe
the source and percentages of funds that will make up the historic coal
funds. Only 50 percent of the reclamation fees collected annually is
left in the Fund after the State or Tribal share funds are allocated.
Under section 402(g)(5)(A), 60 percent of that remaining 50 percent
(for a total of 30 percent), of reclamation fees is used to supplement
grants. That section also provides for using 60 percent of all other
revenue to the Fund for the same purpose. So, proposed Sec. 872.21(a)
states that, each year, 30 percent of AML fee collections for coal
produced in the previous FY plus 60 percent of all other revenue to the
Fund become historic coal funds.
Proposed Sec. 872.21(b) describes other moneys included in
historic coal funds as a result of the reallocations we must make
during our annual fund distribution under sections 401(f)(3)(A)(i),
411(h)(1)(A)(ii), and 411(h)(4) of SMCRA. 30 U.S.C. 1231(f)(3)(A)(i),
1240a(h)(1)(A)(ii), and 1240a(h)(4). Paragraph (b)(1) specifies that
moneys we reallocate to historic coal funds based on the prior balance
replacement funds, which are distributed under Sec. 872.29, will be
available for grants beginning with Federal FY 2023. Paragraph (b)(2)
states that moneys we reallocate to historic coal funds based on
certified in lieu funds we distribute under Sec. 872.32 will be
available for grants in FY 2009 through FY 2022. 30 U.S.C.
1231(f)(3)(A)(i). As we explained in our discussions of Sec. Sec.
872.15 and 872.18, after September 30, 2007, certified States and
Indian tribes are no longer eligible to receive their State or Tribal
share funds, which would have been 50 percent of the reclamation fees
paid for coal mined on lands in their State or on Indian lands within
their jurisdiction. 30 U.S.C. 1231(f)(3)(B). In addition,
[[Page 35224]]
section 402(g)(5)(A) prohibits certified States and Indian tribes from
receiving historic coal funds. 30 U.S.C. 1232(g)(5)(A).
Although the certified States and Indian tribes no longer receive a
portion of the reclamation fees paid for coal mined on their lands, we
still collect reclamation fees from coal mining operators in certified
States and on Indian lands as authorized by section 402(a) of SMCRA.
Section 411(h)(4) of SMCRA, as revised by the 2006 amendments, directs
us to reallocate to the historic coal funds money that would formerly
have constituted a certified State's or Indian tribe's State or Tribal
share, i.e., 50 percent of the amount of reclamation fees that coal
mining operations in certified States and on Indian lands paid for coal
produced in each FY. 30 U.S.C. 1240a(h)(4). Sections 411(h)(1)(A)(ii)
and 411(h)(4) also require us to reallocate certified States' or Indian
tribes' prior unappropriated balance of State or Tribal share funds to
the historic coal funds. 30 U.S.C. 1240a(h)(4).
How does OSM distribute and award historic coal funds? (Sec. 872.22)
We propose to add Sec. 872.22 to describe how we distribute and
award historic coal funds. We distribute historic coal funds by
determining which States and Indian tribes are eligible for historic
coal funds. We also determine the total amount of funds available from
fee collections for coal produced in the previous FY and from
reallocations based on Treasury payments. Then we divide the available
total between the eligible States and Indian tribes according to each
State's or Indian tribe's percentage of the total tons of coal produced
prior to August 3, 1977, from all eligible States and Indian tribal
lands. We also propose to remove existing Sec. 872.11(b)(4)(i) and
(ii) and to include similar provisions at Sec. Sec. 872.22(d) and (e)
as explained below.
Section 872.22(a) includes three criteria you must meet to be
eligible to receive historic coal funds. First, in paragraph (a)(1),
you must have and maintain an approved reclamation plan under Part 884
to be eligible to receive historic coal funds. Second, you cannot be
certified under section 411(a) of SMCRA. Third, because section
402(g)(5)(A) of SMCRA states that you can receive historic coal funds
only if you have unfunded Priority 1 and 2 coal problems under section
403(a), to meet the criterion of paragraph (a)(2) you cannot have
reclaimed all your Priority 1 and 2 coal problems. Thus, if you are an
uncertified State or Indian tribe that has no remaining unfunded
Priority 1 or 2 problems, you cannot receive historic coal funds.
Proposed Sec. 872.22(b) says that once the eligibility criteria
listed in Sec. 872.22(a)(1) and (2) are met, we calculate the historic
coal funds you receive using a formula based on the amount of coal
historically produced before August 3, 1977, in your State or from the
Indian lands concerned.
The table in proposed Sec. 872.22(c) describes how we distribute
historic coal funds. Section 401(f)(5)(B) of SMCRA requires that we
phase in these distributions over four years beginning October 1, 2007.
For the years beginning October 1, 2011, and continuing through
September 30, 2022, we will distribute the full amount we calculated
using the formula mentioned in paragraph (b). For the years beginning
October 1, 2022, and continuing thereafter, we will distribute to you
the amount needed to reclaim your remaining Priority 1 and 2 coal
problems to the extent the funds are available.
Section 401(f)(2)(B) of SMCRA requires us to distribute the same
overall amount from the Fund in FY 2023 and thereafter that we
distribute in FY 2022, if the money is available. 30 U.S.C.
1231(f)(2)(B). Most of the moneys remaining in the Fund by that time
will be historic coal funds. These moneys will be available for
distribution in FY 2023 and later years because of the reallocation of
prior balance replacement fund amounts to historic coal funds under
sections 401(f)(3)(A)(i), 411(h)(1)(A)(ii) and 411(h)(4) of SMCRA. 30
U.S.C. 1231(f)(3)(A)(i), 1240a(h)(1)(A)(ii), and 411(h)(4). We will
continue to use the formula described in paragraph (b) of this section
to distribute historic coal funds to you in FY 2023 and afterward.
Proposed Sec. 872.22(d) states that we will only distribute the
historic coal funds you need to reclaim your unfunded Priority 1 or 2
coal problems. This paragraph includes the provisions that we propose
to move from existing Sec. 872.11(b)(4)(i) and (ii). It addresses the
situation where the cost to reclaim all remaining Priority 1 and 2 coal
problems in an uncertified State or Indian tribe is more than the
amount that the State or Indian tribe receives for its State or Tribal
share alone, but is less than the amount that the State or Indian tribe
receives for its State or Tribal share, unused funds from prior
allocations, and historic coal funds combined. In this situation, we
will reduce the amount of historic coal funds the State or Indian tribe
receives to the amount it needs to fund reclamation of its remaining
Priority 1 or 2 coal problems.
Under proposed Sec. 872.22(e), we will continue the long-standing
practice of awarding historic coal funds to you in grants following the
provisions of Part 886.
What may you use historic coal funds for? (Sec. 872.23)
Proposed Sec. 872.23 describes how you may use historic coal
funds. Consistent with sections 402(g)(5), 402(g)(6)(A), and 409(b) of
SMCRA, this section allows you to use historic coal funds for the
following purposes only: (1) Abandoned coal mine reclamation under
Sec. 874.12; (2) water supply restoration under Sec. 874.14; (3)
abating noncoal problems prior to certification under Sec. 875.12
based on requests made under section 409(c) of SMCRA; (4) for deposit
into an acid mine drainage abatement and treatment fund under Part 876;
and (5) land acquisition under Sec. 879.11.
The use of historic coal funds for some noncoal reclamation is
clearly authorized in section 409(b) of SMCRA. That section, which was
not modified by the 2006 amendments, states that ``[f]unds available
for use in carrying out the purpose of this section [the reclamation of
Priority 1 noncoal sites] shall be limited to those funds which must be
allocated to the respective States or Indian tribes under the
provisions of paragraphs (1) and (5) of section 402(g).'' 30 U.S.C.
1239(b). Because the historic coal funds are allocated to the States
and Indian tribes under section 402(g)(5), uncertified States and
Indian tribes are able to use historic coal funds provided under
section 402(g)(5) to abate Priority 1 noncoal hazards based on requests
made under section 409(c). We believe that amended section 402(g)(2),
which requires ``strict compliance'' by uncertified States and Indian
tribes with the reclamation of coal problems, does not impact the
authorization in section 409(b) that allows historic coal funds to be
expended on noncoal reclamation. Although we request comment on this
issue, proposed Sec. 872.23(a)(3) explicitly allows uncertified States
and Indian tribes to continue using historic coal funds for noncoal
reclamation consistent with section 409(b) of SMCRA.
In addition to the use of historic coal funds for coal reclamation,
water supply restoration, and noncoal reclamation, paragraph (a)(4)
specifies, consistent with section 402(g)(6) of SMCRA, as revised by
the 2006 amendments, that you may use historic coal funds for deposit
into an acid mine drainage
[[Page 35225]]
abatement and treatment fund under Part 876.
What are Federal expense funds? (Sec. 872.24)
We propose to divide existing Sec. 872.11(b)(5) into two sections
and to renumber those sections as Sec. Sec. 872.24 and 872.25. These
sections address what previously were known as ``Federal share funds''
under section 402(g)(3) of SMCRA. We call them ``Federal expense''
funds in this proposed rule. The new sections address the 2006
amendments and are worded in plain English.
Proposed Sec. 872.24 replaces the introductory paragraph at
existing Sec. 872.11(b)(5) and identifies what Federal expense funds
are. Federal expense funds are moneys in the Fund that are not
allocated as State share, Tribal share, historic coal, or minimum
program make up funds. Under section 401(d)(1) of SMCRA, we may use
Federal expense funds only if Congress appropriates them.
What may OSM use Federal expense funds for? (Sec. 872.25)
Proposed Sec. 872.25 describes how we may use Federal expense
funds. Paragraphs (a) through (a)(5) list allowed uses in detail. For
example, we may use these funds to perform nonemergency and other
projects for States and Indian tribes that do not have approved
reclamation programs and for the Secretary's administration of Title IV
of SMCRA and subchapter R of the Federal regulations. Section 872.25
replaces existing Sec. Sec. 872.11(b)(5)(i) through (v) as well as
Sec. Sec. 872.11(b)(7) and 872.11(b)(8) and is worded in plain
English.
We propose to renumber existing Sec. 872.11(b)(7) as Sec.
872.25(b) and to reword it in plain English to describe the Federal
expense distributions. This paragraph reflects the provision in the
last sentence of section 402(g)(5)(A) of SMCRA, which states ``[f]unds
made available under paragraph (3) or (4) of this subsection for any
State or Indian tribe shall not be deducted against any allocation of
funds to the State or Indian tribe under paragraph (1) or under this
paragraph.'' 30 U.S.C. 1232(g)(5)(A). This paragraph clarifies that we
are prohibited from deducting the amount of funds we allocate or
distribute as Federal expenses, described at Sec. 872.25, from your
State or Tribal share funds and historic coal funds. Proposed Sec.
872.25(b) also would remove a reference in existing Sec. 872.11(b)(7)
to minimum program make up funds provided under section 402(g)(8) of
SMCRA because, under section 402(g)(3)(E) of SMCRA, as revised by the
2006 amendments, minimum program make up funds are expressly included
in Federal expenses so the additional reference is no longer necessary.
30 U.S.C. 1232 (g)(3)(E).
In addition, we are proposing to renumber existing Sec.
872.11(b)(8) as Sec. 872.25(c) and reword it using plain English. This
paragraph is consistent with section 402(g)(3)(C) of SMCRA. That
section allows us to use Federal expense funds to address Priority 1,
2, and 3 coal problems that meet the eligibility requirements of
section 404 in States and on Indian lands where the State or Indian
tribe does not have an abandoned mine reclamation program approved
under section 405. 30 U.S.C. 1232(g)(3)(C).
What are minimum program make up funds? (Sec. 872.26)
Our proposed changes to existing Sec. 872.11(b)(6) include
removing it and replacing it with Sec. Sec. 872.26 and 872.27 and
wording them in plain English. These sections are consistent with the
provisions of section 402(g)(8) of SMCRA, as revised by the 2006
amendments, for what commonly has been called ``minimum program
funding'' or the ``minimum program make-up.''
Section 872.26 addresses what we call ``minimum program make up
funds'' in this rule. Paragraph (a) describes these funds as additional
moneys that we distribute to eligible States and Indian tribes each
year to make up the difference between their total distribution of
other funds and $3 million. It also identifies the source of these
moneys as the non-appropriated Federal expense funds. Section
402(g)(3)(E) of SMCRA requires us to use Federal expense funds provided
under section 402(g)(3) for this mandatory distribution. 30 U.S.C.
1232(g)(3)(E). However, unlike other Federal expense funds provided
under section 402(g)(3) and Sec. 872.24 of the regulations, these
funds are not subject to prior Congressional appropriation. 30 U.S.C.
1231(d)(1).
Proposed Sec. Sec. 872.26(b) through (b)(4) describe four criteria
you must meet to be eligible to receive minimum program make up funds.
First, you must have and maintain an approved reclamation plan under
Part 884. Next, you cannot be certified under section 411(a) of SMCRA.
Third, the total amount of State or Tribal share, historic coal, and
prior balance replacement funds you receive annually must be less than
$3 million. Last, you must have unfunded Priority 1 and 2 coal problems
greater than your total annual amount of State or Tribal share,
historic coal, and prior balance replacement funds.
Consistent with section 402(g)(8)(B) of SMCRA, proposed Sec.
872.26(c) makes the same amount of funding available to the States of
Missouri and Tennessee to reclaim Priority 1 and 2 coal problems
provided they have abandoned mine reclamation plans under Part 884.
How does OSM distribute and award minimum program make up funds? (Sec.
872.27)
Proposed Sec. 872.27 describes how we distribute and award minimum
program make up funds. Paragraph (a) provides that we distribute these
funds to you if you meet the eligibility requirements of Sec.
872.26(b). In paragraph (a)(1), we describe how we calculate the amount
of the Federal expense funds, if any, we use to supplement the other
funds you receive under Title IV of SMCRA. We add up the annual
distributions you receive for your prior balance replacement funding
under Sec. 872.29, your State or Tribal share moneys under Sec. Sec.
872.14 or 872.17, and your historic coal funds under Sec. 872.21. If
your distribution of these funds is equal to or greater than $3 million
annually, you will not receive any minimum program funding under this
section. If your distribution of these funds is less than $3 million
annually, we add Federal expense funds to increase your total
distribution to $3 million.
Although we use Federal expense funds to ensure that all
uncertified States and Indian tribes receive at least $3 million in
their distributions, we are required to reduce the amount of these
minimum program make up distributions for the first four years to
comply with the phase-in provision of section 401(f)(5)(B) of SMCRA, as
revised by the 2006 amendments. 30 U.S.C. 1231(f)(5)(B). The table in
paragraph (a)(2) describes how we phase-in funding beginning October 1,
2007, until you reach the full funding level beginning October 1, 2011.
Proposed Sec. 872.27 is consistent with provisions of sections
401(f)(5) and 402(g)(8) of SMCRA, as revised in the 2006 amendments.
Section 402(g)(8)(A) requires us to ensure that ``[i]n making funds
available under this title'' your ``grant awards total not less than $3
million annually.'' 30 U.S.C. 1232(g)(8)(A). We interpret this
provision to mean the full funding level for grants we must annually
award to eligible States and Indian tribes under this section is $3
million. So, we must include the total of funds an uncertified State or
Indian tribe receives under all of Title IV--including the State or
Tribal share funds (section 402(g)(1)), the
[[Page 35226]]
historic coal funds (section 402(g)(5)), and the prior balance
replacement funds (section 411(h)(1))--as part of the $3 million
referred to in section 402(g)(8)(A).
All section 402(g)(8) funds are distributed under section 401(d)(3)
and (f) of SMCRA. Despite the amounts listed in section 401(f)(3) for
distribution to the uncertified State and Indian tribes, this section
requires us to phase in all ``amount[s] distributed under this
subsection'' for the first four fiscal years beginning with FY 2008. 30
U.S.C. 1231(f)(5)(B). Section 401(f)(3) clearly covers the money
allocated by section 402(g)(8) to ensure the $3 million distribution to
eligible States and Indian Tribes. 30 U.S.C. 1231(f)(3)(A).
We are phasing-in this funding based on sections 401(f)(2)(A)(ii),
401(f)(3)(A)(ii), and 401(f)(5) of SMCRA. There are other ways to
calculate the phased-in distribution. We are proposing the method that
we chose for the 2008 distribution because we believe it maximizes
funding for the minimum program States. To calculate the distribution,
we first add up your annual prior balance replacement, State or Tribal
share, and historic coal fund distributions. Then we calculate how much
additional minimum program make up funding you would need to reach $3
million. We apply the phase-in only to that additional minimum program
make up funding.
The following example illustrates the phase-in method: The
distribution of State A's prior balance replacement funds and its
phased-in State share funds and historic coal funds totals $400,000.
The amount of minimum program funds we would add to bring State A's
total distribution to $3 million is $2.6 million. In FY 2008 and FY
2009, we would add 50 percent of the $2.6 million in minimum program
make up funds, or $1.3 million, to the $400,000 sum of the State's
other funding. State A's total distributions for FY 2008 and FY 2009
therefore would be $1.7 million each. In FY 2010 and FY 2011, we would
add 75 percent of the $2.6 million amount of minimum program funds, or
$1,950,000, to the $400,000 sum of State A's other funding (assuming,
for this example, that those other funding levels remain constant).
State A would therefore receive $2,350,000 in both FY 2010 and FY 2011.
We invite you to comment on other ways to calculate minimum program
make up funding that meet SMCRA's requirements.
The table in Sec. 872.27(a)(2)(iii) shows that beginning in FY
2012, your total annual distribution will not be less than $3 million
unless the estimated reclamation cost of your remaining Priority 1 and
2 coal problems is less than $3 million. Section 872.27(a)(2)(iv)
explains that if you have Priority 1 and 2 coal problems remaining
after September 30, 2022, we will continue to fund your total annual
distribution at no less than $3 million (to the extent funds still are
available) until the estimated cost of reclaiming your Priority 1 and 2
coal problems is less than $3 million. If the estimated cost of
reclaiming your Priority 1 and 2 coal problems is less than $3 million
but more than your total annual distribution of all other types of
Title IV funds, we will provide minimum program make up funding up to
the amount of your total unfunded reclamation cost.
Last, proposed Sec. 872.27(b) states that we will award minimum
program make up funds to you in grants following the procedures of Part
886 for uncertified States and Indian tribes, as we have for many
years.
What may you use minimum program make up funds for? (Sec. 872.28)
Consistent with section 402(g)(8)(A) of SMCRA, we propose to add
Sec. 872.28 to state that you may only use minimum program make up
funds to reclaim Priority 1 and 2 coal problems. You may not use
minimum program make up funds for Priority 3 coal problems, AMD set-
asides, noncoal problems, or any other work except Priority 1 and 2
coal problems.
What are prior balance replacement funds? (Sec. 872.29)
Section 872.29 is one of three new sections we propose to add to
explain the provisions of section 411(h)(1) of SMCRA, as revised by the
2006 amendments, for what we call ``prior balance replacement funds''
in this rule. This section describes them as moneys we must distribute
to you instead of the moneys that we allocated to your State or Tribal
share of the Fund before October 1, 2007, but that we did not actually
distribute to you because Congress never appropriated them. It
identifies the source of these funds as general funds of the U.S.
Treasury that are otherwise unappropriated, not the Fund. Under the
2006 amendments, distributions of prior balance replacement funds from
general funds of the U.S. Treasury are mandatory and are not subject to
Congressional appropriation. These distributions start in FY 2008 and
last for seven years.
We do not propose to add a provision to this section, or to
proposed Sec. 872.32 which addresses certified in lieu funds from
Treasury, to reflect the funding cap set forth in section 402(i)(3)(A)
of SMCRA. 30 U.S.C. 1232(i)(3)(A). That cap limits to $490 million in
any fiscal year the total amount of Treasury funding for grants to
States and Indian tribes and for transfers to the three UMWA health
care plans described in sections 402(h) and (i) of SMCRA. In addition,
section 402(i)(3)(B) provides that if the cap is exceeded, each
transfer would be reduced proportionally. 30 U.S.C. 1232(i)(3)(B). At
this time, we project that total needs for this funding will remain
below the cap amount; therefore, we have not proposed specific rule
language describing how we would reduce our distribution of prior
balance replacement funds and certified in lieu funds if the cap were
reached. We request your comments on whether we should add such a
provision, and, if so, what should it contain.
How does OSM distribute and award prior balance replacement funds?
(Sec. 872.30)
We added Sec. 872.30 to describe how we propose to distribute and
award prior balance replacement funds. Under paragraph (a)(1), we
propose to distribute U.S. Treasury funds to you, all States and Indian
tribes with approved reclamation plans, equal to the moneys that we
allocated to your State or Tribal share before October 1, 2007, but
that were not distributed before then. Under paragraph (a)(2), we
propose to distribute these funds to you if you are, or are not,
certified under section 411(a) of SMCRA. Consistent with section
411(h)(1)(C) of SMCRA, proposed paragraph (a)(3) requires us to
distribute these funds to you in seven equal annual installments,
beginning in FY 2008.
Under proposed Sec. 872.30(b), we will award prior balance
replacement funds to you in grants under Part 885 if you are a
certified State or Indian tribe or under Part 886 if you are
uncertified. Section 411(h)(1) of SMCRA says `` * * * the Secretary
shall make payments to States or Indian tribes for the amount due * * *
.'' 30 U.S.C. 1240a(h)(1)(A)(i).
We recognize that SMCRA, as amended, unambiguously requires us to
distribute moneys from the general Treasury to the States and Indian
tribes, but the 2006 amendments do not specify a method of payment for
us to use to make the ``payments.'' See, e.g., 30 U.S.C. 1232(i)(2)
(``[O]ut of any funds in the Treasury not otherwise appropriated, the
Secretary of the Treasury shall transfer to the Secretary of the
Interior for distribution to States and Indian tribes such sums as are
[[Page 35227]]
necessary to pay amounts described in paragraphs (1)(A) and (2)(A) of
section 411(h).''). We considered many methods for making the payments
to States and Indian Tribes under section 411(h)(1). Based on that
consideration and the Solicitor's M-opinion, we are required to make
these payments as grants.
Not only are we required to use grants to distribute prior balance
replacement funds under section 411(h)(1), but doing so also has
advantages. First, using grants allows us to continue the established
and effective process we have been using to disburse moneys from the
Fund to States and Indian tribes for almost 30 years. Grants policies
and procedures currently are described in our Federal Assistance Manual
(FAM; OSM Directive GMT-10). They are simplified compared to those
procedures used for the grants we award under Title V of SMCRA. The FAM
and all grant application forms are available on-line, and States and
Indian tribes can develop and submit grant applications to us
electronically. Likewise, much of our application processing and all of
our grant approval and award actions occur electronically. These
capabilities are integrated with the Department of the Interior's
Financial and Business Management System (FBMS). States' and Indian
tribes' finance and accounting departments are experienced in following
these procedures for receiving and managing grant funds we award. In
addition, they are well versed in OMB Circular A-102, the ``Grants
Common Rule'' at 43 CFR Part 12, and FAM requirements that we follow
for providing financial assistance under Title IV of SMCRA. Those
requirements include periodic reporting and auditing that help States,
Indian tribes, and us ensure proper accounting for funds and their use.
Second, using grants can help us address our programmatic
responsibilities concerning certified and uncertified States and Indian
tribes under sections 201(c)(1) and (4) of SMCRA. 30 U.S.C. 1211(c)(1)
and (4). Grant requirements for periodic reporting provide some of the
information we need to monitor and evaluate States' and Indian tribes'
accomplishments, determine if they are following their approved grants
and reclamation plans, identify the need for assistance, and to help us
with our reporting requirement mandated by section 405(j) of SMCRA.
Third, using grants allows us to maintain financial accountability
for the prior balance replacement funds. As discussed in proposed Sec.
872.31, the 2006 amendments require that prior balance replacement
funds be used for specific purposes: Certified States and Indian tribes
must use them for ``the purposes established by the State legislature
or tribal council of the Indian tribe, with priority given for
addressing the impacts of mineral development''; and uncertified States
and Indian tribes must use them for coal reclamation as described in
section 403. 30 U.S.C. 1240a(h)(1)(D). Using grants provides us with
oversight to ensure that the States and Indian tribes are spending
prior balance replacement funds as required by SMCRA, as revised by the
2006 amendments, and specifically that uncertified States and Indian
tribes are directing prior balance replacement funds into coal
reclamation.
Last, the Treasury regulations associated with grants (31 CFR Part
205) allow States and Indian tribes to draw down prior balance
replacement funds to pay expenses while otherwise keeping funds in the
U.S. Treasury until needed.
Proposed Sec. 872.30(c) addresses sections 411(h)(1)(A)(ii) and
411(h)(4)(A) of SMCRA, as revised by the 2006 amendments. 30 U.S.C.
1240a(h)(1)(A)(ii) and 1240a(h)(4)(A). It requires us to transfer to
historic coal funds the moneys in your State or Tribal share of the
Fund that were allocated, but not appropriated to you, before October
1, 2007. The amount of this transfer will be of the same amount that we
pay you as prior balance replacement funds under this section and
411(h)(1) of SMCRA. Proposed Sec. 872.30(c) further requires us to
make the amounts transferred to the historic coal funds available for
annual grants beginning in FY 2023, which is the same time we
distribute the remaining moneys under Title IV. Finally, it requires us
to allocate, distribute, and award the transferred amounts to you
according to the provisions applicable to historic coal funds under
Sec. Sec. 872.21, 872.22, and 872.23.
What may you use prior balance replacement funds for? (Sec. 872.31)
Consistent with section 411(h)(1)(D)(i) of SMCRA, proposed Sec.
872.31(a) requires you, a certified State or Indian tribe, to use the
prior balance replacement funds you receive only for the purposes that
your State legislature or Tribal council establishes, giving priority
to addressing the impacts of mineral development. 30 U.S.C.
1240a(h)(1)(D)(i). While this language is taken essentially verbatim
from the 2006 amendments, we realize this provision may significantly
affect certified States' and Indian tribes' reclamation programs, and
we specifically invite your comments on this proposal.
Under SMCRA, as revised by the 2006 amendments, the State
legislature or Tribal council has broad and sole discretion to
determine how prior balance replacement funds will be spent. Because
OSM has no basis for approving or disapproving individual projects to
be undertaken with these funds, we do not believe that projects paid
for with prior balance replacement funds would be subject to OSM review
requirements under laws such as the National Environmental Policy Act
of 1969 (NEPA) and the National Historic Preservation Act (NHPA).
Certified States or Indian tribes would be solely responsible for
determining what other Federal laws are applicable to their activities.
Therefore, we are not proposing that an Authorization to Proceed (ATP)
from OSM with an accompanying NEPA review would be required. We invite
your comments on this issue.
Proposed Sec. Sec. 872.31(b) through (b)(3) require that
uncertified States and Indian tribes use their prior balance
replacement funds only for activities related to abandoned coal mine
problems. Section 411(h)(1)(D)(ii) specifies that uncertified States
``shall use any amounts provided under this paragraph for the purposes
described in section 403.'' 30 U.S.C. 1240a(h)(1)(D)(ii). So,
uncertified States and Tribes must use prior balance replacement funds
to reclaim Priority 1, 2, and 3 coal problems under Sec. 874.12, to
restore water supplies under Sec. 874.14, and to maintain the AML
inventory under section 403(c) of SMCRA. Though not a required use in
proposed Sec. 872.31(b), we believe uncertified States and Indian
tribes may use these funds to acquire lands under Sec. 879.11 as
needed to address coal problems under section 403.
Congress enacted the 2006 amendments out of a concern for
addressing remaining coal problems. Section 409(b) specifies that only
certain types of funds can be used to address noncoal problems. 30
U.S.C. 1239(b). Prior balance replacement funds, authorized to be paid
under section 411(h)(1), are not among the types of funds specified for
noncoal reclamation under section 409(b).
Prior balance replacement funds described in section 411(h)(1) are
based on the amount of the reclamation fees we collected in each State
and on Indian lands and allocated to those States and Indian tribes
under section 402(g)(1), but that Congress did not appropriate through
FY 2007. However, the 2006 amendments reallocate those unappropriated
section 402(g)(1) moneys to the historic coal funds of
[[Page 35228]]
section 402(g)(5). 30 U.S.C. 1240a(h)(1)(A)(ii) and 1240a(h)(4)(A). The
prior balance replacement funds that the uncertified States and Indian
tribes receive may be of an amount equivalent to the unappropriated
balance, but they are paid from U.S. Treasury funds and have not been
allocated under section 402(g)(1). There is a fundamental distinction
between the prior balance replacement funds and section 402(g) moneys
distributed from the Fund.
Therefore, proposed Sec. 872.31(b) requires you, the uncertified
State or Indian tribe, to use prior balance replacement funds only for
the three purposes described above. This interpretation will not
prevent you from abating Priority 1 noncoal hazards to public health
and safety with the State or Tribal share funds we distribute to you
annually under Sec. Sec. 872.14 or 872.17 and historic coal funds we
distribute under Sec. 872.21.
What are certified in lieu funds? (Sec. 872.32)
We propose three new sections addressing funds distributed to
States and Indian tribes described in section 411(h)(2) of SMCRA. 30
U.S.C. 1240a(h)(2). We call these moneys ``certified in lieu funds'' in
this proposed rule. As the first of these three sections, Sec. 872.32
describes certified in lieu funds as moneys that we will distribute to
you, a certified State or Indian tribe, in lieu of moneys otherwise
allocated to your State or Tribal share of the Fund after October 1,
2007. We are prohibited from distributing State and Tribal share moneys
to you because of the exclusion in section 401(f)(3)(B) of SMCRA. 30
U.S.C. 1231(f)(3)(B). This proposed section also identifies the source
of these certified in lieu funds as otherwise unappropriated funds in
the United States Treasury, not the Fund. The annual distribution of
certified in lieu funds is mandatory and not subject to prior
Congressional appropriation. These distributions will start in FY 2009
because section 411(h)(2) of SMCRA specifies that our payments must
equal the State and Tribal share funds ``allocated on or after October
1, 2007.'' 30 U.S.C. 1240a(h)(2)(A). So, the first fees collected that
can serve as the basis for calculating certified in lieu payments are
those allocated on coal produced during FY 2008. As a result, we will
distribute certified in lieu funds for the first time in FY 2009.
How does OSM distribute and award certified in lieu funds? (Sec.
872.33)
Proposed Sec. 872.33 describes how we will distribute and award
certified in lieu funds. Paragraph (a) states that you must be
certified under section 411(a) of SMCRA to receive certified in lieu
funds, as required in section 411(h)(2) and defined in section
411(h)(2)(B). If you meet that requirement, we will follow the steps
described in paragraph (b) to distribute these moneys to you. Under
paragraph (b)(1), we will annually distribute to you, beginning in FY
2009, an amount based on 50 percent of the reclamation fees we received
for coal produced during the previous FY in your State or on Indian
lands within the jurisdiction of your Indian tribe. Proposed paragraph
(b)(2) states that the funds we annually distribute to you will be in
lieu of moneys you would have received from your State or Tribal share
of the Fund if section 401(f)(3)(B) of SMCRA, as revised by the 2006
amendments, did not specifically exclude you from receiving those
funds. 30 U.S.C. 1231(f)(3)(B). Although the Fund will not be the
source of these moneys that we distribute to you, you will receive
moneys each year as though you were still receiving them from your
State or Tribal share of the Fund.
Proposed Sec. 872.33(b)(3) explains, using a table, how we intend
to phase-in our distribution of certified in lieu funds to you over the
first three years beginning October 1, 2008. This paragraph is
consistent with section 411(h)(3)(B) of SMCRA, which requires that in
the first three fiscal years beginning with FY 2009, the amount we
annually distribute to you will be equal to 25 percent, 50 percent, and
75 percent, respectively, of 50 percent of the annual reclamation fee
collections in your State or from Indian lands within your
jurisdiction. 30 U.S.C. 1240a(h)(3)(B). You will receive an amount
equal to 100 percent of your 50 percent State or Tribal share of annual
reclamation fee collections in the fiscal year beginning October 1,
2011, and in the following fiscal years.
Proposed Sec. 872.33(c) states our intention to use grants to pay
these funds to you. Section 411(h)(2) of SMCRA says ``the Secretary
shall pay to each certified State or Indian tribe * * * .'' 30 U.S.C.
1240a(h)(2)(A). As with the section 411(h)(1) prior balance replacement
fund ``payments,'' we must use grants to pay certified in lieu funds to
you. See the discussion of Sec. 872.30 above.
The proposed paragraph Sec. 872.33(d) addresses the provisions of
sections 401(f)(3)(A)(i) and 411(h)(4) of SMCRA. It requires us to
transfer to historic coal funds the same amount of funds that we
distribute to you as certified in lieu funds. The transferred amounts
will come from moneys in your State or Tribal share of the Fund that
are otherwise allocated to you for the prior fiscal year, but which you
are barred from receiving. We must make those transferred amounts
available for annual grants beginning in FY 2009, and will do so at the
same time we distribute all other moneys under Title IV. Finally,
proposed Sec. 872.33(d) requires us to allocate, distribute, and award
the transferred amounts to uncertified States and Indian tribes
according to the provisions applicable to historic coal funds under
Sec. Sec. 872.21, 872.22, and 872.23.
Section 411(h)(3)(C) of SMCRA requires us to distribute to you, in
two equal annual installments in FY 2018 and FY 2019, the amounts we
withhold from the first three payments of certified in lieu funds as a
result of the phased-in distribution. 30 U.S.C. 1240a(h)(3)(C).
Proposed Sec. 872.33(e) incorporates that provision into the
regulations.
What may you use certified in lieu funds for? (Sec. 872.34)
Proposed Sec. 872.34 states that you may use certified in lieu
funds for any purpose. We believe that by not specifying any prescribed
uses for these moneys, the 2006 amendments allow you to use certified
in lieu funds for any purpose. Congress could have easily imposed a
requirement to use the funds for a specific purpose as it did for prior
balance replacement funds in sections 411(h)(1)(A)(i) and (ii). Because
section 411(h)(2) does not specify the purpose(s) for which the funding
it provides may be used, we interpret it to mean that the use of the
funds it provides is not restricted.
However, we also recognize there is an alternative reading of
SMCRA, as amended, and invite comment on whether our proposal reflects
the better reading. Section 411(h)(2) of SMCRA, as revised by the 2006
amendments, is silent on how certified in lieu funds can be used. An
argument can be made that this section's silence on the use of these
funds does not mean certified States and Indian tribes can use them for
any purpose. Instead, it might be viewed as meaning that the other
provisions of section 411 of SMCRA, specifically 411(b) through (g),
apply to the use of certified in lieu funds. Because this would make a
major difference in not only how these funds may be used, but in OSM's
role in overseeing that use, we invite comment on which alternative is
[[Page 35229]]
the better reading of the 2006 amendments.
In any case, as a certified State or Indian tribe, you must address
coal problems that arise after certification under existing Sec.
875.14(b), and we do not propose to change this requirement. In
addition, when each State and Indian tribe became certified under the
existing regulations at Sec. 875.13(a)(3), they had to provide an
agreement to ``give top priority'' to any coal problems that occur
after certification. So, certified States and Indian tribes must
address these coal problems, regardless of the funding source.
Part 873--Future Reclamation Set-Aside Program
Applicability (Sec. 873.11)
The 2006 amendments eliminated the authority for States and Indian
tribes to set-aside funds for future reclamation that was once
contained in section 402(g)(6). The proposed changes to Sec. Sec.
873.11 and 873.12 reflect that change by restricting future set-aside
actions to funding received prior to December 20, 2006, while
preserving the requirements that existing funds contained in the set-
aside account be used for their intended purpose. We reworded this
section to account for this change and to use plain English.
Future Set-Aside Program Criteria (Sec. 873.12)
We propose to revise paragraph (a) to include December 20, 2006, as
the cutoff date for deposits to future set-aside fund accounts. As
explained above, we are making this change because the 2006 amendments
removed the authority for States and Indian tribes to use Fund moneys
for this purpose. We are also removing the phrase, ``or (2) An acid
mine drainage abatement and treatment fund pursuant to 30 CFR part
876,'' as the acid mine drainage set-aside program is addressed in that
Part of this rule. Likewise, we are deleting paragraph (b) because it
repeats the conditions for funds that were previously set aside which
are already included in paragraph (a). We are deleting the first
sentence of existing paragraph (c) because it is now obsolete. We also
reworded this section in plain English.
Part 874--General Reclamation Requirements
Definitions (Sec. 874.5)
We propose to add this new section to Part 874 to include the
definition of the term ``Reclamation plan or State reclamation plan''
as it is defined in proposed Sec. 872.5.
Information Collection (Sec. 874.10)
We propose to reword this paragraph using plain English and to use
the current format approved by the OMB. It describes OMB's approval of
information collections in Part 874, our use of that information, and
the estimated reporting burden associated with those collections.
Applicability (Sec. 874.11)
We are proposing revisions to this section to clarify how the
provisions of Part 874 apply to the types of funding made available
under the 2006 amendments and to reword it using plain English. The new
paragraph (a) continues to impose the existing requirement for
compliance when reclaiming eligible lands and waters with moneys from
the Fund. The new paragraph (b) would impose compliance when conducting
reclamation projects with the prior balance replacement funds received
by uncertified programs from section 411(h)(1) of SMCRA because section
411(h)(1)(D)(ii) states that the funds received must be used for the
purposes of section 403. 30 U.S.C. 1240a(h)(1)(D)(ii). Section 403
imposes coal reclamation priorities, authorizes water supply
restoration, and requires the maintenance of the AML inventory. 30
U.S.C. 1233. The new paragraph (c) would impose compliance by certified
programs when using certified in lieu funds provided under section
411(h)(2) of SMCRA to address eligible coal problems after
certification. We are proposing this requirement to ensure that coal
problems are uniformly addressed under each program, regardless of
certification status under section 411.
The new paragraph (d) requires certified programs to follow the
requirements of this Part when expending the prior balance replacement
funds provided by section 411(h)(1) of SMCRA to address coal problems
after certification. Certified States and Indian tribes are to expend
their prior balance replacement funds for the purposes established by
the State legislature or Tribal council with priority given to
addressing the impacts of mineral development. 30 U.S.C.
1240a(h)(1)(D)(i). However, when certified States and Indian tribes use
prior balance replacement funds to address coal problems subsequent to
certification, compliance with the provisions under Part 874 will be
central to our review and approval process.
Eligible Coal Lands and Water (Sec. 874.12)
We are proposing to revise existing paragraphs (c), (e), and (f) of
Sec. 874.12 to reflect our proposed changes to the funding
applicability in Sec. 874.11, to correct minor errors in the existing
regulations, and to reword these paragraphs using plain English. First,
Sec. 874.12(c) would be updated to allow the use of prior balance
replacement funds by uncertified programs to supplement the cost of
reclamation at eligible bond forfeiture sites consistent with section
411(h)(1)(D)(ii), which allows funds to be spent for the purposes
described in section 403. Next, we propose inserting language in Sec.
874.12(e) to allow uncertified programs to use prior balance
replacement funds for the reclamation and abatement of inadequately
reclaimed Priority 1 or Priority 2 sites that were mined between August
4, 1977, and the date on which the Secretary approved a State
regulatory program, known as ``interim program sites,'' or where the
surety of the mining operator became insolvent as of November 5, 1990,
known as ``insolvent surety sites.'' We also corrected an error in the
first sentence by replacing the second ``may'' with ``made'' so that
the sentence reads: ``An uncertified State or Indian tribe may expend
funds made available * * *.'' Last, the revisions to Sec. 874.12(f)
are minor conforming changes and do not alter the existing scope or
meaning of that paragraph.
Reclamation Objectives and Priorities (Sec. 874.13)
We are proposing changes to Sec. 874.13 that reflect expenditure
priorities outlined in section 403(a) of SMCRA, as revised by the 2006
amendments, and clarify how reclamation programs should address
Priority 3 reclamation objectives. Proposed paragraph (a) of Sec.
874.13 contains the most recent date for our ``Final Guidelines for
Reclamation Programs and Projects'' published in 2001. 66 FR 31250,
31258. In addition, it contains the long-standing requirement in
section 403(a) of SMCRA that expenditures must ``reflect the * * *
priorities in the order stated.'' 30 U.S.C. 1233(a).
The remainder of the proposed Sec. 874.13(a) is generally the same
as the text of sections 403(a)(1), (a)(2), and (a)(3) of SMCRA, as
revised by the 2006 amendments. However, the last sentence of Sec.
874.13(a)(3) was added to clarify the term ``adjacent,'' which was
added by the 2006 amendments. More specifically, sections
403(a)(1)(B)(ii) and (a)(2)(B)(ii) of SMCRA allow for certain lands and
waters that have been
[[Page 35230]]
degraded by past coal mining practices to be restored as either a
Priority 1 or Priority 2 expenditure if they are adjacent to a Priority
1 or Priority 2 site. This new statutory provision also extends to
Priority 3 lands and waters adjacent to Priority 1 or 2 sites that have
already been reclaimed under the approved reclamation plan. In effect,
the 2006 amendments allow reclamation programs to offer amendments to
the AML inventory, where applicable, that would reclassify certain
current Priority 3 lands and waters as Priority 1 or Priority 2
expenditures.
We propose that the term ``adjacent'' means Priority 3 eligible
lands and waters that are ``geographically contiguous.'' Under our
proposal, land and water resources that are spatially connected to a
Priority 1 or Priority 2 site, even those sites previously reclaimed,
may now be recorded in the AML inventory as Priority 1 or Priority 2
unfunded costs, funded costs, or completed expenditures, as applicable.
Given that our proposed Sec. 874.13(a) contains only geographical
considerations, we are also seeking comment on possible alternative
definitions of or restrictions to the term ``adjacent.'' For example,
we would like to receive comments on whether the term ``adjacent''
should include all disturbances by a single mining operation or
company. Should the term ``adjacent'' allow for a hydrologic connection
even though there may be great distances between the sites? Should the
term contain restrictions on the types of Priority 3 problems or costs
that can qualify? States can now set up 30% AMD set-aside trusts under
402(g)(6) of SMCRA. In view of that option, should there be any
restrictions on how the term ``adjacent'' is used for Priority 3 AMD
problems? Should permanent facility construction and perpetual
treatment costs associated with AMD from a Priority 2 mine opening or
highwall be elevated to Priority 2 status? Some facilities and
perpetual treatment costs can run into hundreds of thousands, if not
millions, of dollars. Should the expenditures for large acreages of
Priority 3 subsidence be elevated in priority because they are
geographically contiguous to a small Priority 2 subsidence event,
regardless of cost? What about small Priority 2 tipples connected to
large Priority 3 refuse piles? Finally, because the 2006 amendments
removed the 30% cap in water supply replacement expenditures under
section 403(b), should adversely affected water supplies be elevated in
priority when adjacent to other kinds of Priority 1 or 2 reclamation
sites? We would like to receive comments on whether there should be any
limitations, monetary or otherwise, on the kinds of AML programs that
should be addressed under the term ``adjacent.''
The proposed paragraph (b) of Sec. 874.13 incorporates the 2006
amendments' complete revision of section 402(g)(7) of SMCRA.
Previously, section 402(g)(7) contained the requirements for developing
hydrologic unit plans consistent with the AMD set-aside trust provision
of section 402(g)(6). The amended language of section 402(g)(7) now
addresses how Priority 3 work can be undertaken; it states:
In complying with the priorities described in section 403(a),
any State or Indian tribe may use amounts available in grants made
annually to the State or tribe under paragraphs (1) and (5) for the
reclamation of eligible land and water described in section
403(a)(3) before the completion of reclamation projects under
paragraphs (1) and (2) of section 403(a) only if the expenditure of
funds for the reclamation is done in conjunction with the
expenditure before, on, or after the date of enactment of the
Surface Mining Control and Reclamation Act Amendments of 2006 of
funds for reclamation projects under paragraphs (1) and (2) of
section 403(a).
30 U.S.C. 1232(g)(7)
In effect, section 402(g)(7) prevents uncertified States or Indian
tribes from using State or Tribal share funds, as discussed in section
402(g)(1) of SMCRA, and Sec. Sec. 872.14 and 872.17, and historic coal
funds, as discussed in section 402(g)(5) of SMCRA and Sec. 872.21, for
the reclamation of Priority 3 lands and water before they have
completed their Priority 1 and 2 reclamation projects. However, section
402(g)(7) does provide an exception that allows State or Tribal share
funds and historic coal funds to be used for Priority 3 lands and
waters, but only if that reclamation is done in conjunction with the
expenditure of funds before, on, or after December 20, 2006, for
Priority 1 and Priority 2 reclamation.
To be consistent with this section, we propose to apply section
402(g)(7) of SMCRA in a manner that is slightly more restrictive than
the way we have promoted Priority 3 land and water reclamation in the
past. Our longstanding approach, based on the first sentence of section
403(a), has been that reclamation programs can reclaim Priority 3 land
and water projects before the completion of all Priority 1 and 2
projects as long as the overall reclamation program generally reflects
the priorities in section 403(a) of SMCRA. The Department of the
Interior initially expressed this approach in a May 18, 1982,
memorandum by the Office of the Solicitor that recognized the
discretion program officials have in selecting projects based upon a
wide range of qualitative and quantitative data. This memorandum also
concluded that the States and the Secretary have ample authority and
rationale to select projects based upon such factors as are outlined in
Sec. 874.13 and to fund lower priority projects together with higher
priority projects as long as the total program reflects the achievement
of objectives in section 403(a) of SMCRA.
Through the life of the AML program, we published and maintained an
advisory document titled ``Final Guidelines for Reclamation Programs
and Projects'' (see latest version 66 FR 31250, June 11, 2001). These
guidelines direct that, generally, reclamation of lower priority
projects should not begin until all known higher priority projects have
been completed, are in the process of being reclaimed, or have been
approved for funding by the Secretary. See 66 FR 31252, (``Reclamation
Site Ranking''). Our guidance further explains that lower priority
projects or contiguous work may be undertaken in conjunction with high
priority projects, but it sets forth factors to weigh to determine if
the lower priority projects should be considered over higher priority
projects. Examples of these factors include: When a landowner consents
to participate in post reclamation maintenance activities of the area;
when the reclamation provides many benefits to the landowner and those
benefits have a greater cumulative value than other projects; and when
reclamation provides offsite public benefits. Id. We also promote the
reclamation of lower priority lands and waters when it is cost
effective. See 66 FR 31253 (``Reclamation Extent''). To date, we have
encouraged stand-alone Priority 3 projects and Priority 3 work that is
contiguous with higher priority work based upon the efficiencies gained
for the program and the environmental and community benefits.
To be consistent with the revised language of section 402(g)(7) of
SMCRA, we are proposing to replace the existing language under Sec.
874.13(b) with language that specifies that this provision applies to
uncertified States and Indian tribes who seek to use State or Tribal
share funds and historic coal funds for Priority 3 reclamation.
However, based on section 402(g)(7) and our past experience, this
proposed provision also requires uncertified States and Indian tribes
to meet one of two conditions before being allowed to reclaim Priority
3 sites.
Under the first condition, described in proposed Sec.
874.13(b)(1), uncertified
[[Page 35231]]
States and Indian tribes may only complete stand alone Priority 3
projects after the State or Indian tribe has completed all Priority 1
and 2 reclamation projects in its jurisdiction. We believe this
proposal to be slightly more restrictive than the existing regulations
because, if finalized, it would prohibit stand-alone Priority 3
projects until all known Priority 1 or 2 sites have been completed,
unless the uncertified State or Indian tribe meets the conditions
detailed in proposed Sec. 874.13(b)(2).
Proposed Sec. 874.13(b)(2) allows uncertified States and Indian
tribes to reclaim Priority 3 lands and waters before all higher
priority sites are reclaimed, as long as they are being done ``in
conjunction with'' a Priority 1 or Priority 2 project. Specifically,
proposed Sec. 874.13(b)(2) allows you to expend State or Tribal share
and historic coal funds for the reclamation of Priority 3 lands and
water that are related to past, present, or future projects, but only
if you determine that such expenditures would or would have (i)
facilitate(d) the Priority 1 or Priority 2 reclamation or, (ii)
provide(d) reasonable savings at the time of the project towards the
objective of reclaiming all Priority 3 land and water problems. We are
proposing these two conditions because they will promote Priority 3
reclamation while emphasizing the elevated Priority 1 and 2 reclamation
objectives contained in the 2006 amendments. Under our proposed
revision, program officials could not only use State and Tribal share
and historic coal funds for Priority 3 sites that would aid in the
reclamation of higher priority sites or would be cost efficient to do
so, but they could also revisit each completed project and determine if
there are Priority 3 lands and waters related to those past projects
that still need to be reclaimed. These Priority 3 sites could then be
reclaimed before the all Priority 1 and 2 problems have been addressed.
While we anticipate that most Priority 3 lands that fall within
Sec. 874.13(b)(2)(i) would have been addressed during the initial
project, there may be areas where, at the time, the efficiencies of
combined contracting or other cost saving factors would have satisfied
Sec. 874.13(b)(2)(ii). Reasons why such lands may not have been
incorporated in the initial project could include past landowner
restrictions, shortage of available grant funding, staffing and
administrative considerations, or the potential for remining.
We believe that the language of Sec. 874.13(b)(2), as proposed,
does not specifically preclude allowing Priority 3 work as a separate
phase of construction within a Priority 1 or 2 project. However,
Priority 3 work that is undertaken as a separate phase may not realize
the administrative and contracting efficiencies of combined design and
development, one-time mobilization and demobilization costs, or reduced
unit costs that can be attributed to larger projects. These types of
factors would be central to an analysis to determine whether there are
reasonable savings under proposed Sec. 874.13(b)(2)(ii). We welcome
comments on the effect of our proposed language on construction project
phasing.
As described above, the 2006 amendments substantially elevated and
redirected resources towards the uncertified programs with the most
hazardous--Priority 1 and 2--coal sites. This was accomplished through
the mandatory distributions of State or Tribal share funds and historic
coal funds, the reallocation of the section 402(g)(1) funding away from
certified programs, and raising the minimum program make up funding
level. 30 U.S.C. 1231(f)(3)(B), 1232(g)(1)(A), 1232(g)(1)(B),
1232(g)(5), 1232(g)(8)(A), and 1240a(h)(4). In addition, the 2006
amendments strengthened our responsibilities towards oversight of
reclamation by obliging us to ensure that uncertified States and Indian
tribes strictly comply with the priorities in section 403, by requiring
us to review amendments to the AML inventory, by granting us the
authority to unilaterally certify the completion of coal problems, and
by restricting the use of prior balance replacement funds to address
coal problems under section 403. 30 U.S.C. 1232(g)(2), 1233(c),
1240a(a)(A), and 1240a(h)(1)(D)(ii).
Given these new funding directives and our enhanced oversight
responsibilities, we believe that limiting the number and types of
Priority 3 projects that could be addressed under the ``in conjunction
with'' provision is consistent with the intent of SMCRA, as revised by
the 2006 amendments. To ensure that high priority site reclamation is
promoted while we observe our long term commitment to eliminate all
coal problems, we are proposing that you may use State or Tribal share
funds or historic coal funds to reclaim Priority 3 sites even if you
have not completed all Priority 1 and Priority 2 problems if the
reclamation of those sites facilitates the reclamation of Priority 1
and 2 problems or if you determine that there would be reasonable
savings towards the objective of reclaiming all Priority 3 land and
water problems.
Generally, we would expect reasonable savings to be composed of a
number of reduced expenditures in project development and construction,
such as reduced design costs, reduced mobilization and demobilization
charges, reduced unit prices, and administrative efficiencies, and that
as the Priority 3 work increases in size or cost, the amount of
potential savings would diminish. As part of our oversight and
inventory management responsibilities, we will review individual State
or Indian tribe determinations under Sec. 874.13(b)(2)(ii) that the
reclamation of specific Priority 3 lands and waters is appropriate
because they facilitate reclamation or provide reasonable savings
towards the long-term objective of reclaiming all coal problems.
We do not believe that our efforts to define the use of ``in
conjunction with'' will significantly reduce the types of Priority 3
projects that are reclaimed. While our proposed Sec. 874.13(b)(2) is
intended to address Priority 3 reclamation undertaken as part of the
process of developing and undertaking traditional reclamation projects
under 403(a) of SMCRA, there are a number of activities that are
performed by reclamation programs to address eligible lands and waters
that are not subject to this provision, including water supply
restoration, the 30 percent set-aside for AMD projects, the use of
prior balance replacement funds, projects authorized under the AML
Enhancement Rule, Appalachian Clean Streams projects, Watershed
Cooperative Agreement projects, and any AML sites reclaimed under the
remining incentives provided under section 415 of SMCRA, as revised by
the 2006 amendments. These activities primarily address Priority 3
lands and waters but are not affected by the limitation contained in
Sec. 874.13(b)(2) for a variety of reasons. Water supply restoration
projects and the AMD 30 percent set-aside program are authorized by
sections 403(b) and 402(g)(6)(A) of SMCRA, respectively. 30 U.S.C.
1233(b) and 1232(g)(6)(A). Prior balance replacement funds may be used
for Priority 3 reclamation because they are specifically directed to be
used for the purposes of section 403 of SMCRA, as provided in Sec.
872.31. Although funded from the Federal expense share of the Fund,
Appalachian Clean Streams projects and Watershed Cooperative Agreement
projects are authorized through specific Congressional appropriations.
AML Enhancement Rule projects were established through a specific
rulemaking process where the Secretary used the powers and authority
[[Page 35232]]
under section 413(a) of SMCRA to provide States and Indian tribes with
the authority to reduce project costs to the maximum extent practicable
on abandoned mine sites which have deposits of coal or coal refuse
remaining. 30 U.S.C. 1242(a); see also 64 FR 7470. Qualifying sites are
specifically provided for as an exception to SMCRA under section 528.
30 U.S.C. 1278. Neither section 413(a) nor section 528 was revised by
the 2006 amendments, and we do not believe anything in the 2006
amendments would affect the existing AML Enhancement Rule. Finally,
many of the AML sites that may be reclaimed pursuant to the remining
incentives contained in the 2006 amendments would be Priority 3 sites.
These remining incentives are specifically authorized by section 415 of
SMCRA, as amended. In conclusion, while our proposed requirements at
Sec. 874.13(b)(2) would prevent the reclamation of some stand-alone
Priority 3 sites previously undertaken as part of the traditional
reclamation program, the programs discussed above would still offer
many Priority 3 land and water reclamation opportunities.
We welcome all comments on how these regulations should incorporate
section 402(g)(7) of SMCRA, as amended. Specifically, we encourage
comments on how we should promote the responsible reclamation of
Priority 3 lands and waters while we advance the objectives of
reclaiming all Priority 1 and 2 health and safety problems within the
administrative boundaries of each approved AML program. We also
encourage comments relating to the standards that we have proposed in
Sec. 874.13(b) for Priority 3 sites reclaimed in conjunction with
past, present, and future Priority 1 and 2 projects. We recognize there
is a likelihood of confusion because ``conjunction'' typically means an
``occurrence together in time and space.'' (Merriam-Webster Collegiate
Dictionary, 11th ed. 2003). Thus, we would particularly like to
encourage comments on how we can be consistent with the statutory
standard while minimizing confusion.
Our proposed Sec. 874.13(b)(2) contains only a general direction
that qualifying Priority 3 work should either facilitate the higher
priority work or represent reasonable savings towards the goal of
reclaiming all Priority 3 coal problems. Thus, we are also seeking
comments on possible alternatives or refinements to our proposal. We
would like your opinion on whether Priority 3 work requested by a
property owner as a condition of his or her agreement to provide
written entry to address health and safety problems should fall within
the scope of paragraph (b)(2)(i). What kinds of activities do you think
should be considered as facilitators of higher priority reclamation?
Also, what kinds of cost savings should be considered as ``reasonable''
for our proposed Sec. 874.13(b)(2)(ii)? Should there be any
restrictions on the types of Priority 3 problems or overall cost under
Sec. 874.13(b)(2)? Given that States and Indian tribes can set aside
up to 30 percent of State share or Tribal share funds and historic coal
funds for AMD trusts under section 402(g)(6) of SMCRA, should there be
any restrictions on the expenditure of moneys from the Fund for
Priority 3 AMD projects when applying the ``in conjunction with''
provision? Should the construction of permanent facilities with
perpetual treatment costs qualify? Should the expenditures for Priority
3 reclamation be allowed to exceed the cost of reclaiming the Priority
1 and 2 problems? Should there be any physical or administrative
barriers, such as watershed or mine permit boundaries, property lines,
or environmental constraints associated with Sec. 874.13(b)(2)?
Water Supply Restoration (Sec. 874.14)
We propose to change the title of this section from ``Utilities and
other facilities'' to ``Water supply restoration'' in order to reflect
more accurately the purpose of this section and the changes made by the
2006 amendments to section 403(b) of SMCRA. The existing title of this
section, ``Utilities and other facilities,'' related to former section
403(a)(4) of SMCRA, which made certain public facilities eligible for
reclamation. This was sometimes referred to as ``Priority 4''
reclamation. The 2006 amendments removed section 403(a)(4) and retitled
section 403(b) ``Water Supply Restoration.'' We are changing this
section in a similar fashion.
We note that the language similar to ``utilities and other
facilities'' is also used to describe some noncoal restoration work
that may be completed by certified States and Indian tribes under Sec.
875.15(c). We do not propose to change the language of Sec. 875.15
because the scope of that section involves certified States and Indian
tribes using funds that are not subject to section 403(b) for
utilities, roads, and other community infrastructure. Unlike Sec.
875.15, however, this section only applies to water supplies adversely
affected by coal mining in uncertified States and Indian tribes.
We are proposing to revise paragraph (a) of this section,
consistent with the 2006 amendments, to remove the 30 percent
limitation on grant funds that States and Indian tribes may expend on
water supply restoration. Beginning with grants awarded on or after
December 20, 2006, uncertified States and Indian tribes may expend any
or all of their grants from State or Tribal share funds, historic coal
funds, and prior balance replacement funds for water supply
restoration. Prior balance replacement funds are eligible for such
expenditures because they are specifically directed to be used for the
purposes of section 403 of SMCRA. States and Indian tribes may use
minimum program makeup funding for water supply projects as long as
they represent Priority 1 or 2 problems. Expenditures for water supply
restoration are an optional feature of the reclamation program, and
uncertified States and Indian tribes can decide to what extent they
want to expend funds for water supply projects. The remainder of the
existing section, including eligibility of projects, would remain the
same.
Contractor Eligibility (Sec. 874.16)
We are proposing revisions to Sec. 874.16 to reflect our proposed
changes to the funding applicability section in Sec. 874.11. Our
proposed change would impose the requirement that successful bidders
for an AML contract must also be eligible under Sec. Sec. 773.12,
773.13, and 773.14 to receive a permit or be provisionally issued a
permit to conduct surface coal mining operations at the time of the
contract award to conduct reclamation projects using moneys from the
Fund, prior balance replacement funds provided to uncertified States
and Indian tribes under Sec. 872.29, or a combination of both types of
AML funds.
Part 875--Certification and Noncoal Reclamation
We propose to amend the title of this Part to more accurately
describe the subject matter covered by these regulatons. Also, our
proposed revisions to this Part contain an addition of a new definition
section at Sec. 875.5 and changes to existing Sec. Sec. 875.11
(Applicability), 875.12 (Eligible lands and water prior to
certification), 875.13 (Certification of completion of coal sites),
875.14 (Eligible lands and water subsequent to certification), 875.16
(Exclusion of certain noncoal reclamation sites), and 875.20
(Contractor eligibility). These revisions propose changes to fund
applicability, certification procedures, and how certified States and
Indian tribes must address remaining or newly discovered coal problems.
One
[[Page 35233]]
substantive change we propose is to acknowledge that this Part may not
apply to certified States and Indian tribes when they expend certified
in lieu funds and prior balance replacement funds received under
section 411(h) of SMCRA. Consistent with revised Part 884, certified
States and Indian tribes may choose to modify their reclamation plan to
expend funding on activities not related to the reclamation of noncoal
mine problems, or to undertake noncoal reclamation outside the
framework of this Part.
In addition to requesting your comments on the sections discussed
below, we are also seeking comments on any other sections within this
Part that you may feel are affected by our proposed changes or the 2006
amendments. For example, we are not revising any of the language in
Sec. 875.15 (Reclamation priorities for noncoal program) because we
believe that fund applicability requirements in Part 872 along with any
reclamation plan revisions completed under Part 884 will properly
define how the section applies to a project conducted by a certified
program under this Part. In addition, we are making revisions to Sec.
875.20 (Contractor eligibility) to make clear that contractor
eligibility requirements for certified States and tribes only apply to
coal reclamation work. We did not revise this section to address the
applicability of certified in lieu or prior balance replacement funds
received by certified States and Indian tribes because we believe that
matter is addressed best through revisions to the reclamation plan
under Part 884. We are interested in any comments you may have
concerning that approach.
Definitions (Sec. 875.5)
We propose to add a new section to Part 875 to include the
definition of the term ``Reclamation plan or State reclamation plan.''
The definition is identical to that in proposed Sec. 872.5.
Information Collection (Sec. 875.10)
We propose only to reword this paragraph using plain English and to
use the current format approved by the OMB. It describes OMB's approval
of information collections in Part 875, our use of that information,
and the estimated reporting burden associated with those collections.
Applicability (Sec. 875.11)
Except in connection with the sources of funding that may be used
for reclamation, our proposed revisions to this section make minimal
changes for uncertified States and Indian tribes with approved
reclamation plans. Generally, our proposed changes relate to the use of
certified in lieu funds and prior balance replacement funds by
certified State and Indian tribes because, as explained in Part 872
(Moneys Available to Eligible States and Indian Tribes) and Part 884
(State Reclamation Plans), certified States are not required to spend
these funds according to Part 875.
In paragraph (a) we are proposing that when you, an uncertified
State or Indian tribe, expend State share funds, Tribal share funds,
and historic coal funds for noncoal reclamation, you are subject to the
limitations on the use of those funds contained in this Part and in
proposed Sec. Sec. 872.16, 872.19, or 872.23. This portion of our
proposal does not change the existing requirements and is consistent
with section 409 of SMCRA, which requires that moneys provided by
sections 402(g)(1) and (g)(5) of SMCRA may be used to address high
priority noncoal hazards at the request of the Governor or governing
body of an Indian tribe. 30 U.S.C. 1239(b) and (c). We did not include
minimum program makeup funds or prior balance replacement funds as a
source of moneys that uncertified States may use for noncoal
reclamation under this Part for the reasons discussed in the preamble
to proposed Sec. Sec. 872.28 and 872.31, respectively.
In paragraph (b) we are proposing that you, a certified State or
Indian tribe, may use prior balance replacement funds provided to you
under Sec. 872.29 and certified in lieu funds provided to you under
Sec. 872.32 to address eligible coal problems to maintain
certification as required by Sec. Sec. 875.13 and 875.14.
As discussed in the preamble to proposed Sec. 872.34, before
proposing this regulation, we also considered an alternative where Part
875 requirements would apply to certified in lieu funds received under
Sec. 872.32, but not to prior balance replacement funds unless so
directed by the State legislature or Tribal council. Under this
alternative approach, certified States and Indian tribes would continue
to conduct noncoal reclamation under this Part and would be mandated to
use certified in lieu funds for the reclamation of lands or water
affected by the mining of minerals and materials other than coal.
Reclamation programs would be required to follow the eligibility
requirements of Sec. 875.14, the priorities of Sec. 875.15, the
requirements related to land acquisition in Sec. 875.17, the
contractor eligibility provision in Sec. 875.20, and the limited
liability aspects of Sec. 875.19. Overall, this alternative approach
would require that the certified States and Indian tribes use their
certified in lieu funds to address mining related impacts inside their
boundaries. We specifically request comments on this alternative
approach.
Eligible Lands and Water Prior to Certification (Sec. 875.12)
We are proposing minor revisions to Sec. 875.12. We are revising
the title using plain English. In addition, we are revising Sec.
875.12(c) so that the word ``monies'' will become ``moneys.'' Finally,
we are removing the reference to former Part 888. None of these
revisions result in substantive changes in the application of the
paragraph.
Certification of Completion of Coal Sites (Sec. 875.13)
We are proposing some minor changes to paragraph (a) of this
section that do not result in any change in the authority or scope of
the existing regulation. We are revising the introductory paragraph to
create a lead sentence that clearly states that certification is for
the completion of coal sites, and to reword it using plain English. In
Sec. 875.13(a)(1), we are eliminating the reference to Priorities 4
and 5 of section 403(a) of SMCRA because the 2006 amendments removed
Priorities 4 and 5. 30 U.S.C. 1233(a). No changes were made in
paragraphs (a)(2) and (a)(3) of this section.
We are proposing to add a new paragraph (d) under Sec. 875.13 that
would allow us, on behalf of the Secretary of the Interior, to make the
certification of completion of coal reclamation projects without a
certification request from the Governor of a State or the equivalent
head of an Indian tribe. This paragraph is needed in order to be
consistent with section 411(a)(2) of SMCRA, as revised by the 2006
amendments. 30 U.S.C. 1240a(a)(2). Our proposed paragraph (d) requires
a determination by the Director of OSM based upon the information in
the AML inventory that all coal reclamation projects in your State or
Tribal jurisdiction, which meet the priorities described in Sec.
874.13(a), have been completed. We also propose, consistent with
section 411(a) of SMCRA, to require an opportunity for public comment,
announced through the Federal Register, before we certify a State or
Indian tribe.
Furthermore, we believe that we have the authority to suspend or
remove certification from a State or Indian tribe that is unable or
unwilling to address coal problems once they are known to exist after
certification. At this time we have not proposed specific language to
set forth a certification suspension or removal process. However, we
request comment on whether we should add a
[[Page 35234]]
suspension or removal process in these regulations, and if so, where
such a provision should be added and what it should contain.
Eligible Lands and Water Subsequent to Certification (Sec. 875.14)
We are proposing revisions to the introductory paragraph of Sec.
875.14(a) and paragraph (a)(1) to clarify eligibility dates for noncoal
reclamation performed on Federal lands, waters, and facilities under
the jurisdiction of the Forest Service and the Bureau of Land
Management. We are also revising the title and the section using plain
English. There is no substantive change in the applicability or scope
of these paragraphs.
We are proposing Sec. 875.14(b) to clarify the timing of
reclamation efforts and the sources of funds that may be used to
address coal problems after certification. Under existing Sec.
875.14(b), you, the certified State or Indian tribe, are required to
address coal problems no later than the next grant cycle, subject to
the availability of funds distributed. Under our proposed changes you
must submit to us a plan that describes the approach and funding
sources that you will use to address any coal problems in a timely
manner. While we are not requiring you to use certified in lieu or
prior balance replacement funds, we anticipate that those sources will
most likely be identified in any plans submitted to us. Plans submitted
to us will be reviewed to ensure they represent a timely approach to
reclamation of existing coal problems, and we will monitor your
progress towards completion of the plan. We are retaining the
requirement that any coal reclamation projects, regardless of funding
source, must conform to sections 401 through 410 of SMCRA. 30 U.S.C.
1231-1240.
We are interested in receiving comments on our proposed revisions
to this section. We would like to receive comments on how we might
review any plans submitted and how we might make determinations that
the plans represent timely approaches to addressing remaining coal
reclamation. We would also like comments on whether we should require
the plans submitted under this section to be reviewed and processed as
part of a formal reclamation plan amendment under Sec. 884.15.
Exclusion of Certain Noncoal Reclamation Sites (Sec. 875.16)
We are proposing revisions to Sec. 875.16 to exclude you, an
uncertified State or Indian tribe, from expending moneys from the Fund
or prior balance replacement funds provided under Sec. 872.29 for the
reclamation of sites and areas designated for remedial action pursuant
to the Uranium Mill Tailings Radiation Control Act of 1978, 42 U.S.C.
7901 et seq., or that have been listed for remedial action pursuant to
the Comprehensive Environmental Response Compensation and Liability Act
of 1980, 42 U.S.C. 9601 et seq. Our proposal is to maintain consistency
with the existing prohibitions on the use of moneys from the Fund and
the statutory restrictions on the use of prior balance replacement
funds as explained in the preamble to Sec. 872.29. Certified States
and Indian tribes may use prior balance replacement funds or certified
in lieu funds for these purposes provided they comply with the general
statutory and regulatory restrictions of those funds. We are also
rewording this section using plain English. We invite you to comment on
whether this paragraph is still needed.
Contractor Eligibility (Sec. 875.20)
We are proposing revisions to Sec. 875.20 for clarity and to limit
its applicability. We removed the phrase ``To receive AML funds for
noncoal reclamation'' to clarify that prior balance replacement funds
received by uncertified States and Indian tribes are also subject to
the restrictions of this section. Contracts by certified States and
Indian tribes are also subject to the restrictions of this section when
used to address coal problems as necessary to maintain certification.
However, this section is not intended to apply to use of section 411(h)
funds by certified States and Indian Tribes for any purpose other than
coal AML reclamation.
Part 876--Acid Mine Drainage Treatment and Abatement Program
Along with some minor changes, we are proposing three major changes
to this Part consistent with the 2006 amendments. First, to comply with
amended section 402(g)(6)(A), we propose to raise the previous 10%
limitation on grants for AMD abatement and treatment set-asides to 30%
of annual State or Tribal share and historic coal funds. Second, we
propose to specify the requirements for an uncertified State or Indian
tribe to establish an AMD abatement and treatment fund. Third, we
propose to eliminate the requirements for a State or Indian tribe to
prepare AMD abatement and treatment plans and for those plans to be
approved by the Director of OSM.
The decision by an uncertified State or Indian tribe to establish
an AMD abatement and treatment fund, or to deposit moneys into an
established fund, is optional. Section 403(a) of SMCRA established
health and safety coal AML problems as the top two priorities for
reclamation programs. SMCRA, as revised by the 2006 amendments,
provides uncertified States and Indian tribes with a mechanism for
abating AMD while working on high priority reclamation projects, if the
water resources are adjacent to a high priority problem. 30 U.S.C.
1233(a)(1)(B)(ii) and (a)(2)(B)(ii). We are seeking comments on this
section and under Sec. 874.13 as to whether AMD abatement and
treatment should be included in the types of Priority 3 reclamation
projects subject to the ``adjacent to'' and ``in conjunction with''
provisions discussed in Sec. 874.13.
Information Collection (Sec. 876.10)
We propose only to reword this paragraph using plain English and to
use the current format approved by the OMB. It describes OMB's approval
of information collections in Part 876, our use of that information,
and the estimated reporting burden associated with those collections.
Eligibility (Sec. 876.12)
In the first sentence of paragraph (a), we propose to delete the
reference to the three year time limit for grant expenditures. The 2006
amendments provide for different time limits based on the FY in which
the funds were distributed. Detailing the time restrictions in this
Part is unnecessary because the limits are set out in section
402(g)(1)(D) of SMCRA and Sec. 886.14. Also in this sentence, we
propose to raise the existing 10% cap on deposits to AMD abatement and
treatment funds to 30%, as required by the 2006 amendments, and to make
minor revisions using plain English. We have proposed to delete
paragraph (a)(1) because it referred to the future reclamation set-
aside fund, which is addressed in proposed Part 873. Therefore, we have
moved the requirement that States and Indian tribes create the AMD
funds under their State or Tribal law, which is located in existing
paragraph (a)(2), to the text of the last sentence of proposed Sec.
876.13(a).
In addition, we have revised this subsection to clarify that
section 402(g)(6) of SMCRA establishes that the only moneys from the
Fund that you may set aside for AMD treatment under this section are
those that you receive as State or Tribal share funds under section
402(g)(1) of SMCRA, Sec. Sec. 872.14 and 872.17, or as historic coal
funds under section 402(g)(5) of SMCRA, Sec. 872.21. Therefore, the
funds you
[[Page 35235]]
receive as minimum program make up funds under Sec. 872.26 and prior
balance replacement funds under Sec. 872.29, may not be set aside
under this Part. As indicated in our discussion of Sec. 872.29, we
believe that section 411(h)(1) of SMCRA clearly requires uncertified
States and Indian tribes to use prior balance replacement funds only
for the purposes of section 403 of SMCRA. We have also explained that
generally up to 10% of the funds we awarded to you before December 20,
2006, may be deposited into an AMD abatement and treatment fund.
We have proposed to eliminate former paragraph (b), because it
required States and Indian tribes to spend their AMD abatement and
treatment funds according to a plan approved by the Director. Under the
2006 amendments, the requirements to prepare a plan, consult with the
Natural Resources Conservation Service, or get the Director's approval
were eliminated, so paragraph (b) is no longer needed.
We propose adding a new paragraph (b) that requires an uncertified
State or Indian tribe to establish a special fund account providing for
the earning of interest as required by section 402(g)(6)(A) of SMCRA.
U.S.C. 1232(g)(6)(A). This AMD fund must specify that moneys in it may
only be used for the abatement of the causes and the treatment of the
effects of AMD in a comprehensive manner. We used the modifier
``comprehensive'' in the regulatory text of proposed paragraph (b)(2)
because we propose to delete Sec. 876.13 where ``comprehensive
abatement of the causes and treatment of the effects of acid mine
drainage'' was previously contained.
Also, paragraph (b)(2) requires AMD abatement and treatment
projects to occur within ``qualified hydrologic units.'' We propose to
define ``qualified hydrologic unit'' in new paragraph (c). We removed
this definition from existing Sec. 870.5 of this chapter and added it
to this section for clarity and ease of use because the phrase is used
only in this section. In addition, we reworded the definition slightly
in an attempt to make it easier to understand. We also propose to add a
new paragraph (d) providing that deposits into the State or Tribal AMD
accounts are considered State or Indian tribal moneys.
Plan Content (Sec. 876.13)
We propose to remove this section because the 2006 amendments
eliminated the previous requirement for States and Indian tribes to
prepare AMD abatement and treatment plans.
Plan Approval (Sec. 876.14)
We also propose to remove this section because the 2006 amendments
eliminated the previous requirement for the Secretary to approve AMD
abatement and treatment plans that were prepared by the States and
Indian tribes.
Part 879--Acquisition, Management, and Disposition of Lands and Water
Definitions (Sec. 879.5)
We propose to add a new section to Part 879 to include the
definition of the term ``Reclamation plan or State reclamation plan.''
This definition is identical to the one contained in proposed Sec.
872.5.
Information Collection (Sec. 879.10)
We propose to remove Sec. 879.10 because the information
collection requirements contained in Part 879 have been approved by OMB
under the grants provisions for Part 886 and assigned clearance number
1029-0059.
Land Eligible for Acquisition (Sec. 879.11)
In addition to minor plain English revisions, this proposed section
is modified to incorporate the appropriate references to prior balance
replacement funds received by uncertified programs under section
411(h)(1) of SMCRA and Sec. 872.29. We are proposing to revise Sec.
879.11(a), (b), and (c) to remove references that restrict land
acquisition to moneys that States and Indian tribes receive from the
Fund because the prior balance replacement funds to uncertified States
are derived from the Treasury. We believe that uncertified States and
Indian tribes can use prior balance replacement funds to acquire land
as part of their obligation under section 411(h)(1)(D)(ii) to use the
moneys for the purposes described in section 403 of SMCRA.
We are also proposing to move the definition of ``permanent
facility'' from Sec. 870.5 to Sec. 879.11(a)(2) for clarity and ease
of use because that term is primarily used in that section. In
addition, we modified the definition slightly by changing the phrase
``any manipulation or modification of the surface'' to ``any
manipulation or modification of the site'' to accommodate the
possibility that permanent facilities may not always be located on the
surface of the land. Some permanent facilities may be located
underground to control drainage or prevent AMD.
While our revisions indicate that this proposed section only
applies to uncertified States and Indian tribes and us, we are seeking
comment on how this Part would be implemented under certified State and
Indian tribal reclamation plans that commit certified in lieu funds,
prior balance replacement funds, or both towards the reclamation of
noncoal problems under the requirements of Part 875. For example, we
would like to receive comments on how land acquisition, management, and
disposal requirements would apply to certified programs using prior
balance replacement funds or certified in lieu funds under Sec. Sec.
872.29 and 872.32, respectively. Furthermore, we would like comments on
how to handle any proceeds resulting for the disposition of property by
certified States and Indian tribes when implementing Sec. 879.15.
Disposition of Reclaimed Land (Sec. 879.15)
We propose to revise the language in existing Sec. 879.15 to
remove the provision (h) which states that ``all moneys received from
disposal of land under this Part shall be deposited in the appropriate
Abandoned Mine Reclamation Fund in accordance with 30 CFR Part 872 of
this chapter.'' We propose to replace this provision with the
requirement that funds be returned to us, and that we will implement
the requirements of Sec. Sec. 885.19 and 886.20. Proposed Sec. Sec.
885.19 and 886.20 direct the disposition of unused funds, particularly
those that are deobligated. This revision is necessary because States
and Indian tribes may acquire land with moneys from the Fund or from
the Treasury when implementing coal and noncoal reclamation under their
approved reclamation plan.
Part 880--Mine Fire Control
Definitions (Sec. 880.5)
We propose to add a new section to Part 880 to include the
definition of the term ``Reclamation plan or State reclamation plan.''
This definition is identical to the one contained in proposed Sec.
872.5.
Part 882--Reclamation on Private Land
Information Collection (Sec. 882.10)
We propose only to reword this paragraph using plain English and to
use the current format approved by the OMB. It describes OMB's approval
of information collections in Part 882, our use of that information,
and the estimated reporting burden associated with those collections.
Liens (Sec. 882.13)
Consistent with the 2006 amendments' revision of section 408(a) of
SMCRA, in paragraph (a)(1) we propose to remove the authority for
[[Page 35236]]
liens to be placed against property for the sole reason that the owners
purchased the property after May 2, 1977. 30 U.S.C. 1238(a). We are
also replacing the word ``shall'' with ``must'' in accordance with
plain English.
Part 884--State Reclamation Plans
With the exception of Sec. 884.11 and Sec. 884.17, both discussed
specifically below, and the addition of a definitions section at Sec.
884.5, we are not proposing any changes to the regulations under Part
884. However, we do want to clarify and seek comments on the
implementation of Part 884 provisions as they relate to the prior
balance replacement funds and certified in lieu funds as discussed in
the preamble to Part 872.
As discussed under Part 872, prior balance replacement funds and
certified in lieu funds provided under sections 411(h)(1) and 411(h)(2)
of SMCRA, respectively, are Treasury funds and not moneys from the
Fund. Consistent with the language of section 411(h)(1), we are
proposing revisions to Part 872 that specify that 411(h)(1) funds are
to be used by uncertified States and Tribes for the purposes of section
403 of SMCRA and by certified States and Tribes for purposes
established by the State legislature or Tribal council with priority
given to the impacts of mineral development. In addition, our revised
Part 872 proposes that certified programs may use certified in lieu
funds for any purpose, even purposes not covered by this subchapter.
In light of these changes to Part 872, we propose to clarify in
Part 884 that the requirement to maintain an approved reclamation plan
continues to apply to all States and Indian tribes, regardless of
certification status under section 411(a) of SMCRA. This proposed
clarification is consistent with section 405(h) of SMCRA which requires
a State or Indian tribe to have an approved reclamation plan to receive
a grant. 30 U.S.C. 1235(h).
Because certified and uncertified States and Indian tribes will
receive funding from different sources (the Fund and Treasury funds)
and for different purposes, we expect that their reclamation plans may
vary in scope and content. For example, prior balance replacement funds
provided to uncertified States and Indian tribes must be used for the
purposes of section 403 of SMCRA and are not subject to the Priority 3
reclamation restrictions under section 402(g)(7). Because we have
historically interpreted section 403 of SMCRA to mean that expenditures
must ``reflect the * * * priorities in the order stated,'' the
reclamation plans for uncertified programs may reflect different
approaches to addressing Priority 3 problems with prior balance
replacement funds.
Under these proposed rules, the reclamation plans for certified
programs will potentially show an even greater range of variability
with little specificity required beyond undertaking the coal work
necessary to maintain certification. In addition, if certified States
and Indian tribes choose to conduct noncoal reclamation in accordance
with Part 875 using certified in lieu funds or prior balance
replacement funds, their reclamation plan must continue to provide all
of the information and the assurances that are central to operating
under the Part 875 umbrella. Only under these circumstances could State
or Indian tribe noncoal reclamation activities continue to enjoy the
protection of the limited liability provisions of Sec. 875.19 for
those efforts.
On the other hand, certified programs may also modify their
reclamation plans to disclose how they would commit their grant funding
to purposes other than noncoal reclamation in accordance with Part 875.
In such instances, reclamation plans must contain the basic information
needed for these programs to continue to receive grants, disclose how
any existing or newly discovered coal problems will be addressed, and
contain descriptions in sufficient detail to demonstrate that
activities to be funded do not fall under the reclamation objectives of
subchapter R.
Because our proposed changes and clarifications under this and
other Parts represent a change in application of reclamation plan
requirements, we are seeking your comments on how we should implement
the Part 884 requirements for certified and uncertified States and
Indian tribes. We would like your comments on the types of information
you believe that uncertified programs and certified programs should
maintain in approved reclamation plans.
Definitions (Sec. 884.5)
We propose to add a new section to Part 884 to include the
definition of the term ``Reclamation plan or State reclamation plan.''
This definition is identical to the one contained in proposed Sec.
872.5.
State Eligibility (Sec. 884.11)
Existing Sec. 884.11 requires a State with eligible lands and
water to submit a reclamation plan, which we cannot approve unless the
State has an approved regulatory program that is consistent with other
requirements of SMCRA and its implementing regulations except as
discussed below. We are proposing several revisions to this section.
First, we are updating the citation to the definition of ``eligible
lands and water'' because we have proposed to move that definition from
Sec. 870.5 to Sec. 700.5. In addition, we are adding the appropriate
reference to Indian tribes because section 405(k) of SMCRA authorizes
the Navajo, Hopi, and Crow Indian tribes to have an approved
reclamation plan without having an approved regulatory program. 30
U.S.C. 1235(k); see also 30 CFR Part 756.
More substantively, we also want to use this proposed section to
clarify how Tennessee and Missouri are affected by this requirement to
have and maintain a reclamation plan in light of the statutory
direction under section 402(g)(8) of SMCRA, as revised by the 2006
amendments. As discussed in the preamble to Sec. 872.26, section
402(g)(8)(A) of SMCRA provides that each State and Indian tribal
reclamation program will receive a minimum amount of funding to address
Priority 1 and 2 problems. Section 402(g)(8)(B) states that the minimum
program make up funding will apply to Tennessee and Missouri
``notwithstanding any other provision of law.'' 30 U.S.C.
1232(g)(8)(B). Previously, we did not award reclamation grants to
States when they no longer maintained an approved regulatory program
under section 503 of SMCRA.
We believe that the 2006 amendments now mandate that Tennessee and
Missouri receive minimum program make up funding under section
402(g)(8)(A), and that they should receive grants in spite of the
section 405(c) requirement to have an approved State regulatory program
under section 503 of SMCRA. We propose to clarify in Sec. 884.11 that
so long as Tennessee and Missouri maintain an approved reclamation
program, they may receive grants and modify their reclamation plans as
long as the funds are necessary according to section 402(g)(8)(A) of
SMCRA. We are interested in receiving your comments on our provisions
and preamble discussion relative to providing section 402(g)(8) funding
to Tennessee and Missouri.
Other Uses by Certified States and Indian Tribes (Sec. 884.17)
The proposed revisions to paragraph (b) of this section change the
grant application reference from Sec. 886.15 to Sec. 885.13 to be
consistent with our proposal to create a new Part 885 for certified
State and Indian tribal program
[[Page 35237]]
grant application procedures. Under our proposed regulations, certified
States and Indian tribes have significant discretion in how to use
certified in lieu or prior balance replacement funds. Therefore, we
have changed the heading and wording of this section to reflect that
greater discretion.
Part 885--Grants to Certified States and Indian Tribes
We propose to add this new Part to provide different rules for
Title IV grants to certified States and Indian tribes. Previously,
Title IV grants to all States and Indian tribes were administered
pursuant to Part 886. This Part recognizes that the 2006 amendments
gave certified States and Indian tribes broad authority and discretion
over grant activities and expenditures. In proposed Sec. 872.31, we
propose that certified States and Indian tribes may spend prior balance
replacement funds for the purposes established by the State legislature
or the Tribal council with priority given to addressing the impacts of
mineral development. In addition, Sec. 872.34 allows certified States
and Indian tribes to spend certified in lieu funds for any purpose.
Because of the wide flexibility and discretion given to States and
Indian tribes in the 2006 amendments, we recognize that certified
States and Indian tribes should not be required to comply with all the
restrictions governing uncertified States and Indian tribes using AML
funds under existing Part 886. Instead, we have drafted Part 885 to
reflect OSM's limited role after coal reclamation is completed.
What does this Part do? (Sec. 885.1)
This proposed section specifies that this Part provides procedures
for grants to certified States and Indian tribes only. It includes a
reference to OSM's guidance on reclamation programs (66 FR 31250), but
provides it as an optional information source that certified States and
Indian tribes may use if they choose to conduct reclamation projects.
Definitions (Sec. 885.5)
We propose this section to include definitions of the terms
``award,'' ``distribute,'' and ``reclamation plan or State reclamation
plan.'' These definitions are identical to those in proposed Sec.
872.5.
Information Collection (Sec. 885.10)
The information collection section refers to all Title IV grants
because we currently have an information collection clearance from OMB
for existing Part 886, which covers all Title IV grants to all eligible
certified and uncertified States and Indian tribes. We propose to
change Part 886 by limiting it to grants to uncertified States and
Indian tribes and to add new Part 885 for grants to certified States
and Indian tribes. Though the information collection burden for grants
will be split between the two Parts, the total burden will remain the
same. We expect to notify OMB of the change and to reflect both Parts
in future clearance actions.
Who is eligible for a grant? (Sec. 885.11)
This proposed section establishes that only certified States or
Indian tribes with an approved reclamation plan are eligible for grants
under this Part. We believe that certified States and Indian tribes are
still required by section 405 of SMCRA to have an approved reclamation
plan in order to receive grants under SMCRA.
What can I use grant funds for? (Sec. 885.12)
This proposed section describes how you, a certified State or
Indian tribe, may use funds awarded in Title IV grants. Paragraph (a)
proposes that grant funds awarded to certified States and Indian tribes
can only be used for activities authorized in SMCRA and either included
in your reclamation plan or described in your grant application. The
description in the plan or application may be very general; for
example, we expect that a certified State could amend its plan to
specify that it will expend prior balance replacement funds for
purposes established by the State legislature, with priority given to
addressing the impacts of mineral development. In addition, we propose
to include the option of describing activities in the grant application
in order to provide you with a method to request funds under the new
authorities in the 2006 amendments before your plan has been amended.
This paragraph also allows you to choose to use these grant moneys to
administer your program.
Paragraph (b) provides that you may use grant funds in the ways
established for each type of funding you receive. It describes the
types of funds and refers you to the sections in Part 872 of this
chapter describing how you may use the various types of funds. We
expect most funding for certified States and Indian tribes to come from
prior balance replacement funds and certified in lieu funds. We are
including a provision in this paragraph to allow you to receive and use
other moneys from the Fund because we recognize that you may still have
State share or Tribal share funds that were distributed to you before
October 1, 2007, but not awarded or expended. We do not plan to use the
provision in section 401(f)(3)(B) of SMCRA that certified States and
Indian tribes are no longer eligible to receive State or Tribal share
funds after October 1, 2007, retroactively to take back funds that were
already distributed to you before that date. These moneys from the Fund
will still be subject to noncoal reclamation rules in Part 875.
Paragraph (c) proposes that you may use grant funds for any costs
determined to be allowable under OMB's cost principles.
What are the maximum grant amounts? (Sec. 885.13)
Proposed paragraph (a) allows you to apply for a grant of any or
all available funds at any time.
Paragraph (b) states how we determine the amount of Title IV funds
available to your State or Indian tribe, which is:
The current annual AML distribution;
Plus any funds distributed in previous years that were not
awarded in a grant;
Plus any funds distributed in previous years that were
awarded but were subsequently deobligated from a grant; but
Minus any funds already awarded to you this fiscal year.
Paragraph (c) provides that current FY funds will not be available
for award until after we complete the annual distribution, which will
occur after we receive fee collections for coal produced in the final
quarter of the previous fiscal year.
Paragraph (d) requires us to give you current information on the
amounts and types of funds that are available for award. In the
immediate future, we expect to meet this requirement by providing a
report similar to our current share balance report to you whenever you
request it, but the report and the process will likely change over
time. If you have suggestions about how we can better meet your
financial information needs, we encourage you to comment.
How long is my grant? (Sec. 885.14)
The performance period of your grant will be the period of time you
request in your grant application. This proposed section does not
establish any requirements for how long your grants should be or how
many grants you may have open at any time. The proposed rule would
allow you to change the pattern under Part 886 of annual awards of new
grants with one year for administrative costs and three years for
project costs. However, we are concerned about the administrative
[[Page 35238]]
burden of managing grants which are open for very long periods. We
would appreciate your comments on this proposal. If we were to set a
period limitation, would you prefer 3 years, 5 years, 10 years, or some
other period?
How do I apply for a grant? (Sec. 885.15)
In this section, we are proposing the application procedures for
certified States and Indian tribes to receive Title IV grant awards.
Our goal is to make these procedures as brief and simple as possible.
We encourage your suggestions for further streamlining these
procedures.
Paragraph (a) mandates that you must use the application forms and
procedures that we specify. We are not proposing to specify in these
rules exactly what information we will require because the information
we need is likely to evolve over time based upon changing laws and OMB
requirements for Federal grants. Based on current grant requirements,
we expect that your current application will include:
(1) Cover page, the government-wide SF-424 form or an electronic
equivalent, with a signature or electronic approval, and summary
information about you and the proposed project, which we need to
complete reports which we are required to make public on all assistance
awards;
(2) High-level budget breakdown separating the award into general
categories or subaccounts, such as noncoal reclamation costs and non-
reclamation activity costs, which we need to enter the award into our
accounting system and generate national information on Title IV program
funds;
(3) Narrative explanation of your program, which may be as brief as
``carry out our approved reclamation plan''; and
(4) Certifications and assurances required by law. You must certify
that you meet legal requirements for lobbying, drug-free workplace, and
debarment and suspension. You must assure us that you will comply with
Federal laws and regulations such as nondiscrimination statutes.
Paragraph (b) requires us to award your grant agreement as soon as
practicable, but no later than 30 days after we receive your complete
application. This timeline is reduced from 60 days in Part 886 for
uncertified States and Indian tribes because we expect it will take us
less time to process awards to you. Paragraph (c) proposes that if your
application is not complete, we must notify you as soon as practicable
of what additional information we need to process the award. Paragraph
(d) proposes that you agree to perform the grant in accordance with
SMCRA, all applicable Federal laws, including nondiscrimination
statutes, and applicable Federal regulations, including those issued by
OMB and Treasury.
After OSM approves my grant, what responsibilities do I have? (Sec.
885.16)
This proposed section covers the formal grant agreement and your
operations under it. Paragraph (a) requires us to send you a written
grant agreement when we award you a grant. The agreement sets out the
terms of the award, such as the amount of funds and the grant beginning
and ending dates. Paragraph (b) provides that you may subgrant
functions and funds to other organizations, but that you will still be
responsible for administration of the grant, including funds and
reporting. Paragraph (c) provides that funds are obligated when we
approve the grant agreement. It goes on to provide that you accept the
grant by starting work or drawing down funds under it. This is a change
from the procedure in the existing Part 886 that requires you to
countersign the award and return it to us to document your acceptance
of the grant.
In paragraph (d), we are proposing that you are responsible for
ensuring that all applicable laws, clearances, permits, or requirements
are met before you expend funds. This provision is intended as a new
requirement for certified States and Indian tribes conducting
activities other than coal reclamation under our regulations in Part
874 of this chapter. A certified State or Indian tribe has very wide
discretion over the use of grant funds. When you conduct activities
other than coal reclamation as necessary to maintain certification, you
will decide which activities to fund. Because no Federal decision
authorizing individual expenditures will be made, OSM will not conduct
or approve NEPA or other clearance procedures for such activities. In
contrast, paragraph (e) proposes that when you reclaim coal projects
under our regulations in Part 874, we are jointly responsible with you
for compliance with NEPA and any other laws, clearances, permits or
requirements. This alternate provision is the same as the existing
requirement for grants under Part 886. We believe that OSM has
responsibility and involvement for compliance matters only for coal
reclamation projects meeting our regulations in Part 874.
Proposed paragraph (f) requires that public facilities constructed
with grant funds should use fuel other than petroleum or natural gas to
the extent technologically and economically feasible. This requirement
is included in these rules because of Executive Order 12185, which is
applicable to all Federal funds. Proposed paragraph (g) requires you
not to commit or spend more funds than we have awarded. It provides
that our award of a grant does not obligate us to award continuation
grants or grant amendments providing more funds to cover cost overruns.
This does not affect our annual mandatory distributions to you under
section 411(h) of SMCRA.
How can my grant be amended? (Sec. 885.17)
This proposed section describes the procedures to amend an existing
grant. In paragraph (a), we define an amendment as a change to the
terms or conditions of your grant agreement. We note that either you or
we may initiate an amendment action. Paragraph (b) requires either you
or us to inform the other in writing as soon as practicable when an
amendment becomes necessary. Paragraph (c) requires that all
requirements and procedures for grant amendments follow the ``Grants
Common Rule.'' Among other matters, the Grants Common Rule includes
provisions about what types of changes do and do not require our
approval. Proposed paragraph (d) requires us to award your amendment
within 20 days of receiving your request. This timeline is reduced from
30 days in Part 886.
What audit, accounting, and administrative requirements must I meet?
(Sec. 885.18)
This proposed section requires you and us to follow standard
procedures from OMB for grants management actions. We propose to adopt
these procedures as they stand without adding any additional agency or
program requirements. Paragraph (a) requires you to comply with OMB's
audit requirements. Paragraph (b) requires you to follow the procedures
in the ``Grants Common Rule'' for accounting, advance or reimbursement
cash payments, records, and property.
What happens to unused funds from my grant? (Sec. 885.19)
This proposed section describes how we will handle any funds
awarded in grants but not expended. Unused funds must be taken out of
the completed grant when we close it out. At your request, we will
either award the funds in a new grant or in a grant amendment to
increase funding in an existing grant. Because section 402(i)(4) of
SMCRA provides that Treasury funds for payments under sections
411(h)(1) and
[[Page 35239]]
(2) will remain available until expended, any distributed funds that
you do not request or expend in an award will be reserved for use only
by your State or Indian tribe until you do expend them. 30 U.S.C.
1232(i)(4).
What must I report? (Sec. 885.20)
This proposed section describes the information you must report to
us about your grant. This proposal attempts to reduce reporting
requirements to the minimum information we need in order to report the
accomplishments and expenditures of the national Title IV program. We
encourage you to comment with any suggestions for streamlining these
procedures.
Paragraph (a) mandates that you annually report to us about each of
your grants. You must report performance information, telling us what
your program has accomplished, and financial information, telling us
what grant funds your program has spent. Proposed paragraph (b)
requires you to report performance and financial information to us at
the end of each grant so that we can close out the grant in our system.
Proposed paragraph (c) requires you to maintain a current list in the
AML inventory of any known AML problems. Paragraph (1) requires you, if
you complete any mine reclamation projects, to report project
accomplishments with grant funds in the AML inventory annually as
required by section 403(c) of SMCRA. Paragraph (2) reflects the new
requirement in section 403(c) that we must approve proposed amendments
to the AML inventory made by States and Indian tribes. 30 U.S.C.
1233(c). The provision is included here because it is possible that
certified States and Indian tribes will need to make amendments to the
AML inventory. In this paragraph, we are proposing to define
``amendment'' to mean any new coal problem under section 403(a) or
section 403(b) of SMCRA that is added to the system after December 20,
2006. We do not intend for this provision to require our approval to
add noncoal problems, but if you conduct projects under Part 875 you
must enter them in the AML inventory.
What happens if I do not comply with applicable Federal law or the
terms of my grant? (Sec. 885.21)
This section proposes that if you fail to comply with your grant
award or a Federal law or regulation, we will take appropriate action.
The Grants Common Rule provides remedies for noncompliance including
withholding cash payments, suspending or terminating the grant, and
taking other legal actions. We must follow the procedures in the Grants
Common Rule when we take any enforcement action.
When and how can my grant be terminated for convenience? (Sec. 885.22)
This section proposes to allow either you or us to terminate the
grant for convenience if that should become appropriate. We must follow
the procedures in the Grants Common Rule.
Part 886--Reclamation Grants to Uncertified States and Indian Tribes
This Part describes the procedures for you, the uncertified State
or Indian tribe, and for us, OSM, to use in applying, awarding,
managing, and closing grants authorized by SMCRA, as revised by the
2006 amendments. Existing Part 886 covered all reclamation grants, but
because we are proposing a new Part 885 for grants to certified States
and Indian tribes, we propose to limit this Part to grants to
uncertified States and Indian tribes only. Throughout this Part, we
changed section titles to a question format in order to make it easier
to use.
What does this Part do? (Sec. 886.1)
In this section, we added ``uncertified'' to limit this Part to
grants to uncertified States and Indian tribes. We updated the
reference to ``OSM's Final Guidelines for Reclamation Programs and
Projects'' from the 1980 version in the existing regulations to the
current version published in 2001. 66 FR 31250. In addition, we
reworded this section using plain English.
Authority (Sec. 886.3)
We propose to delete this section because it is unnecessary and
duplicative. Information about grant amounts is provided in proposed
Sec. 886.13.
Definitions (Sec. 886.5)
We propose to add a new section to Part 886 defining the terms
``award,'' ``distribute,'' and ``reclamation plan or State reclamation
plan.'' These definitions are identical to those in proposed Sec.
872.5.
Information Collection (Sec. 886.10)
We propose to reword this paragraph using plain English and to use
the current format approved by OMB. It describes OMB's approval of
information collections under Part 886, our use of that information,
and the estimated reporting burden associated with those collections.
In the future, these information collections will apply to fewer States
and Indian tribes because of the new Part 885. We expect to notify OMB
of the change and to reflect both Parts in future clearance actions.
Who is eligible for a grant? (Sec. 886.11)
We added language to this paragraph to specify that this Part
applies to grants to uncertified States and Indian tribes only. This
Part will no longer apply to States and Indian tribes that have
certified completion of coal reclamation under section 411(a) of SMCRA
and will receive grants under the new Part 885.
What can I use grant funds for? (Sec. 886.12)
We propose to reword existing paragraph (a) using plain English. We
also propose to move the existing provision about OMB cost principles
from this paragraph to new paragraph (e). In proposed paragraph (b), we
reworded the provision about our reclamation grants. We also propose to
move the existing provision about fuels to be used in public facilities
to proposed Sec. 886.16(f), because it is more closely related to that
section than to the main topic of this paragraph. We propose to add a
new paragraph (c) to this section requiring you to use each type of
funds according to the provisions in Part 872 of this chapter. The
paragraph lists each type of funds that may be awarded in an AML grant
to an uncertified State or Tribe and references the section number
which governs its use. We propose to move existing paragraph (c) to
paragraph (d), reword it using plain English, and correct a spelling
error. Finally, we propose to add new paragraph (e) requiring you to
use grant funds only for costs that are allowable according to OMB cost
principles in Circular A-87. This expands the provision in existing
paragraph (a) that costs for services and materials from other State,
Federal and local agencies are governed by the cost principles. OMB
cost principles must be used to determine the allowability of costs
from all sources.
What are the maximum grant amounts? (Sec. 886.13)
We propose to move existing Sec. 886.13 to proposed Sec. 886.14
and to add this new section establishing and clarifying our current
grant procedures. Proposed paragraph (a) allows you to apply for a
grant of any or all available funds at any time. Paragraph (b) states
how we determine the amount of funds available to your State or Tribe:
The current annual AML distribution;
Plus any funds distributed in previous years that were not
awarded in a grant;
[[Page 35240]]
Plus any funds distributed in previous years that were
awarded but were subsequently deobligated from a grant; but
Minus any funds already awarded to you this fiscal year.
Proposed paragraph (c) provides that current FY funds will not be
available for award until after we complete the annual distribution,
which will occur after we receive fee collections for coal produced in
the final quarter of the previous fiscal year. This provision reflects
the change from appropriated funding to mandatory distributions as
established in the 2006 amendments.
Proposed paragraph (d) requires us to give you current information
on the amounts and types of funds that are available for award. In the
immediate future, we expect to meet this requirement by providing a
report similar to our current share balance report to you whenever you
request it, but the report and the process will likely change over
time. If you have suggestions about how we can better meet your
financial information needs, we encourage you to comment.
How long will my grant be? (Sec. 886.14)
We propose to delete existing Sec. 886.14, ``Annual submission of
budget information,'' which requires you to submit budget estimates and
information for our use in preparing appropriation requests for
reclamation grants. We no longer need estimates for appropriation
requests. Instead we propose to recodify existing Sec. 886.13 as Sec.
886.14 and revise it to reflect the way we are currently organizing AML
grants. Since 1993, we have used the ``simplified'' grants concept to
combine all AML grant funding in a single annual grant. Each grant
normally lasts for three years. Each grant has subaccounts for
different functions such as administration costs, coal reclamation
projects, water projects, and emergency administration and project
costs. These subaccounts remain open for different periods of time.
Administrative accounts normally stay open for one year, so that only
one account is active at any one time. Project cost accounts normally
last for three years to allow for planning, design, construction, and
completion of reclamation projects.
Proposed Sec. 886.14(a) is the existing Sec. 886.13(b) reworded
using plain English. Proposed Sec. 886.14(b) establishes three years
as the normal grant period. Proposed Sec. 886.14(c) allows us to
extend the grant period if you request it. We will normally extend a
grant once for up to one additional year, following our established
practice. We may allow more or longer extensions in special or unusual
circumstances. Proposed Sec. 886.14(d), which establishes one year as
the normal period for administrative accounts, is the existing Sec.
886.13(a) reworded using plain English.
We also propose to add Sec. 886.14(e) to allow us to lengthen the
time period for new or amended AML grants that contain State share or
Tribal share funds distributed during FY 2008, 2009, and 2010 for up to
five years at your request. We proposed this revision to comply with
the new provision in section 402(g)(1)(D) of SMCRA that requires that
State share and Tribal share funds that are not expended within 3 years
after the date of any grant award (except for grants during FY 2008,
2009, and 2010 to the extent not expended within 5 years), will be
transferred to historic coal share funds. 30 U.S.C. 1232(g)(1)(D).
An alternative approach to this provision would be to award all
grants in FY 2008-2010 for five years. However, we expect that in many
cases uncertified States and Indian tribes will be able to expend the
State or Tribal share funds within the normal three year grant period.
If we were to automatically award all grants to five years, the
administrative burden on you and us to track, manage, and report on
open grants would increase. We believe that our proposal to allow new
awards or extension amendments for up to five years at your request
when you need the additional time will eliminate an unnecessary burden
in managing all the grants that can be completed sooner.
How do I apply for a grant? (Sec. 886.15)
In paragraph (a), we propose to remove a provision that a
preapplication is not required under certain conditions. We do not
require a preapplication for AML grants. In paragraph (b), we propose
to remove the requirement that we must prepare and sign the grant
agreement because this provision was duplicated in Sec. 886.16, which
is a more appropriate location. We reworded this entire section using
plain English.
After OSM approves my grant, what responsibilities do I have? (Sec.
886.16)
We revised this entire section to reflect the electronic processing
of our grant awards, to remove references to signatures and other
paper-based procedures, and to use plain English. In addition, we added
language to paragraph (e) to reflect the 2006 amendments' changes to
the AML inventory under section 403(c) of SMCRA. We describe specific
changes to the content of this regulation below.
To begin, we propose revising paragraph (a) to remove the
requirements that a grant agreement include a statement of the work to
be covered and a statement of required approvals and conditions. We
removed these requirements because our electronic grant system does not
display such information clearly and effectively in agreement
documents. All required information is normally included in your
application and reclamation plan, as well as our regulations and
directives.
Next, we propose to revise paragraph (c) in order to remove the
requirement that you countersign the grant agreement within 20 days to
accept the award or we will deobligate the grant amount. Instead, we
propose that you accept the agreement when you initiate work under the
grant or first draw down any funds. We made this change when we
implemented our electronic grant system to eliminate unnecessary
processing.
We propose to revise paragraph (d) to clarify our existing ATP
process. Although funds are obligated when the grant is awarded, you
must not expend construction funds on an individual project until you
and we have ensured that we are in compliance with NEPA and all other
applicable laws and requirements. We send you a written ATP to confirm
that we have completed the compliance actions and that you may expend
funds on construction of that project.
We propose revising paragraph (e) to reflect section 403(c) of
SMCRA that now requires proposed amendments to the AML inventory that
are made by States and Indian tribes to be approved by OSM, acting for
the Secretary. 30 U.S.C. 1233(c). In this paragraph, we are proposing
to define ``amendment'' to mean any new coal problem under section
403(a) or section 403(b) of SMCRA that is added to the system after
December 20, 2006. In addition, we are proposing that the term
``amendment'' would also include instances where you, the State or
Indian tribe, elevate a Priority 3 coal problem contained in the AML
inventory to either Priority 1 or Priority 2 status. We are proposing
these changes to be consistent with section 403(c) of SMCRA, and also
section 402(g)(2), which requires us to ensure strict compliance by
uncertified States and Indian tribes with the priorities described in
section 403(a) of SMCRA. Problems will normally be approved and entered
in the AML inventory when identified, before you begin development,
design and construction activities, but our approval may occur during
the ATP process if the problem
[[Page 35241]]
has not previously been approved. Non-emergency problems must be
approved and entered in the AML inventory before we approve the ATP.
We do not intend for this provision to require our approval for a
30% AMD set-aside, or noncoal work conducted by uncertified States
under section 409 of SMCRA, or for salaries or administrative costs of
the AML program. With the exception of those instances where Priority 3
inventory problems are being elevated to a Priority 1 or Priority 2, we
also do not intend for this provision to require our approval for
subsequent revisions to coal problems once they have been included in
the AML inventory. This provision does not change existing procedures
where States and Indian tribes routinely update the AML inventory at
the time projects are funded or completed.
Under Sec. 886.16(e)(1), we are proposing that our approval of an
emergency project under section 410 of SMCRA, which is our ATP for the
emergency project, also constitutes our approval to place the coal
problems being addressed by the emergency into the AML inventory. We
are proposing this process for emergency projects because the
declaration of an emergency by us confirms that the problem is a danger
to the public health, safety, or general welfare under section
410(a)(1) of SMCRA.
In paragraph (e)(2), we propose to add the approval requirement in
section 403(c) so that you cannot use funds for project development,
design, or construction of new coal reclamation projects before we have
approved the problems for inclusion in the AML inventory. This
paragraph would apply only to coal reclamation problems added to the
AML inventory after December 20, 2006. We believe this proposal helps
fulfill our responsibility under section 402(g)(2) to ensure strict
compliance by uncertified States and Indian tribes with the priorities
described in section 403(a) of SMCRA. 30 U.S.C. 1232(g)(2). Requiring
AML coal problems to be in the AML inventory prior to the development
of designs will promote coordination between us and uncertified States
and Indian tribes early in the planning process. This early
coordination will help eliminate the potential for agency conflict
after property owners have been promised reclamation and substantial
design funding has been spent. Finally, requiring AML coal problems to
be in the AML inventory before the development of designs would spread
out our review workload and potentially expedite later project ATP
reviews because field staff would already be familiar with the proposed
project area.
The provision in paragraph (f) was moved here from the last
sentence of existing regulation Sec. 886.12(b) because we believe it
is more appropriate in this section as a separate paragraph. The
requirement that public facilities constructed with grant funds should
use fuel other than petroleum or natural gas to the extent
technologically and economically feasible is from Executive Order 12185
and applies to all Federal funds.
In proposed paragraph (g), we added an introductory sentence
advising you that you must not expend more funds than we have awarded.
The remainder of the paragraph is existing Sec. 886.16(f), which
provides that we are not committed to award additional funds for cost
overruns.
How can my grant be amended? (Sec. 886.17)
We propose to move the requirement that grant amendment procedures
must follow the Grants Common Rule from the last sentence of existing
paragraph (a) to new paragraph (c). In paragraph (b), we deleted the
second sentence, with specific conditions which require an advance
amendment, because we believe it is unnecessary. The Grants Common Rule
provides sufficient information on amendment requirements, and we will
address how these requirements apply to many specific types of grant
changes in our directives. We renumbered existing paragraph (c) to (d).
We also reworded this section using plain English.
What audit and administrative requirements must I meet? (Sec. 886.18)
We propose to move and divide existing Sec. 886.18 into proposed
Sec. Sec. 886.20, 886.23, 886.24, 886.25, and 886.26. Proposed Sec.
886.18 is a combination of two short existing sections, Sec. Sec.
886.19 and 886.20. Proposed paragraph (a) contains the audit
requirement from existing Sec. 886.19, which we updated by deleting
the reference to the General Accounting Office and adding OMB Circular
A-133. Paragraph (b) is from the existing Sec. 886.20 on
administrative procedures. We deleted the existing requirement that you
use our property inventory form because the form is now optional. In
addition, this section now refers to the Grants Common Rule, which
provides sufficient information on property management requirements.
Specific requirements and forms will be addressed in our directives. We
reworded this section using plain English.
How must I account for grant funds? (Sec. 886.19)
As explained above, we moved existing Sec. 886.19 to proposed
886.18(a). We moved the content of existing Sec. 886.22, ``Financial
management,'' to this proposed section in order to group the management
sections together. We also reworded it using plain English.
What happens to unused funds from my grant? (Sec. 886.20)
We propose to move existing Sec. 886.20 to proposed Sec.
886.18(b) and add a new section here to clarify how we will treat
unused grant funds. However, portions of this section are based on
existing Sec. 886.18(a)(2) and on the fourth and fifth sentences of
existing Sec. Sec. 872.11(b)(1) and (b)(2). Grant funds may be left
unexpended at the end of a grant due to changes during the grant period
such as increases or decreases in project scope or reclamation costs.
Changes may also occur after the end of a grant period that reduce the
total funds expended under the grant, such as the receipt of funds from
the sale of property. We also consider unawarded funds, moneys which
have been distributed to a State or Indian tribe but not awarded in a
grant, as unused funds.
Proposed paragraph (a) explains that we will deobligate all
unexpended funds from a completed grant agreement in order to close it
out and describes how we will treat unexpended funds. Paragraph (a)(1)
is based on existing Sec. 886.18(a)(2), which allows us to reduce your
grant if you fail to obligate funds within three years of the grant
award. We propose to modify this provision to address section
402(g)(1)(D) of SMCRA, as revised in the 2006 amendments, which
mandates that State and Tribal share funds that are not spent within 3
years, or 5 years for funds distributed in FY 2008, 2009, or 2010, must
be made available for expenditure as historic coal funds. 30 U.S.C.
1232(g)(1)(D). Our proposed paragraph (1) of this section requires us
to transfer any State share funds or Tribal share funds that
uncertified States and Indian tribes do not expend within 3 years, or 5
years for FY 2008, 2009, or 2010 funds, from that State or Indian tribe
to historic coal funds. We will distribute transferred funds to
uncertified States and Indian tribes at the next annual distribution
using the prescribed historic coal formula described in proposed Sec.
872.22. In proposed paragraph (a)(2), we propose to hold any unused
Federal expense funds, such as State emergency program funds, for
distribution to any State or Indian tribe which needs them for the
specific
[[Page 35242]]
activity for which Congress appropriated the funds. Finally, paragraph
(3) specifies that unused funds of all other types will be made
available for inclusion in a grant to the State or Indian tribe for
which we originally distributed the funds.
Paragraph (b) provides that we will transfer any State or Tribal
share funds that have not been awarded in a grant within three years of
the date we distributed them to you, or five years for funds
distributed in FY 2008, 2009, or 2010, to historic coal funds in the
same way that we transfer unused funds under paragraph (a)(1). We are
proposing to add this paragraph because we believe that funds that have
not been requested and approved for award within 3 or 5 years of the
distribution date are unneeded and should be transferred to other
States and Indian tribes that can use them more efficiently. We are
interested in your comments on this proposal.
What must I report? (Sec. 886.21)
We propose to delete existing Sec. 886.21 because this topic is
addressed in Sec. 886.12. This proposed section was moved from Sec.
886.23 to improve readability. The existing paragraph (a) in Sec.
886.23 required you to submit to us every year the reporting forms that
we specified. We are proposing to replace this paragraph with a
requirement that each year you report to us the program performance and
financial information that we specify. We propose not to establish a
uniform method for you to submit this information because allowing you
to use various forms, formats, and methods to submit your annual
reports will make it less of a burden on you.
The existing paragraph (b) combines two different reporting
requirements by requiring you to submit an OSM-76 inventory form upon
project completion and any other closeout reports we specify. We
propose to clarify this requirement by separating the AML inventory and
grant closeout requirements. Proposed paragraph (b) covers the reports
you must provide us upon completion of each grant. These are final
performance and financial reports, as well as property and any other
reports that we specify. Proposed paragraph (c) requires you to update
the AML inventory upon completing each reclamation project. Removing
this item from the grant closeout requirements clarifies that you must
update the AML inventory as you complete each project rather than
waiting until the grant is completed.
What records must I maintain? (Sec. 886.22)
As proposed, existing Sec. 886.22 was moved to Sec. 886.19. This
proposed section was moved from existing Sec. 886.24 and reworded
using plain English. To clarify that this section covers all records,
programmatic as well as accounting, we added a sentence noting that
your records must support all the information you reported to us for
your grant.
What actions can OSM take if I do not comply with the terms of my
grant? (Sec. 886.23)
We propose to move existing Sec. 886.23 to proposed Sec. 886.21
and to divide the existing Sec. 886.18, ``Grant reduction, suspension
and termination,'' into five sections for clarification. One section
was already described in proposed Sec. 886.20. This is the first of
four additional proposed new sections, which will be followed by
Sec. Sec. 886.24, 886.25, and 886.26.
Proposed paragraph (a) of this section begins with the existing
paragraph Sec. 886.18(b), which lists various actions we may choose to
take for noncompliance, ranging from temporarily withholding cash
payments to terminating your grant. We deleted the existing paragraph
Sec. 886.18(a)(1), which duplicated some of these provisions.
Proposed Sec. 886.23(b) is based on existing paragraph (a)(3) and
requires us to terminate your reclamation grant if we terminate your
regulatory administration and enforcement grant. We propose to modify
this to state the exceptions to this requirement provided in SMCRA for
the States of Missouri and Tennessee in section 402(g)(8)(B), and for
the Navajo, Hopi, and Crow Indian tribes in section 405(k). In
addition, we reworded this entire section using plain English.
Proposed Sec. 886.23(c) is moved from existing Sec. 886.18(a)(5).
Likewise, proposed Sec. 886.23(d) is moved from existing paragraph
(a)(6). This proposed paragraph is modified to require us to take
appropriate remedial action for overdue reports up to terminating the
grant, rather than providing no option but termination. Proposed Sec.
886.23(e) was moved from existing Sec. 886.18(a)(7). Similarly,
proposed Sec. 886.23(f) was moved from existing Sec. 886.18(a)(4).
These paragraphs were reworded using plain English.
What procedures will OSM follow to reduce, suspend, or terminate my
grant? (Sec. 886.24)
We propose to move existing Sec. 886.24 to Sec. 886.22. This
proposed Sec. 886.24 is another section we have separated from
existing Sec. 886.18. This section was taken from the existing Sec.
886.18(c)(1) through (c)(6) and reworded using plain English. Existing
Sec. 886.18(c)(7) was taken out of this section and moved to proposed
new Sec. 886.26 because termination for convenience does not require
the procedures for adverse actions provided in this section.
How can I appeal a decision to reduce, suspend, or terminate my grant?
(Sec. 886.25)
Under our proposal, existing Sec. 886.25 was reworded and
renumbered as Sec. 886.27. This section, split from existing Sec.
886.18, was taken from paragraph (d) of that section. In addition, the
final appeal authority was changed from the Secretary to the Department
of the Interior's Office of Hearings and Appeals. The section was
reworded using plain English.
When and how can my grant be terminated for convenience? (Sec. 886.26)
This proposed new paragraph was separated from the existing Sec.
886.18(c)(7) to distinguish it from the unilateral reduction,
suspension, or termination procedures in that section. A termination
for convenience is a joint decision and procedures are much simpler.
What special procedures apply to Indian lands not subject to an
approved Tribal reclamation program? (Sec. 886.27)
This proposed new section was renumbered from Sec. 886.25. The
reference in paragraph (d) to a particular type of funding in Part 872
was also updated.
Part 887--Subsidence Insurance Program Grants
Throughout this Part, we added references to Indian tribes to
clarify that Indian tribes may choose to establish a subsidence
insurance program under the same rules as States.
Scope (Sec. 887.1)
We added references to Indian tribes wherever the existing rule
says States.
Authority (Sec. 887.3)
We propose to delete this section because it is unnecessary and
duplicative.
Definitions (Sec. 887.5)
We propose to expand the term ``State administered'' defined in
this section to ``State or Indian tribe administered.'' We also propose
to reword two definitions (``Self-sustaining'' and ``State or Indian
tribe administered'') to add other
[[Page 35243]]
references to Indian tribes and to use plain English. We also propose
to include the definition of the term ``reclamation plan or State
reclamation plan'' as it is defined in proposed Sec. 872.5.
Information Collection (Sec. 887.10)
We propose rewording this paragraph to add references to Indian
tribes, to use plain English, and to use the current format approved by
the OMB. This paragraph describes OMB's approval of information
collections in Part 887, our use of that information, and the estimated
reporting burden associated with those collections.
Eligibility for Grants (Sec. 887.11)
The existing section allows only State or Tribal share funds to be
used for subsidence insurance programs. We propose adding language to
allow certified States and Indian tribes to fund this program with
prior balance replacement funds if their State legislature or Tribal
council establishes that use, or with certified in lieu funds.
Coverage and Amount of Grants (Sec. 887.12)
We are proposing to revise paragraph (b) to add a reference to the
proposed new Part 885 for grants to certified States and Indian tribes.
We are proposing to revise paragraph (c) to clarify that the funding
limit of $3 million is cumulative over the lifetime of the program. In
addition, we also reworded this section using plain English.
Grant Period (Sec. 887.13)
Grant Administration Requirements and Procedures (Sec. 887.15)
We reworded these sections using plain English and updated Sec.
887.15 to include proposed Part 885.
IV. Public Comment Procedures
Written Comments: If you submit written comments, they should be
specific, confined to issues pertinent to the proposed rule, and
explain the reason for any recommended changes. We appreciate all
comments, but those most useful and likely to influence decisions on
any revisions will be those that either involve personal experience or
include citations to and analyses of SMCRA, its legislative history,
its implementing regulations, the 2006 amendments, case law, or other
pertinent State or Federal laws or regulations.
We cannot ensure that comments received after the close of the
comment period (see DATES) will be included in the docket for the
rulemaking and considered. Comments sent to an address other than those
listed above (see ADDRESSES) will not be included in the docket for the
rulemaking.
Public Availability of Comments: Before including your address,
phone number, e-mail address, or other personal identifying information
in your comment, you should be aware that your entire comment--
including your personal identifying information--may be made publicly
available at any time. While you can ask us in your comment to withhold
your personal identifying information from public review, we cannot
guarantee that we will be able to do so.
Public hearings: We will only hold a public hearing on the proposed
rule upon request. The time, date, and address for any hearing will be
announced in the Federal Register at least 7 days prior to the hearing.
Any person interested in participating in a hearing should inform
Mr. Lytton (see FOR FURTHER INFORMATION CONTACT), either orally or in
writing by 5 p.m., Eastern Time, on July 11, 2008. If no one has
contacted Mr. Lytton to express an interest in participating in a
hearing by that date, a hearing will not be held. If there is only
limited interest, a public meeting or teleconference rather than a
hearing may be held, with the results included in the docket for this
rulemaking.
The public hearing on the specified date will continue until all
persons scheduled to speak have been heard. If you are in the audience
and have not been scheduled to speak and wish to do so, you will be
allowed to speak after those who have been scheduled. We will end the
hearing after all persons scheduled to speak and persons present in the
audience who wish to speak have been heard. To assist the transcriber
and ensure an accurate record, we request, if possible, that each
person who testifies at a public hearing provide us with a written copy
of his or her testimony.
Public meeting: If there is only limited interest in a hearing at a
particular location, a public meeting or teleconference, rather than a
public hearing, may be held. People wishing to meet with us to discuss
the proposed rule may request a meeting by contacting Mr. Lytton (See
FOR FURTHER INFORMATION CONTACT). All meetings will be open to the
public and, if possible, notice of the meetings will be posted at the
appropriate locations listed under ADDRESSES. A written summary of each
public meeting or teleconference will be made a part of the docket for
this rulemaking.
V. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This proposed rule is considered an ``economically significant
regulatory action'' under the criteria of section 3(f) of Executive
Order 12866 and has been reviewed by the Office of Management and
Budget. Based on the criteria for an ``economically significant
regulatory action'' found in section 3(f), we have made a preliminary
determination that:
a. The rule may raise novel legal or policy issues arising from
legal mandates, the President's priorities, or the principles set forth
in the Executive Order.
b. The rule would not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
c. The rule would not materially alter the budgetary impacts of
entitlements, grants, user fees, or loan programs or the rights or
obligations of their recipients. However, as discussed below, grants to
States and Indian tribes have increased, as required by the provisions
of the 2006 amendments.
d. The rule would not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities. The rule would align our regulations with statutory
provisions contained in the 2006 amendments pertaining to the
collection of reclamation fees and the distribution of money from the
Fund and Treasury in the form of mandatory grants to States and Indian
tribes. The provisions of the 2006 amendments have an annual effect on
the economy of $100 million or more. Coal operators subject to the
extension of the fee and the new rates received actual notice before
they became effective. These new fees have already been collected for
the two quarters beginning October 1, 2007 and ending March 31, 2008.
In addition, we have already distributed approximately $274 million in
FY 2008 mandatory grants to the States and Indian tribes.
Assessment of Potential Costs and Benefits
Executive Order 12866 requires OSM to conduct an assessment of the
potential costs and benefits of any regulatory action deemed
significant under Executive Order 12866. OMB Circular A-4 provides
guidance to Federal agencies on the development of a regulatory
analysis. It requires us to identify a baseline because benefits and
costs are defined in comparison with a clearly stated alternative. OMB
has
[[Page 35244]]
stated that ``this normally will be a `no action' baseline: what the
world will be like if the proposed rule is not adopted.'' OMB Circular
A-4, Regulatory Analysis (Sept. 17, 2003). As previously stated, the
new fee rates have gone into effect and are being paid and the grant
distributions mandated by the 2006 amendments have been made for FY
2008. These statutory changes are already in effect regardless of
whether this proposed rule is finalized. For comparison purposes, OSM
will use as the ``no action baseline'' the fee rates paid by operators
and grant distribution requirements for States and Indian tribes that
would have been in effect if the 2006 amendments had not been signed
into law. We will refer to this as the ``old law'' or the ``no action
alternative.'' The second alternative we will analyze consists of the
requirements pertaining to fee collections and grant distributions to
States and Indian tribes established by the 2006 amendments. We will
refer to this as the 2006 amendments alternative.
The basic difference between the two alternatives is the cost to
the coal operators and the Treasury and the resulting benefits
quantified in terms of the acres of environmental problems that can be
reclaimed. Under the old law, the fee rates that would have been in
effect on October 1, 2007, would have been the rates established using
the formula specified in our existing regulations at 30 CFR 870.13(b).
Those fee rates would be paid for approximately 13-14 years. They would
be established before the start of each fiscal year and would be based
on estimates of coal production and the amount of the interest
transferred to the CBF for that year. The fees for each year would have
been structured to replace the amount of money transferred to the CBF
at the beginning of the year (generally the amount of interest that the
Fund earns that year, subject to a $70 million cap, with corrections
for adjustments to previous transfers and differences between estimated
and actual coal production in prior years). The purpose of the fee was
to reimburse the Fund for the interest transferred to the CBF. Under
the old law alternative, the money in the Fund would have been
exhausted in approximately 13-14 years--after which time, no more money
would have been available for reclamation projects and no interest
would have been transferred to the CBF.
Under the old law, grants would have been made based on the amount
of money appropriated each year by Congress. Uncertified States and
Indian tribes would be required to use the money for AML reclamation
projects. Certified States and Indian tribes would be required to use
the money for noncoal reclamation as specified in existing Sec.
875.15. Pursuant to existing Sec. 875.15, certified States and Indian
tribes could use any money that they received for reclamation projects
involving the restoration of lands and water adversely affected by past
mineral mining, projects involving the protection, repair, replacement,
construction, or enhancement of utilities (such as those relating to
water supply, roads, and other such facilities serving the public
adversely affected by mineral mining and processing practices), and the
construction of public facilities in communities impacted by coal or
other mineral mining and processing practices.
As explained in the preamble, the 2006 amendments both extended the
reclamation fee for 14 years and provided for a two-step reduction in
the amount of the fee rate from the rate originally established in
1977. The statutory fee rates were reduced by 10 percent from the
levels established in 1977, for the period from October 1, 2007,
through September 30, 2012. The fee rates will again be reduced by
another 10 percent from the levels established in 1977 for the period
from October 1, 2012, through September 30, 2021. The fee rates under
2006 amendments are specified in the proposed rule at Sec. 870.13. The
fee rates for 2007-2012 will range from 31.5 cents per ton down to 9
cents per ton.
While the rates established by the 2006 amendments are lower than
the 1977 rates, they are higher than the rates that would have been
established under existing Sec. 870.13(b), which would have gone into
effect had the 2006 amendments not been enacted into law. Fee rates
under existing Sec. 870.13(b) for years 2007-2012 were estimated to
range as follow:
----------------------------------------------------------------------------------------------------------------
Fees for non- Fees for non-
lignite coal lignite coal Fees for
produced by produced by lignite coal
Fiscal year surface underground (cents per
methods (cents methods (cents short ton)
per short ton) per short ton)
----------------------------------------------------------------------------------------------------------------
2007............................................................ 8.5 3.7 2.4
2008............................................................ 8.5 3.6 2.4
2009............................................................ 7.8 3.4 2.2
2010............................................................ 7.3 3.1 2.1
2011............................................................ 2.6 1.1 0.7
2012............................................................ 2.0 0.9 0.6
----------------------------------------------------------------------------------------------------------------
In addition to the fee rate extension, the 2006 amendments also
require that:
1. Once fully phased in, the majority of the distributions to
States and Indian tribes of moneys annually collected from the
reclamation fee will be made outside of the appropriations process. 30
U.S.C. 1231(d).
2. All States and Indian tribes with approved reclamation programs
will be paid amounts equal to their portion of the unappropriated prior
balance of State and Tribal share funds as of September 30, 2007. 30
U.S.C. 1240a(h)(1)(A). These payments are mandatory distributions from
Treasury funds and will be made in seven equal annual installments that
began in FY 2008. 30 U.S.C. 1232(i)(2) and 1240a(h)(1)(C). Uncertified
States and Indian tribes must use these prior balance replacement funds
for the purposes of section 403 of SMCRA. 30 U.S.C. 1240a(h)(1)(D)(ii).
Certified States and Indian tribes must use these payments for purposes
established by their State legislature or Tribal council, ``with
priority given for addressing the impacts of mineral development.'' 30
U.S.C. 1240a(h)(1)(D)(i).
3. Subject to certain limitations, to the extent premium payments
and other revenue sources do not meet the financial needs of the UMWA
health care plans, all unappropriated past
[[Page 35245]]
interest earnings and all future interest earned by the Fund must be
transferred to these plans, together with any remaining unappropriated
balance in the RAMP allocation, which the 2006 amendments repealed. 30
U.S.C. 1232(h). In addition, the three UMWA health care plans are
eligible to receive Treasury transfers to cover any remaining deficit,
subject to certain limitations. 30 U.S.C. 1232(i).
In general, under the old law and the 2006 amendments, the type of
coal reclamation problems that would be remediated, mainly by the
uncertified States and Indian tribes, would be the most serious AML
problems (Priority 1 and Priority 2 also referred to as ``high
priority'' problems). High priority AML problems include:
Clogged Streams;
Clogged Stream Lands;
Dangerous Piles or Embankments;
Dangerous Highwalls;
Dangerous Impoundments;
Dangerous Slides;
Hazardous or Explosive Gases;
Hazardous Equipment or Facilities;
Hazardous Recreational Water Bodies;
Industrial or Residential Waste;
Portals;
Polluted Water: Agricultural/Industrial;
Polluted Water: Human Consumption;
Subsidence-Prone Areas;
Surface Burning;
Underground Mine Fires; and
Vertical Openings.
Under the old law, certified States and Indian tribes were required
to use grant money for noncoal reclamation. Under the 2006 amendments,
certified States and Indian tribes must use prior balance replacement
funds for purposes established by the State legislature or Tribal
council, with priority given for addressing the impacts of mineral
development. Exactly what these purposes will be is undetermined at
this time.
In the proposed rule, certified States and Indian tribes are
allowed to use certified in lieu funds for any purpose they deem
appropriate. In the preamble discussion for proposed Sec. 872.34, we
are seeking comment on an alternative which would require certified
States and Indian tribes to use the money for noncoal reclamation.
Under this alternative, we assume that the same types of activity would
continue as are required by our existing regulations. Noncoal
reclamation activities have included reclamation activities at
abandoned mines affected by hard rock mining operations and sand and
gravel operations. Also, in communities impacted by coal or other
mineral mining, funds have been used for the construction of public
facilities such as schools, hospitals, and water treatment plants.
Under either alternative, we assume that States and Indian tribes will
use the money for the public good but the wide discretion given to the
States and Indian tribes makes any meaningful discussion of the effects
too speculative.
Summary of Costs and Benefits
The following two tables summarize the costs and benefits under the
no action alternative and the 2006 amendments alternative.
Table 1 indicates the estimated costs associated with each
alternative. Under the no action alternative, the cost to operators is
approximately $612 million. This sum consists of the fees that
operators would pay under our current regulations at Sec. 870.13(b).
Under the 2006 amendments alternative, the estimated cost is
approximately $6.9 billion. This sum consists of: (1) The fees
operators will pay under the rates established by the 2006 amendments;
(2) money from the general fund of the Treasury that we are required to
transfer to certified and uncertified States and Indian tribes for
their share of the prior unappropriated balance; and (3) Treasury funds
that will be transferred to certified States and Tribes as in lieu
funds equal to 50% of fees collected on coal produced in their State or
on Tribal lands. This sum does not include money that we will pay to
the UMWA under the 2006 amendments because those payments are not
addressed in this proposed rule. .
Table 1.--Estimated Costs Associated With the Alternatives From October 1, 2007-September 30, 2021
----------------------------------------------------------------------------------------------------------------
Estimated costs to
operators for fees
paid under the old
law from October
1, 2007 thru
September 30, 2021
(the 1977 fee Estimated costs to Estimated costs to
rates at Sec. operators for fees the Federal
870.13(a) paid under the Treasury (for Estimated total
Alternatives terminate on 2006 amendments prior balance costs
September 30, from October 1, replacement funds
2007; new fee 2007 thru and certified in
rates at Sec. September 30, 2021 lieu funds)
870.13(b)
sufficient to
replenish interest
transferred to CBF
take effect)
----------------------------------------------------------------------------------------------------------------
A................. B................. C................. D
2. 2006 Amendments.............. .................. $4.1 billion...... $2.8 billion...... $6.9 billion.
----------------------------------------------------------------------------------------------------------------
Table 2 indicates the estimated benefits expressed in acres of land
reclaimed. Column A indicates the estimated total amount of money
available for reclamation under each alternative. Column B indicates
acres of high priority sites that need to be reclaimed under each
alternative. Column C indicates the estimated acres of high priority
sites that can be reclaimed with the funds available under each
alternative. In Column D, D1 indicates the estimated acres of high
priority coal sites that would not be reclaimed under the no action
alternative because of insufficient funds. D2 indicates the estimated
additional reclamation that could be achieved under the 2006
amendments. For uncertified States and Indian tribes, the additional
reclamation would be at Priority 1 and 2 sites, Priority 3 sites, and
noncoal reclamation. For certified States and Indian tribes, the
reclamation could be at newly discovered Priority 1, 2, and 3 coal
sites, and noncoal reclamation. However, as previously discussed, under
the 2006 amendments, certified States and Indian tribes may use prior
balance replacement funds for purposes established by the State
legislature or Tribal council, with priority given for addressing the
impacts of mineral development; we are proposing in the rule that they
may use certified in lieu funds for any purpose.
[[Page 35246]]
Therefore, the $1.981 billion dollars that will come from Treasury
funds may be used for coal and noncoal reclamation but it also may be
used for other undetermined purposes. We assume that certified States
and Indian tribes will use the money for the public good, as they have
in the past, but the wide discretion given to the States and Indian
tribes make any meaningful discussion of the actual benefits
speculative.
Table 2.--Estimated Benefits Expressed in Acres of Land Reclaimed
----------------------------------------------------------------------------------------------------------------
P1 and P2
sites acres Estimated Estimated number of
Amount of money identified number of acres of land
estimated to be with high acres of unreclaimed (D1) or
Alternatives available for priority identified additional
reclamation ($ environmental problems reclamation possible
rounded in millions) problems that reclaimed with after P1 and P2 sites
need available completed (D2)
reclamation funds
----------------------------------------------------------------------------------------------------------------
A.................... B C D
2. 2006 Amendments................ $6,027.6............. 210,379 210,379 210,257.
Uncertified States and Indian $4,045.7 (Source: 208,131 208,131 60,284.
tribes. prior balance
replacement funds,
50% State share, 30%
historic coal share
and 3% estimated
minimum program
share).
Certified States and Indian tribes $1,981.9 (Source: 2,248 2,248 149,973 (under 2006
prior balance amendments, funds
replacement funds are not committed to
and certified in reclamation).
lieu funds).
----------------------------------------------------------------------------------------------------------------
Note: For activity beyond FY 2023, an additional estimated amount available for reclamation of $1.6 billion is
projected to be used to reclaim an additional 106,000 acres.
As can be seen from the above tables, under the no action
alternative the cost to industry would be approximately $612 million,
but there would be approximately 52,442 acres of Priority 1 and
Priority 2 coal sites left unreclaimed. Under the 2006 amendments
alternative, the cost to industry would be substantially greater,
approximately $4.1 billion, but that amount in combination with the
$2.8 billion in Treasury funds would be sufficient to reclaim all
Priority 1 and Priority 2 sites. In addition, there would be additional
funds remaining which could be used for reclamation at Priority 3
sites, for noncoal reclamation projects, construction of public
facilities, and for other purposes deemed appropriate by the State or
Indian tribe.
In addition to the quantifiable benefits expressed in acres
reclaimed, unquantifiable benefits also result. These include:
Reduction or elimination in health and safety problems,
which would benefit nearby residents;
Reduction or elimination of adverse environmental effects
such as acid mine drainage and erosion and sedimentation;
Improved habitat for fish and wildlife;
Increased employment opportunities for those employed by
the reclamation projects;
An increase in the number of potential land uses at these
sites and a reduction or elimination of hazardous features that are
often attractive but dangerous to outdoor recreationists; and
General increase in the quality of life in nearby
communities and adjacent property values.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
requires that a Federal agency, when developing proposed and final
regulations, consider the impact of its regulations on small entities.
If a proposed rule is expected to have a significant economic impact on
a substantial number of small entities, the agency must prepare an
initial regulatory flexibility analysis. If a proposed rule is not
expected to have a significant economic impact on a substantial number
of small entities the agency is not required to perform an initial
regulatory flexibility analysis and may certify in the rule that the
rule would not have a significant economic impact on a substantial
number of small entities under the RFA.
The Small Business Administration size standards for small
businesses in the coal mining industry are established by the North
American Industry Classification System Codes (NAICS). NAICS classifies
the ``coal mining ``industry under Code 2121; subsets of this sector
include ``Bituminous Coal and Lignite Surface Mining'' code 212111;
``Bituminous Coal Underground Mining'' code 212112; and ``Anthracite
Mining'' code 212113. The size standards established for each of these
categories is 500 employees or less for each business concern and
associated affiliates. Data available from the U.S. Census Bureau and
from the Mine Safety and Health Administration indicates that over 90
percent of those engaged in coal mining operations are considered small
entities.
As previously stated, it is the 2006 amendments which require coal
operators to pay reclamation fees. Those subject to the fees received
individual letters informing them of the fee and the extension of time
during which the fee must be paid. Approximately $135 million has
already been collected. The proposed rule merely reflects the extension
of our statutory authority to collect reclamation fees for an
additional fourteen years. Based on these facts, the Department of the
Interior certifies that the proposed rule would not have a significant
economic
[[Page 35247]]
impact on a substantial number of small entities under the RFA.
The administrative and procedural provisions in the rule are not
expected to have an adverse economic impact on the regulated industry
including small entities. The increased grant funding to States and
Indian tribes required by the 2006 amendments is expected to provide
increased contracting opportunities for firms, including small
entities, to do reclamation-related work. Further, the proposed rule is
not expected to produce adverse effects on competition, employment,
investment, productivity, innovation, or the ability of United States
enterprises to compete with foreign-based enterprises in domestic or
export markets.
Small Business Regulatory Enforcement Fairness Act
OSM does not consider the proposed rule to be a major rule under 5
U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act
for the following reasons.
a. The provisions of the 2006 amendments pertaining to the new fee
rates and grant requirements are self-implementing. Coal operators
subject to the new rates received actual notice of the rates and of the
extension of the time during which they must be paid. They have already
begun to pay the fee at the new rate, and for the two quarters
beginning October 1, 2007 and ending March 31, 2008, we already
collected approximately $135 million in reclamation fees. In addition,
we have already distributed approximately $274 million in FY 2008
mandatory grants to the States and Indian tribes. The proposed rule
merely aligns our regulations with the self-implementing provisions of
the 2006 amendments.
b. The proposed rule would not cause a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions.
c. The proposed rule would not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises for the reasons stated above.
Unfunded Mandates
This proposed 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, Tribal, or local governments or the private sector. A
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1501 et seq.) is not required.
Executive Order 12630--Takings
In accordance with Executive Order 12630, the proposed rule does
not have significant takings implications. The proposed rule is not a
governmental action capable of interference with constitutionally
protected property rights. A takings implication assessment is not
required.
Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this proposed rule does not unduly burden
the judicial system and meets the requirements of sections 3(a) and
3(b)(2) of the Order.
Executive Order 13132--Federalism
We have reviewed the proposed rule under the criteria specified in
Executive Order 13132 and have determined that the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. The proposed rule does not preempt State law, it
does not impose substantial direct compliance costs on State and local
governments, it does not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government.
As required by section 6 of the executive order, we consulted with
representatives of States and Indian tribes early in the process of
developing the proposed rule. In January, February, and May 2007, we
met with representatives of States and Indian tribes with approved
reclamation programs at meetings hosted by the Interstate Mining
Compact Commission (IMCC) and the National Association of Abandoned
Mine Land Programs (NAAMLP) to notify the States and Indian tribes of
the 2006 amendments' changes to SMCRA and to seek their input on the
amendments. The IMCC and NAAMLP subsequently submitted joint written
comments on specific provisions of the amendments. We considered all
the comments we received in developing the proposed rule. The
consultations and concerns that were expressed are discussed above in
``II. Outreach, Guidance, and Comments.'' Based on input the Department
received after issuance of the Solicitor's Memorandum Opinion, one or
more States may object to several provisions in these proposed rules,
but we believe that the 2006 amendments and other applicable statutes
mandate adoption of these particular provisions. We do not have the
option of adopting any other interpretation.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
Executive Order 13175 requires that Federal agencies consult with
potentially affected Indian Tribal governments before taking any
actions (including promulgation of regulations) that may have a
substantial direct effect on one of more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes. In addition, section 5 of that order
requires the agency to prepare a Tribal summary impact statement for
regulations that impose compliance costs on Tribal governments or that
preempt Tribal law. The summary statement must be included in the
preamble to the final rule.
We have determined that this proposed rule will have some effect on
the three Indian tribes with AML programs, with changes in annual
funding and increased discretion over the use of funds, but that this
effect is not substantial. The rule does not impose compliance costs on
Tribal governments or preempt Tribal law. Indian Tribal representatives
were invited to informal meetings in January, February, and May of
2007, in which OSM met with State and Indian Tribal reclamation
programs to get input on the 2006 amendments.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed rule is not considered a significant energy action
under Executive Order 13211. The proposed revisions would not have a
significant effect on the supply, distribution, or use of energy.
Paperwork Reduction Act
In accordance with 44 U.S.C. 3507(d), OSM has submitted the
following request for information collection and recordkeeping
authority for 30 CFR 785 to the Office of Management and Budget (OMB)
for review and approval:
Title: 30 CFR 785--Requirements for permits for special categories
of mining.
OMB Control Number: 1029-0040.
Summary: The information is being collected to meet the
requirements of sections 507, 508, 510, 515, 701 and 711 of Pub. L. 95-
87, which requires
[[Page 35248]]
applicants for special types of mining activities to provide
descriptions, maps, plans and data of the proposed activity. This
information will be used by the regulatory authority in determining if
the applicant can meet the applicable performance standards for the
special type of mining activity. Response is required to obtain a
benefit.
Bureau Form Number: None.
Frequency of Collection: Once.
Description of Respondents: Applicants for coalmine permits and
State Regulatory Authorities.
Total Annual Responses: 387.
Total Annual Burden Hours: 24,442.
Total Non-Wage Costs: 0.
Information Collection Summary For 30 CFR Part 785
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of
Section applicant State Hours per Hours per Total hours Current ICB Changes to
responses responses applicant State requested hours ICB
--------------------------------------------------------------------------------------------------------------------------------------------------------
785.13....................................................... 6 6 110 40 900 900 0
785.14....................................................... 4 4 250 420 2,680 2,680 0
785.15....................................................... 50 50 150 40 9,500 9,500 0
785.16....................................................... 5 5 10 40 250 250 0
785.17....................................................... 6 6 60 10 420 420 0
785.18....................................................... 7 6 10 10 130 130 0
785.19....................................................... 1 1 300 7 307 307 0
785.20....................................................... 35 34 25 30 1,895 1,895 0
785.22....................................................... 1 1 40 24 64 64 0
785.25....................................................... 80 79 80 79 8,296 0 8,296
------------------------------------------------------------------------------------------
Total.................................................... 195 192 ........... ........... 24,442 16,146 8,296
--------------------------------------------------------------------------------------------------------------------------------------------------------
Under the Paperwork Reduction Act, OSM must obtain OMB approval of
all information and recordkeeping requirements. No person is required
to respond to an information collection request unless the form or
regulation requesting the information has a currently valid OMB control
(clearance) number. The control number appears in section 785.10. To
obtain a copy of OSM's information collection clearance request contact
John A. Trelease at (202) 208-2783 or by e-mail at [email protected].
Comments are invited on:
(a) Whether the proposed collection of information is necessary for
SMCRA regulatory authorities to implement their responsibilities,
including whether the information will have practical utility;
(b) The accuracy of OSM's estimate of the burden of the proposed
collection of information;
(c) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(d) Ways to minimize the burden of collection on the respondents.
By law, OMB must respond to OSM within 60 days of publication of
this proposed rule, but may respond as soon as 30 days after
publication. Therefore, to ensure consideration by OMB, you must send
comments regarding these burden estimates or any other aspect of these
information collection and recordkeeping requirements by July 21, 2008
to the Office of Management and Budget, Office of Information and
Regulatory Affairs, Attention: Interior Desk Officer, via e-mail to
[email protected], or via facsimile to (202) 395-6566. Also,
please send a copy of your comments to John A. Trelease, Office of
Surface Mining Reclamation and Enforcement, 1951 Constitution Ave, NW.,
Room 202 SIB, Washington, DC 20240, or electronically to
[email protected]. Please include the OMB control number, 1029-0040,
at the top of your correspondence.
National Environmental Policy Act
OSM has determined that these proposed regulations are
categorically excluded from the National Environmental Policy Act
(NEPA), 42 U.S.C. 4332(2)(C), pursuant to Department Manual 516 DM
2.3A(2), Section 1.10 of 516 DM 2, Appendix 1. In addition, we have
determined that none of the ``extraordinary circumstances'' exceptions
to the categorical exclusion applies.
Data Quality Act
In developing this rule we did not conduct or use a study,
experiment, or survey requiring peer review under the Data Quality Act
(Pub. L. 106-554).
Clarity of This Regulation
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this proposed rule easier to understand, including answers to questions
such as the following: (1) Are the requirements in the proposed rule
clearly stated? (2) Does the proposed rule contain technical language
or jargon that interferes with its clarity? (3) Does the format of the
proposed rule (grouping and order of sections, use of headings,
paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be
easier to understand if it were divided into more (but shorter)
sections? (A ``section'' appears in bold type and is preceded by the
symbol ``Sec. '' and a numbered heading; for example, Sec. 700.5);
(5) Is the description of the proposed rule in the SUPPLEMENTARY
INFORMATION section of this preamble helpful in understanding the
proposed rule? (6) What else could we do to make the proposed rule
easier to understand? Send a copy of any comments that concern how we
could make this proposed rule easier to understand to: Office of
Regulatory Affairs, Department of the Interior, Room 7229, 1849 C
Street, NW., Washington, DC 20240. You may also e-mail the comments to
this address: [email protected].
List of Subjects
30 CFR Part 700
Administrative practice and procedure, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 724
Administrative practice and procedure, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 773
Administrative practice and procedure, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
[[Page 35249]]
30 CFR Part 785
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
30 CFR Part 816
Environmental protection, Reporting and recordkeeping requirements,
Surface mining.
30 CFR Part 817
Environmental protection, Reporting and recordkeeping requirements,
Underground mining.
30 CFR Part 845
Administrative practice and procedure, Law enforcement, Penalties,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 846
Administrative practice and procedure, Penalties, Surface mining,
Underground mining.
30 CFR Part 870
Abandoned Mine Reclamation Fund, Reclamation fees, Reporting and
recordkeeping requirements, Surface mining, Underground mining.
30 CFR Part 872
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Surface mining, Underground mining.
30 CFR Part 873
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Surface mining, Underground mining.
30 CFR Part 874
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 875
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 876
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 879
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Surface mining, Underground mining.
30 CFR Part 880
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 882
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 884
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 885
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 886
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 887
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
Dated: May 2, 2008.
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.
For the reasons given in the preamble, we are proposing to amend 30
Chapter VII as set forth below:
PART 700--GENERAL
1. The authority citation for part 700 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Amend Sec. 700.5, by revising the definition for the term
``Fund'' and adding definitions for the terms ``AML,'' ``AML
inventory,'' ``Eligible lands and water,'' ``Emergency,'' ``Expended,''
``Extreme danger,'' ``Left or abandoned in either an unreclaimed or
inadequately reclaimed condition,'' ``Project,'' ``Reclamation
activity,'' and ``Reclamation program'' in alphabetical order to read
as follows:
Sec. 700.5 Definitions.
* * * * *
AML means abandoned mine land(s).
AML inventory means OSM's listing of abandoned mine land problems
eligible to be reclaimed using moneys from the Abandoned Mine
Reclamation Fund or the Treasury as appropriate.
* * * * *
Eligible lands and water means land and water eligible for
reclamation or drainage abatement expenditures under the Abandoned Mine
Land program. Eligible lands and water are those which were mined for
coal or which were affected by such mining, wastebanks, coal
processing, or other coal mining processes and left or abandoned in
either an unreclaimed or inadequately reclaimed condition prior to
August 3, 1977, and for which there is no continuing reclamation
responsibility. However, lands and water damaged by coal mining
operations after that date and on or before November 5, 1990, may also
be eligible for reclamation if they meet the requirements specified in
Sec. 874.12(d) and (e) of this chapter. Following certification of the
completion of all known coal problems, eligible lands and water for
noncoal reclamation purposes are those sites that meet the eligibility
requirements specified in Sec. 875.14 of this chapter. For additional
eligibility requirements for water projects, see Sec. 874.14 of this
chapter, and for lands affected by remining operations, see section 404
of SMCRA.
Emergency means a sudden danger or impairment that presents a high
probability of substantial physical harm to the health, safety, or
general welfare of people before the danger can be abated under normal
program operation procedures.
* * * * *
Expended means that moneys have been obligated, encumbered, or
committed by contract by the State, Tribe, or us for work to be
accomplished or services to be rendered.
Extreme danger means a condition that could reasonably be expected
to cause substantial physical harm to persons, property, or the
environment and to which persons or improvements on real property are
currently exposed.
* * * * *
Fund means the Abandoned Mine Reclamation Fund established on the
books of the U.S. Treasury for the purpose of accumulating revenues
designated for reclamation of abandoned mine lands and other activities
authorized by section 401 of SMCRA.
* * * * *
Left or abandoned in either an unreclaimed or inadequately
reclaimed
[[Page 35250]]
condition means, for Abandoned Mine Land programs, lands and water:
(a) Which were mined or which were affected by such mining,
wastebanks, processing or other mining processes prior to August 3,
1977, or between August 3, 1977, and November 5, 1990, as authorized
pursuant to section 402(g)(4) of SMCRA, and on which all mining has
ceased;
(b) Which continue, in their present condition, to degrade
substantially the quality of the environment, prevent or damage the
beneficial use of land or water resources, or endanger the health and
safety of the public; and
(c) For which there is no continuing reclamation responsibility
under State or Federal laws, except as provided in sections 402(g)(4)
and 403(b)(2) of SMCRA.
* * * * *
Project means a delineated area containing one or more abandoned
mine land problems. A project may be a group of related reclamation
activities with a common objective within a political subdivision of a
State or within a logical, geographically defined area, such as a
watershed, conservation district, or county planning area.
* * * * *
Reclamation activity means the reclamation, abatement, control, or
prevention of adverse effects of past mining by an Abandoned Mine Land
program.
Reclamation program means a program established by a State or an
Indian tribe in accordance with Title IV of SMCRA for reclamation of
lands and water adversely affected by past mining, including the
reclamation plan and annual applications for grants under the plan.
* * * * *
PART 724--INDIVIDUAL CIVIL PENALTIES
3. The authority citation for part 724 continues to read as
follows:
Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C.
3701.
4. Amend Sec. 724.18 by revising paragraph (d) to read as follows:
Sec. 724.18 Payment of penalty.
* * * * *
(d) Delinquent payment. Following the expiration of 30 days after
the issuance of a final order assessing an individual civil penalty,
any delinquent penalty shall be subject to interest at the rate
established by the U.S. Department of the Treasury for late charges on
late payments to the Federal Government. The Treasury current value of
funds rate is published by the Fiscal Service in the notices section of
the Federal Register and on Treasury's Web site. Interest on unpaid
penalties will run from the date payment first was due until the date
of payment. Failure to pay overdue penalties may result in one or more
of the actions specified in Sec. 870.23(a) through (f) of this
chapter. Delinquent penalties are subject to late payment penalties
specified in Sec. 870.21(c) of this chapter and processing and
handling charges specified in Sec. 870.21(d) of this chapter.
PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING
5. The authority citation for part 773 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq., 16 U.S.C. 470 et seq., 16
U.S.C. 661 et seq., 16 U.S.C. 703 et seq., 16 U.S.C. 668a et seq.,
16 U.S.C. 469 et seq., and 16 U.S.C. 1531 et seq.
6. Amend Sec. 773.13 by revising paragraph (a)(2) to read as
follows:
Sec. 773.13 Unanticipated events or conditions at remining sites.
(a) * * *
(2) Resulted from an unanticipated event or condition at a surface
coal mining and reclamation operation on lands that are eligible for
remining under a permit that was held by the person applying for the
new permit.
* * * * *
PART 785--REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING
7. The authority citation for part 785 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
Sec. 785.25 [Amended]
8. In Sec. 785.25, remove paragraph (c).
PART 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING
ACTIVITIES
9. The authority citation for part 816 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and section 115 of Pub. L. 98-
146.
10. In Sec. 816.116, revise paragraphs (c)(2)(ii) and (c)(3)(ii)
to read as follows:
Sec. 816.116 Revegetation: Standards for success.
* * * * *
(c) * * *
(2) * * *
(ii) Two full years for lands eligible for remining included in a
permit for which a finding has been made under Sec. 773.15(m) of this
chapter. To the extent that the success standards are established by
paragraph (b)(5) of this section, the lands must equal or exceed the
standards during the growing season of the last year of the
responsibility period.
(3) * * *
(ii) Five full years for lands eligible for remining included in a
permit for which a finding has been made under Sec. 773.15(m) of this
chapter. To the extent that the success standards are established by
paragraph (b)(5) of this section, the lands must equal or exceed the
standards during the growing seasons of the last two consecutive years
of the responsibility period.
* * * * *
PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND
MINING ACTIVITIES
11. The authority citation for part 817 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
12. In Sec. 817.116, revise paragraphs (c)(2)(ii) and (c)(3)(ii)
to read as follows:
Sec. 817.116 Revegetation: Standards for success.
* * * * *
(c) * * *
(2) * * *
(ii) Two full years for lands eligible for remining included in a
permit for which a finding has been made under Sec. 773.15(m) of this
chapter. To the extent that the success standards are established by
paragraph (b)(5) of this section, the lands must equal or exceed the
standards during the growing season of the last year of the
responsibility period.
(c) * * *
(3) * * *
(ii) Five full years for lands eligible for remining included in a
permit for which a finding has been made under Sec. 773.15(m) of this
chapter. To the extent that the success standards are established by
paragraph (b)(5) of this section, the lands must equal or exceed the
standards during the growing seasons of the last two consecutive years
of the responsibility period.
* * * * *
PART 845--CIVIL PENALTIES
13. The authority citation for part 845 continues to read as
follows:
Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., 31 U.S.C.
3701, Pub. L. 100-202, and Pub. L. 100-446.
14. In Sec. 845.21, revise paragraph (b)(1) to read as follows:
[[Page 35251]]
Sec. 845.21 Use of civil penalties for reclamation.
* * * * *
(b) * * *
(1) Emergency projects as defined in Sec. 700.5 of this chapter;
* * * * *
PART 846--INDIVIDUAL CIVIL PENALTIES
15. The authority citation for part 846 continues to read as
follows:
Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C.
3701.
16. Amend Sec. 846.18 by revising paragraph (d) to read as
follows:
Sec. 846.18 Payment of penalty.
* * * * *
(d) Delinquent payment. Following the expiration of 30 days after
the issuance of a final order assessing an individual civil penalty,
any delinquent penalty shall be subject to interest at the rate
established by the U.S. Department of the Treasury for late charges on
late payments to the Federal Government. The Treasury current value of
funds rate is published by the Fiscal Service in the notices section of
the Federal Register and on Treasury's Web site. Interest on unpaid
penalties will run from the date payment first was due until the date
of payment. Failure to pay overdue penalties may result in one or more
of the actions specified in Sec. Sec. 870.23(a) through (f) of this
chapter. Delinquent penalties are subject to late payment penalties
specified in Sec. 870.21(c) of this chapter and processing and
handling charges specified in Sec. 870.21(d) of this chapter.
PART 870--ABANDONED MINE RECLAMATION FUND--FEE COLLECTION AND COAL
PRODUCTION REPORTING
17. The authority citation for part 870 continues to read as
follows:
Authority: 28 U.S.C. 1746, 30 U.S.C. 1201 et seq., and Pub. L.
105-277, sections 1701-1710
18. Revise Sec. 870.1 to read as follows:
Sec. 870.1 Scope.
This Part sets out our procedures to collect fees for the Fund and
to report coal production.
19. Amend Sec. 870.5 as follows:
a. Revise the introductory text as set forth below; and
b. Remove the following definitions: ``Abandoned Mine Reclamation
Fund or Fund'', ``Agency'', ``Allocate'', ``Eligible lands and water'',
``Emergency'', ``Extreme danger'', ``Indian Abandoned Mine Reclamation
Fund or Indian Fund'', ``Indian reclamation program'', ``Left or
abandoned in either an unreclaimed or inadequately reclaimed
condition'', ``OSM'', ``Permanent facility'', ``Project'', ``Qualified
hydrologic unit'', ``Reclamation activity'', ``Reclamation plan'',
``State Abandoned Mine Reclamation Fund or State Fund'', and ``State
reclamation program''.
Sec. 870.5 Definitions.
As used in this Part--
* * * * *
20. Revise Sec. 870.10 to read as follows:
Sec. 870.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of Part 870 and the OSM-1 Form and assigned control number 1029-0063.
The information is used to maintain a record of coal produced
nationwide each calendar quarter, the method of coal removal, the type
of coal, and the basis for coal tonnage reporting. Persons must respond
to meet the requirements of SMCRA. A Federal agency may not conduct or
sponsor, and you are not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
Sec. 870.11 [Amended]
21. Amend Sec. 870.11 by removing paragraph (b) and redesignating
paragraphs (c), (d), and (e) as paragraphs (b), (c), and (d),
respectively.
22. In Sec. 870.13, revise the heading of paragraph (a), revise
paragraph (b) and add paragraph (c) to read as follows:
Sec. 870.13 Fee rates.
(a) Fees for coal produced for sale, transfer, or use through
September 30, 2007.
* * * * *
(b) Fees for coal produced for sale, transfer, or use from October
1, 2007, through September 30, 2012. Fees for coal produced for sale,
transfer, or use from October 1, 2007, through September 30, 2012, are
shown in the following table:
------------------------------------------------------------------------
Type of fee Type of coal Amount of fee
------------------------------------------------------------------------
(1) Surface mining fee........ Anthracite, (i) If value of coal
bituminous, and is $ 3.15 per ton or
subbituminous, more, fee is 31.5
including cents per ton.
reclaimed. (ii) If value of coal
is less than $ 3.15
per ton, fee is 10
percent of the
value.
(2) Underground mining fee.... Anthracite, (i) If value of coal
bituminous, and is $ 1.35 per ton or
subbituminous. more, fee is 13.5
cents per ton.
(ii) If value of coal
is less than $ 1.35
per ton, fee is 10
percent of the
value.
(3) Surface and underground Lignite.......... (i) If value of coal
mining fee. is $ 4.50 per ton or
more, fee is 9 cents
per ton.
(ii) If value of coal
is less than $ 4.50
per ton, fee is 2
percent of the
value.
(4) In situ coal mining fee... All types other 13.5 cents per ton
than lignite. based on Btu's per
ton in place equated
to the gas produced
at the site as
certified through
analysis by an
independent
laboratory.
(5) In situ coal mining fee... Lignite.......... 9 cents per ton based
on the Btu's per ton
of coal in place
equated to the gas
produced at the site
as certified through
analysis by an
independent
laboratory.
------------------------------------------------------------------------
(c) Fees for coal produced for sale, transfer, or use from October
1, 2012, through September 30, 2021. The fees for coal produced for
sale, transfer, or use from October 1, 2012, through September 30,
2021, are shown in the following table:
[[Page 35252]]
------------------------------------------------------------------------
Type of fee Type of coal Amount of fee
------------------------------------------------------------------------
(1) Surface mining fee........ Anthracite, (i) If value of coal
bituminous, and is $ 2.80 per ton or
subbituminous, more, fee is 28
including cents per ton.
reclaimed coal. (ii) If value of coal
is less than $ 2.80
per ton, fee is 10
percent of the
value.
(2) Underground mining fee.... Anthracite, (i) If value of coal
bituminous, and is $ 1.20 per ton or
subbituminous. more, fee is 12
cents per ton.
(ii) If value of coal
is less than $ 1.20
per ton, fee is 10
percent of the
value.
(3) Surface and underground Lignite.......... (i) If value of coal
mining fee. is $ 4.00 per ton or
more, fee is 8 cents
per ton.
(ii) If value of coal
is less than $ 4.00
per ton, fee is 2
percent of the
value.
(4) In situ coal mining fee... All types other 12 cents per ton
than lignite. based on Btu's per
ton in place equated
to the gas produced
at the site as
certified through
analysis by an
independent
laboratory.
(5) In situ coal mining fee... Lignite.......... 8 cents per ton based
on the Btu's per ton
of coal in place
equated to the gas
produced at the site
as certified through
analysis by an
independent
laboratory.
------------------------------------------------------------------------
23. Revise Sec. Sec. 870.14 through 870.17 to read as follows:
Sec. 870.14 Determination of percentage-based fees.
(a) If you pay a fee based on a percentage of the value of coal,
you must include documentation supporting the claimed coal value with
your fee payment and production report. We may review this information
and any additional documentation we may require, including examination
of your books and records. We may accept the valuation you claim, or we
may determine another value of the coal.
(b) If we determine that a higher fee must be paid, you must pay
the additional fee together with interest computed under Sec. 870.21.
Sec. 870.15 Reclamation fee payment.
(a) You must pay the reclamation fee based on calendar quarter
tonnage no later than 30 days after the end of each calendar quarter.
(b) Along with any fee payment due, you must submit to us a
completed Coal Sales and Reclamation Fee Report (OSM-1 Form). You can
file the OSM-1 Form either in paper format or in electronic format as
specified in Sec. 870.17. On the OSM-1 Form, you must report:
(1) The tonnage of coal sold, used, or transferred;
(2) The name and address of any person or entity who is the owner
of 10 percent or more of the mineral estate for a given permit; and
(3) The name and address of any person or entity who purchases 10
percent or more of the production from a given permit, during the
applicable quarter.
(c) If no single mineral owner or purchaser meets the 10 percent
criterion in paragraphs (b)(2) and (b)(3) of this section, then you
must report the name and address of the largest single mineral owner
and purchaser. If several persons have successively transferred the
mineral rights, you must include on the OSM-1 Form information on the
last owner(s) in the chain before the permittee, i.e. the person or
persons who have granted the permittee the right to extract the coal.
(d) At the time of reporting, you may designate the information
required by paragraphs (b) and (c) of this section as confidential.
Sec. 870.16 Acceptable payment methods.
(a) If you owe total quarterly reclamation fees of $25,000 or more
for one or more mines, you must:
(1) Use an electronic fund transfer mechanism approved by the U.S.
Department of the Treasury;
(2) Forward payments by electronic transfer;
(3) Include the applicable Master Entity No.(s) (Part 1--Block 4 on
the OSM-1 Form), and OSM Document No.(s) (Part 1--upper right corner of
the OSM-1 Form) on the wire message; and
(4) Use our approved form or approved electronic form to report
coal tonnage sold, used, or for which ownership was transferred to the
address indicated in the Instructions for Completing the OSM-1 Form.
(b) If you owe less than $25,000 in quarterly reclamation fees for
one or more mines, you may:
(1) Forward payments by electronic transfer in accordance with the
procedures specified in paragraph (a) of this section; or
(2) Submit a check or money order payable to the Office of Surface
Mining Reclamation and Enforcement in the same envelope with the OSM-1
Form to: Office of Surface Mining Reclamation and Enforcement, P.O. Box
360095M, Pittsburgh, Pennsylvania 15251.
(c) If you pay more than $25,000 by a method other than an
electronic fund transfer mechanism approved by the U.S. Department of
the Treasury, you will be in violation of the Surface Mining Control
and Reclamation Act of 1977, as amended.
Sec. 870.17 Filing the OSM-1 Form.
(a) Filing an OSM-1 Form electronically. You may submit a quarterly
electronic OSM-1 Form in place of a quarterly paper OSM-1 Form.
Submitting the OSM-1 Form electronically is optional. If you submit
your form electronically, you must use a methodology and medium
approved by us and do one of the following:
(1) Maintain a properly notarized paper copy of the identical OSM-1
Form for review and approval by our Fee Compliance auditors (in order
to comply with the notary requirement in SMCRA); or
(2) Submit an electronically signed and dated statement made under
penalty of perjury that the information contained in the OSM-1 Form is
true and correct.
(b) Filing a paper OSM-1 Form. Alternatively, you may submit a
quarterly paper OSM-1 Form. If you choose to submit your form on paper,
you must do one of the following:
(1) Submit a properly notarized copy of the OSM-1 Form; or
(2) Submit the OSM-1 Form with a signed and dated statement made
under penalty of perjury that the information contained in the form is
true and correct. Under the unsworn statement option, you must sign the
following statement: ``I declare under penalty of perjury that the
foregoing is true and correct. Executed on [date].''
24. In Sec. 870.18, revise paragraph (b) to read as follows:
Sec. 870.18 General rules for calculating excess moisture.
* * * * *
(b) If OSM disallows any or all of an allowance for excess
moisture, you must submit an additional fee plus interest computed
according to Sec. 870.21(a) and
[[Page 35253]]
penalties computed according to Sec. 870.21(c).
* * * * *
25. Add new Sec. Sec. 870.21 through 870.23 to read as follows:
Sec. 870.21 Late payments.
(a) Fee payments postmarked later than 30 days after the calendar
quarter for which the fee was owed are subject to interest. Late
reclamation fee payments are subject to interest at the rate
established by the U.S. Department of the Treasury for late charges on
payments to the Federal Government. The Treasury current value of funds
rate is published annually in the Federal Register and on Treasury's
Web site.
(b) We will charge interest on unpaid reclamation fees from the
31st day following the end of the calendar quarter for which the fee
payment is owed to the date of payment. If you are delinquent, we will
bill you monthly and initiate whatever action is necessary to collect
full payment of all fees and interest.
(c) When a reclamation fee debt is more than 91 days overdue, a 6
percent annual penalty on the amount owed for fees will begin and will
run until the date of payment. This penalty is in addition to the
interest described in paragraph (a) of this section.
(d) For all delinquent fees, interest, and penalties, you must pay
a processing and handling charge that we will set based upon the
following components:
(1) For debts referred to a collection agency, the amount charged
to us by the collection agency;
(2) For debts we processed and handled, a standard amount we set
annually based upon similar charges by collection agencies for debt
collection;
(3) For debts referred to the Office of the Solicitor within the
U.S. Department of the Interior, but paid before litigation, the
estimated average cost to prepare the case for litigation as of the
time of payment;
(4) For debts referred to the Office of the Solicitor within the
U.S. Department of the Interior, and litigated, the estimated cost to
prepare and litigate a debt case as of the time of payment; and
(5) If not otherwise provided for, all other administrative
expenses associated with collection, including, but not limited to,
billing, recording payments, and follow-up actions.
(e) We will not charge prejudgment interest on any processing and
handling charges.
Sec. 870.22 Maintaining required production records.
(a) If you engage in or conduct a surface coal mining operation,
you must maintain up-to-date records that contain at least the
following information:
(1) The tons of coal you produced, bought, sold, or transferred,
the amount of money you received per ton, the name of person to whom
you sold or transferred the coal, and the date of each sale or
transfer;
(2) The tons of coal you used and your date of your consumption;
(3) The tons of coal you stockpiled or inventoried that are not
classified as sold for fee computation purposes under Sec. 870.12; and
(4) For in situ coal mining operations, the total Btu value of gas
you produced, the Btu value of a ton of coal in place certified at
least semiannually by an independent laboratory, and the amount of
money you received for gas sold, transferred, or used.
(b) We must have access to your records of any surface coal mining
operation for review. Your records must be available to us at
reasonable times.
(c) We may inspect and copy any of your books or records that are
necessary to substantiate the accuracy of your OSM-1 Form and payments.
If the fee is paid at the maximum rate, we will not copy information
relative to price. We will protect all copied information as authorized
or required by the Privacy Act (5 U.S.C. 552a) and the Freedom of
Information Act (5 U.S.C. 552).
(d) You must maintain your books and records for 6 years from the
end of the calendar quarter in which the fee was due or paid, whichever
is later.
(e) If you do not maintain or make available your books and records
as required in this section, we will estimate the fee due under this
Part through use of average production figures based upon the nature
and acreage of your coal mining operation.
(1) We will assess the fee at the amount we estimate plus an
additional 20 percent to account for possible error in our fee
liability estimate.
(2) After you receive our fee liability estimate, you may request
that we revise that estimate based upon your information. However, you
must demonstrate that our fee liability estimate is incorrect. You may
do this by providing adequate documentation that we find to be
acceptable and comparable to the information required in Sec.
870.19(a).
Sec. 870.23 Consequences of noncompliance.
If you do not maintain adequate records, provide us with access to
records of a surface coal mining operation, or pay overdue reclamation
fees, including interest on late payments or underpayments, we may take
one or more of the following actions:
(a) Start a legal action against you;
(b) Report you to the Internal Revenue Service;
(c) Report you to State agencies responsible for taxation;
(d) Report you to credit bureaus;
(e) Refer you to collection agencies; or
(f) Take some other appropriate action against you.
26. Revise part 872 to read as follows:
PART 872--MONEYS AVAILABLE TO ELIGIBLE STATES AND INDIAN TRIBES
Sec.
872.1 What does this Part do?
872.5 Definitions.
872.10 Information collection.
872.11 Where do moneys in the Fund come from?
872.12 Where do moneys distributed from the Fund and other sources
go?
872.13 What moneys does OSM distribute each year?
872.14 What are State share funds?
872.15 How does OSM distribute and award State share funds?
872.16 What may States use State share funds for?
872.17 What are Tribal share Funds?
872.18 How does OSM distribute and award Tribal share funds?
872.19 What may Indian tribes use Tribal share funds for?
872.20 What will OSM do with unappropriated AML funds currently
allocated to the Rural Abandoned Mine Program?
872.21 What are historic coal funds?
872.22 How does OSM distribute and award historic coal funds?
872.23 What may you use historic coal funds for?
872.24 What are Federal expense funds?
872.25 What may OSM use Federal expense funds for?
872.26 What are minimum program make up funds?
872.27 How does OSM distribute and award minimum program make up
funds?
872.28 What may you use minimum program make up funds for?
872.29 What are prior balance replacement funds?
872.30 How does OSM distribute and award prior balance replacement
funds?
872.31 What may you use prior balance replacement funds for?
872.32 What are certified in lieu funds?
872.33 How does OSM distribute and award certified in lieu funds?
872.34 What may you use certified in lieu funds for?
Authority: 30 U.S.C. 1201 et seq.
Sec. 872.1 What does this Part do?
This Part sets forth procedures and general responsibilities for
managing funds received under Title IV of the Surface Mining Control
and Reclamation Act of 1977, as amended.
[[Page 35254]]
Sec. 872.5 Definitions.
As used in this Part--
Allocate means to identify moneys in our records at the time they
are received by the Fund. The allocation process identifies moneys in
the Fund by the type of funds collected, including the specific State
or Indian tribal share.
Award means to approve our grant agreement authorizing you to draw
down and expend program funds.
Distribute means to annually assign funds to a specific State or
Indian tribe. After distribution, funds are available for award in a
grant to that specific State or Indian tribe.
Indian Abandoned Mine Reclamation Fund or Indian Fund means a
separate fund that an Indian tribe established to account for moneys we
award under Parts 885 or 886 of this chapter or other moneys these
regulations authorize to be deposited in the Indian Fund.
Reclamation plan or State reclamation plan means a plan that a
State or Indian tribe submitted and that we approved under section 405
of SMCRA and Part 884 of this chapter.
State Abandoned Mine Reclamation Fund or State Fund means a
separate fund that a State established to account for moneys we award
under Parts 885 or 886 of this chapter or other moneys these
regulations authorize to be deposited in the State Fund.
Sec. 872.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of Part 872 and assigned it control number 1029-0054. The information
is used to determine whether States and Indian tribes will be granted
funds for reclamation activities. States and Indian tribes must respond
to obtain a benefit in accordance with SMCRA. A Federal agency may not
conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
Sec. 872.11 Where do moneys in the Fund come from?
Revenue to the Fund includes--
(a) Reclamation fees we collect under section 402 of SMCRA and Part
870 of this chapter;
(b) Amounts we collect from charges for use of land acquired or
reclaimed with moneys from the Fund under Part 879 of this chapter;
(c) Moneys we recover through satisfaction of liens filed against
privately owned lands reclaimed with moneys from the Fund under Part
882 of this chapter;
(d) Moneys we recover from the sale of lands acquired with moneys
from the Fund or by donation;
(e) Moneys donated to us for the purpose of abandoned mine land
reclamation; and
(f) Interest and any other income earned from investment of the
Fund. We will credit interest and other income only to the Secretary's
share.
Sec. 872.12 Where do moneys distributed from the Fund and other
sources go?
(a) Each State or Indian tribe with an approved reclamation plan
must establish an account to be known as a State or Indian Abandoned
Mine Reclamation Fund. These funds will be managed in accordance with
the OMB Circular A-102.
(b) Revenue for the State and Indian Abandoned Mine Reclamation
Funds will include--(1) Amounts we granted for purposes of conducting
the approved reclamation plan;
(2) Moneys collected from charges for uses of land acquired or
reclaimed with moneys from the State or Indian Abandoned Mine
Reclamation Fund under Part 879 of this chapter;
(3) Moneys recovered through the satisfaction of liens filed
against privately owned lands;
(4) Moneys the State or Indian tribe recovered from the sale of
lands acquired under Title IV of SMCRA; and
(5) Such other moneys as the State or Indian tribe decides should
be deposited in the State or Indian Abandoned Mine Reclamation Fund for
use in carrying out the approved reclamation program.
(c) Moneys deposited in State or Indian Abandoned Mine Reclamation
Funds must be used to carry out the reclamation plan approved under
Part 884 of this chapter and projects approved under Sec. 886.27 of
this chapter.
Sec. 872.13 What moneys does OSM distribute each year?
(a) Under Title IV of SMCRA, each Federal fiscal year we must
distribute to you, the States and Indian tribes with approved
reclamation plans, the moneys listed in this section. We will
distribute all Fund moneys and other moneys from the Treasury that have
been designated for mandatory distribution. We will provide information
to you showing how we calculated your distribution. We will distribute
the following moneys:
(1) State share funds to uncertified States as described in Sec.
872.14;
(2) Tribal share funds to uncertified Indian tribes as described in
Sec. 872.17;
(3) Historic coal funds to uncertified States and Indian tribes as
described in Sec. 872.21;
(4) Minimum program make up funds to eligible uncertified States
and Indian tribes as described in Sec. 872.26;
(5) Prior balance replacement funds to certified and uncertified
States and Indian tribes as described in Sec. 872.29; and
(6) Certified in lieu funds to certified States and Indian tribes
as described in Sec. 872.32.
(b) We will calculate annual fee collections for coal produced in
the previous Federal fiscal year on a net cash basis. This means that
we will use collections that are paid for the current Federal fiscal
year to adjust fees that were overpaid or underpaid in prior fiscal
years.
(c) We will distribute any Congressionally-appropriated funds for
grants to you out of the Federal expenses funds when the appropriation
becomes available.
(d) You may apply for any or all distributed funds at any time
after the distribution using the procedures in Part 885 of this chapter
for certified States and Indian tribes or Part 886 for uncertified
States and Indian tribes.
Sec. 872.14 What are State share funds?
``State share funds'' are moneys we distribute to you from your
State share of the Fund each Federal fiscal year under section
402(g)(1)(A) of SMCRA. Your State share of the Fund is 50 percent of
the reclamation fees we collected from within your State (excluding
fees collected on Indian lands) and allocated to you, the State, in the
Fund for coal produced in the previous fiscal year.
Sec. 872.15 How does OSM distribute and award State share funds?
(a) To be eligible to receive State share funds, you must meet the
following criteria:
(1) You must have and maintain an approved reclamation plan under
Part 884 of this chapter; and
(2) You cannot be certified under section 411(a) of SMCRA.
(b) If you meet the eligibility requirements in paragraph (a) of
this section, we will distribute and award these State share funds to
you as follows:
(1) We will annually distribute State share funds to you as shown
in the following table:
[[Page 35255]]
------------------------------------------------------------------------
the amount of State share funds
For the Federal fiscal year(s) we annually distribute to you
beginning . . . will be . . .
------------------------------------------------------------------------
(i) October 1, 2007, and October 1, 50 percent of your 50 percent
2008. share of reclamation fees
collected on prior fiscal year
coal production.
(ii) October 1, 2009, and October 1, 75 percent of your 50 percent
2010. share of reclamation fees
collected on prior fiscal year
coal production.
(iii) October 1, 2011, and continuing 100 percent of your 50 percent
through September 30, 2022. share of reclamation fees
collected on prior fiscal year
coal production.
(iv) October 1, 2022 (fiscal year 2023) the amount remaining in your
State share of the Fund.
------------------------------------------------------------------------
(2) We will award these funds to you in grants according to the
provisions of Part 886 of this chapter.
Sec. 872.16 What may States use State share funds for?
You may only use State share funds for:
(a) Coal reclamation under Sec. 874.12 of this chapter;
(b) Water supply restoration under Sec. 874.14 of this chapter;
(c) Noncoal reclamation under Sec. 875.12 of this chapter that is
requested under section 409(c) of SMCRA;
(d) Deposit into an acid mine drainage abatement and treatment fund
under Part 876 of this chapter; and
(e) Land acquisition under Sec. 879.11 of this chapter.
Sec. 872.17 What are Tribal share funds?
``Tribal share funds'' are moneys we distribute to you from your
Tribal share of the Fund each Federal fiscal year under section
402(g)(1)(B) of SMCRA. Your Tribal share of the Fund is 50 percent of
the reclamation fees we collected and allocated to you, the Indian
tribe(s), in the Fund for coal produced in the previous fiscal year
from the Indian lands in which you have an interest.
Sec. 872.18 How will OSM distribute and award Tribal share funds?
(a) To be eligible to receive Tribal share funds, you must meet the
following criteria:
(1) You must have and maintain an approved reclamation plan under
Part 884 of this chapter; and
(2) You cannot be certified under section 411(a) of SMCRA.
(b) If you meet the eligibility requirements in paragraph (a) of
this section, we will distribute and award these Tribal share funds to
you as follows:
(1) We will annually distribute Tribal share funds to you as shown
in the following table:
------------------------------------------------------------------------
the amount of Tribal share
For the Federal fiscal year(s) funds we annually distribute to
beginning . . . you will be . . .
------------------------------------------------------------------------
(i) October 1, 2007, and October 1, 50 percent of your 50 percent
2008. share of reclamation fees
collected on prior fiscal year
coal production.
(ii) October 1, 2009, and October 1, 75 percent of your 50 percent
2010. share of reclamation fees
collected on prior fiscal year
coal production.
(iii) October 1, 2011, and continuing 100 percent of your 50 percent
through September 30, 2022. share of reclamation fees
collected on prior fiscal year
coal production.
(iv) October 1, 2022 (fiscal year 2023) the amount remaining in your
Tribal share of the Fund.
------------------------------------------------------------------------
(2) We will award these funds to you in grants according to the
provisions of Part 886 of this chapter.
Sec. 872.19 What may Indian tribes use Tribal share funds for?
You may only use Tribal share funds for:
(a) Coal reclamation under Sec. 874.12 of this chapter;
(b) Water supply restoration under Sec. 874.14 of this chapter;
(c) Noncoal reclamation under Sec. 875.12 of this chapter that is
requested under section 409(c) of SMCRA;
(d) Deposit into an acid mine drainage abatement and treatment fund
under Part 876 of this chapter; and
(e) Land acquisition under Sec. 879.11 of this chapter.
Sec. 872.20 What will OSM do with unappropriated AML funds currently
allocated to the Rural Abandoned Mine Program?
Under section 402(h)(4)(B) of SMCRA, we will make available any
moneys that remain allocated to RAMP and that were not appropriated or
moved to other allocations before December 20, 2006, for possible
transfer to the three United Mine Workers of America (UMWA) health care
plans described in section 402(h)(2) of SMCRA.
Sec. 872.21 What are historic coal funds?
(a) ``Historic coal funds'' are moneys provided under section
402(g)(5) of SMCRA based on the amount of coal produced before August
3, 1977, in your State or on Indian lands in which you have an
interest. Under the 2006 amendments, each year we allocate and
distribute 30 percent of annual AML fee collections for coal produced
in the previous fiscal year plus 60 percent of any other revenue to the
Fund as historic coal funds to supplement grants to States and Indian
tribes.
(b) Historic coal funds also will include moneys we reallocate
under sections 401(f)(3)(A)(i), 411(h)(1)(A)(ii), and 411(h)(4) of
SMCRA, including:
(1) The moneys we reallocate based on prior balance replacement
funds distributed under Sec. 872.29, which will be available to
supplement grants beginning with Federal fiscal year 2023; and
(2) The moneys we reallocate based on certified in lieu funds
distributed under Sec. 872.32, which will be available to supplement
grants in Federal fiscal years 2009 through 2022.
Sec. 872.22 How does OSM distribute and award historic coal funds?
(a) To be eligible to receive historic coal funds, you must meet
the following criteria:
(1) You must have and maintain an approved reclamation plan under
Part 884 of this chapter;
(2) You cannot be certified under section 411(a) of SMCRA; and
(3) You must have unfunded Priority 1 and 2 coal problems remaining
under sections 403(a)(1) and (2) of SMCRA.
(b) If you meet the eligibility requirements in paragraph (a) of
this section, we distribute these moneys to you using a formula based
on the
[[Page 35256]]
amount of coal historically produced before August 3, 1977, in your
State or from the Indian lands concerned.
(c) We annually distribute historic coal funds to you as shown in
the following table:
------------------------------------------------------------------------
the amount of historic coal
For the Federal fiscal year(s) funds we annually distribute to
beginning . . . you will be . . .
------------------------------------------------------------------------
(1) October 1, 2007, and October 1, 50 percent of the amount we
2008. calculated using the formula
described in paragraph (b) of
this section.
(2) October 1, 2009, and October 1, 75 percent of the amount we
2010. calculated using the formula
described in paragraph (b) of
this section.
(3) October 1, 2011, and continuing 100 percent of the amount we
through September 30, 2022. calculated using the formula
described in paragraph (b) of
this section.
(4) October 1, 2022 (fiscal year 2023), to the extent funds are
and thereafter. available, the amount needed
to reclaim your remaining
Priority 1 and 2 coal
problems.
------------------------------------------------------------------------
(d) In any given year, we will only distribute to you the historic
coal funds that you need to reclaim your unfunded Priority 1 or 2 coal
problems. Your distribution of State or Tribal share funds under
Sec. Sec. 872.14 or 872.17 plus your distribution of historic coal
funds along with unused funds from prior allocations could be more than
you need to reclaim your remaining high priority problems. If that
occurs, we will reduce the historic coal funds we distribute to you to
the amount that you need to fully fund reclamation of all your
remaining Priority 1 or 2 coal problems.
(e) We will award these funds to you in grants according to the
provisions of Part 886 of this chapter.
Sec. 872.23 What may you use historic coal funds for?
You may only use historic coal funds for:
(a) Coal reclamation under Sec. 874.12 of this chapter;
(b) Water supply restoration under Sec. 874.14 of this chapter;
(c) Noncoal reclamation under Sec. 875.12 of this chapter that is
requested under section 409(c) of SMCRA;
(d) Deposit into an acid mine drainage abatement and treatment fund
under Part 876 of this chapter; and
(e) Land acquisition under Sec. 879.11 of this chapter.
Sec. 872.24 What are Federal expense funds?
``Federal expense funds'' are moneys available in the Fund that are
not allocated or distributed as State share funds (Sec. 872.14),
Tribal share funds (Sec. 872.17), historic coal funds (Sec. 872.21),
or minimum program make up funds (Sec. 872.26). Congress must
appropriate Federal expense funds before we may expend them.
Sec. 872.25 What may OSM use Federal expense funds for?
(a) We may use Federal expense funds only for the purposes in
section 402(g)(3) of SMCRA, which include the following:
(1) The Small Operator Assistance Program under section 507(c) of
SMCRA (not more than $10 million annually);
(2) Emergency projects under State, Tribal, and Federal programs
under section 410 of SMCRA;
(3) Nonemergency projects in States and on lands within the
jurisdiction of Indian tribes that do not have an approved abandoned
mine reclamation program under section 405 of SMCRA;
(4) The Secretary's administration of Title IV of SMCRA and this
subchapter; and
(5) Projects authorized under section 402(g)(4) in States and on
lands within the jurisdiction of Indian tribes that do not have an
approved abandoned mine reclamation program under section 405 of SMCRA.
(b) We will not deduct moneys that we have annually allocated or
distributed as Federal expense funds under sections 402(g)(3) or (4) of
SMCRA for any State or Indian tribe from moneys we will annually
allocate or distribute to a State or Indian tribe under the authority
of sections 402(g)(1) or (5) of SMCRA.
(c) We will expend moneys under the authority in section
402(g)(3)(C) of SMCRA only in States or on Indian lands where the State
or Indian tribe does not have an abandoned mine reclamation program
approved under section 405 of SMCRA.
Sec. 872.26 What are minimum program make up funds?
(a) ``Minimum program make up funds'' are additional moneys we will
distribute each Federal fiscal year to eligible States and Indian
tribes to make up the difference between their total distribution of
other funds and $3 million. The source of these moneys is the non-
appropriated Federal expense funds.
(b) To be eligible to receive funds under this section, you must
meet the following criteria:
(1) You must have and maintain an approved reclamation plan under
Part 884 of this chapter;
(2) You cannot have certified under section 411(a) of SMCRA;
(3) The total amount you receive annually from State share funds
(Sec. 872.14) or Tribal share funds (Sec. 872.17), historic coal
funds (Sec. 872.21), and prior balance replacement funds (Sec.
872.29) must be less than $3 million; and
(4) You must need more than the total of funds you will receive
from State or Tribal share, historic coal, and prior balance
replacement funds to reclaim Priority 1 and 2 coal problems under
sections 403(a)(1) and (2) of SMCRA in your State or on Indian lands
within your jurisdiction.
(c) We will make funds available to the States of Missouri and
Tennessee under this section to reclaim Priority 1 and 2 coal problems
included in the AML inventory, provided each State has a reclamation
plan approved under Part 884 of this chapter.
Sec. 872.27 How does OSM distribute and award minimum program make up
funds?
(a) If you meet the eligibility requirements in Sec. 872.26(b), we
will distribute these minimum program make up funds to you as follows:
(1) We calculate your total distribution under this Part by first
adding, in order, your prior balance replacement funds distribution
(Sec. 872.29), your applicable State or Tribal share funds
distribution (Sec. Sec. 872.14 or 872.17), and your historic coal
funds distribution (Sec. 872.21). If the sum of these funds is less
than $3 million, we will calculate the amount of minimum program make
up funds to add to your distribution under this section to increase it
to that level.
(2) For each of the Federal fiscal years 2007 through 2022, we add
minimum program make up funds to your combined distribution of prior
balance replacement, State or Tribal share, and
[[Page 35257]]
historic coal funds as shown in the following table:
------------------------------------------------------------------------
The amount of minimum program
For each of the Federal fiscal year(s) make up funds we add to your
beginning . . . distribution will be . . .
------------------------------------------------------------------------
(i) October 1, 2007, and October 1, 50 percent of the amount that
2008.................................. we calculated should be added
under paragraph (a)(1) of this
section.
(ii) October 1, 2009, and October 1, 75 percent of the amount that
2010.................................. we calculated should be added
under paragraph (a)(1) of this
section.
(iii) October 1, 2011, and continuing 100 percent of the amount that
through September 30, 2022............ we calculated should be added
under paragraph (a)(1) of this
section as long as you have at
least $3 million of Priority 1
and 2 coal problems remaining.
(iv) October 1, 2022, and thereafter... to the extent funds are
available, 100 percent of the
amount that we calculated
should be added under
paragraph (a)(1) until you
have less than $3 million of
Priority 1 and 2 coal problems
remaining.
------------------------------------------------------------------------
(b) We award these funds to you in grants according to the
provisions of Part 886 of this chapter.
Sec. 872.28 What may you use minimum program make up funds for?
You may only use minimum program make up funds to reclaim Priority
1 and 2 coal problems under sections 403(a)(1) and (2) of SMCRA.
Sec. 872.29 What are prior balance replacement funds?
``Prior balance replacement funds'' are moneys we must distribute
to you instead of the moneys we allocated to your State or Tribal share
of the Fund before October 1, 2007, but did not distribute to you
because Congress did not appropriate them. They come from general funds
of the United States Treasury that are otherwise unappropriated. Under
section 411(h)(1) of SMCRA, we distribute prior balance replacement
funds to you, the State or Indian tribe, for seven years starting in
the Federal fiscal year beginning October 1, 2008.
Sec. 872.30 How does OSM distribute and award prior balance
replacement funds?
(a) We distribute prior balance replacement funds to you as
follows:
(1) In an amount equal to the aggregate, unappropriated amount
allocated to you before October 1, 2007, under sections 402(g)(1)(A) or
(B) of SMCRA;
(2) If you are, or are not, certified under section 411(a) of
SMCRA; and
(3) In seven equal annual installments beginning with the 2008
Federal fiscal year which starts on October 1, 2007.
(b) We award these funds to you in grants according to the
provisions of Part 885 of this chapter for certified States and Indian
tribes or Part 886 of this chapter for uncertified States and Indian
tribes.
(c) At the same time we distribute prior balance replacement funds
to you under this section, we transfer the same amount to historic coal
funds from moneys in your State or Tribal share of the Fund that were
allocated to you before October 1, 2007. The transferred funds will be
available for annual grants under Sec. 872.21 for the Federal fiscal
year beginning October 1, 2022, and annually thereafter. We will
allocate, distribute, and award the transferred funds according to the
provisions of Sec. Sec. 872.21, 872.22, and 872.23.
Sec. 872.31 What may you use prior balance replacement funds for?
(a) If you are certified under section 411(a) of SMCRA, you may
only use prior balance replacement funds for those purposes your State
legislature or Tribal council establishes, giving priority to
addressing the impacts of mineral development.
(b) If you are not certified under section 411(a) of SMCRA, you may
only use prior balance replacement funds for the purposes in section
403 of SMCRA, which include:
(1) Reclamation of coal problems under Sec. 874.12 of this
chapter;
(2) Water supply restoration under Sec. 874.14 of this chapter;
and
(3) Maintenance of the AML inventory.
Sec. 872.32 What are certified in lieu funds?
``Certified in lieu funds'' are moneys that we must distribute to
you, the certified State or Indian tribe, in lieu of moneys allocated
to your State or Tribal share of the Fund after October 1, 2007.
Certified in lieu funds come from general funds of the United States
Treasury that are otherwise unappropriated. Beginning with the 2009
Federal fiscal year which starts on October 1, 2008, we will distribute
certified in lieu funds to you under section 411(h)(2) of SMCRA.
Sec. 872.33 How does OSM distribute and award certified in lieu
funds?
(a) You must be certified under section 411(a) of SMCRA to receive
certified in lieu funds.
(b) If you meet the eligibility requirement in paragraph (a) of
this section, we will distribute these certified in lieu funds to you
as follows:
(1) Starting in the Federal fiscal year that begins on October 1,
2008, we annually distribute funds to you based on 50 percent of
reclamation fees received for coal produced during the previous Federal
fiscal year in your State or on Indian lands within your jurisdiction;
(2) The funds we annually distribute to you are in lieu of moneys
we otherwise would distribute to you from State share funds under Sec.
872.14 or Tribal share funds under Sec. 872.17 had you not been
excluded from receiving those funds under section 401(f)(3)(B) of
SMCRA; and
(3) We annually distribute certified in lieu funds to you as shown
in the following table:
------------------------------------------------------------------------
The amount of certified in lieu
In the Federal fiscal year(s) beginning funds we annually distribute to
on . . . you will be equal to . . .
------------------------------------------------------------------------
(i) October 1, 2008.................... 25 percent of your 50 percent
share of annual reclamation
fee collections.
(ii) October 1, 2009................... 50 percent of your 50 percent
share of annual reclamation
fee collections.
[[Page 35258]]
(iii) October 1, 2010.................. 75 percent of your 50 percent
share of annual reclamation
fee collections.
(iv) October 1, 2011, and thereafter... 100 percent of your 50 percent
share of annual reclamation
fee collections.
------------------------------------------------------------------------
(c) We award these funds to you in grants according to the
provisions of Part 885 of this chapter.
(d) At the same time we distribute certified in lieu funds to you
under this section, we will transfer the same amount to historic coal
funds and make those funds available for annual grants under Sec.
872.21 that same Federal fiscal year. We will allocate, distribute, and
award the transferred funds according to the provisions of Sec. Sec.
872.21, 872.22, and 872.23.
(e) We will distribute to you the amounts we withhold under
paragraph (b) of this section in two equal annual installments. We will
do this in Federal fiscal years 2018 and 2019.
Sec. 872.34 What may you use certified in lieu funds for?
You may use certified in lieu funds for any purpose.
PART 873--FUTURE RECLAMATION SET-ASIDE PROGRAM
27. The authority citation for part 873 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
28. Revise Sec. Sec. 873.11 and 873.12 to read as follows:
Sec. 873.11 Applicability.
The provisions of this Part apply to funds awarded, as defined in
Sec. 872.5 of this chapter, under section 402(g)(6)(A) of SMCRA before
its amendment on December 20, 2006, and their use by the States or
Indian tribes for coal reclamation purposes after September 30, 1995.
Sec. 873.12 Future set-aside program criteria.
(a) Any State or Indian tribe may receive and retain, without
regard to the limitation referred to in section 402(g)(1)(D) of SMCRA,
up to 10 percent of the total of the funds distributed annually to such
State or Indian tribe under sections 402(g) (1) and (5) of SMCRA for a
future set-aside fund if such amounts were awarded before December 20,
2006. The State or Indian tribe must deposit all set-aside funds
awarded into a special fund established under State or Indian tribal
law. The State or Indian tribe must expend amounts awarded (together
with all interest earned on such amounts) solely to achieve the
priorities stated in section 403(a) of SMCRA.
(b) Moneys the State or Indian tribe deposited in the special fund
account, together with any interest earned, are considered State or
Indian tribal moneys.
PART 874--GENERAL RECLAMATION REQUIREMENTS
29. The authority citation for part 874 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
30. Add Sec. 874.5 to read as follows:
Sec. 874.5 Definitions.
As used in this Part--
Reclamation plan or State reclamation plan means a plan that a
State or Indian tribe submitted and that we approved under section 405
of SMCRA and Part 884 of this chapter.
31. Revise Sec. Sec. 874.10 and 874.11 to read as follows:
Sec. 874.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of Part 874 and assigned it control number 1029-0113. This information
is used to ensure that appropriate reclamation projects involving the
incidental extraction of coal are conducted under the authority of
section 528(2) of SMCRA and that selected projects contain sufficient
environmental safeguards. Persons must respond to obtain a benefit. A
Federal agency may not conduct or sponsor, and you are not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Sec. 874.11 Applicability.
You must comply with the requirements in this Part if--
(a) You conduct reclamation projects using moneys from the Fund;
(b) You conduct reclamation projects using prior balance
replacement funds provided to uncertified States and Indian tribes
under Sec. 872.29 of this chapter;
(c) You choose to use certified in lieu funds provided under Sec.
872.32 of this chapter to address coal problems subsequent to
certification; or
(d) You, a certified State or Indian tribe, at the direction of
your State legislature or Tribal council, choose to use prior balance
replacement funds received under Sec. 872.29 of this chapter to
address coal problems subsequent to certification.
32. Amend Sec. 874.12 by revising paragraphs (c), (e), and (f) to
read as follows:
Sec. 874.12 Eligible coal lands and water.
* * * * *
(c) There is no continuing responsibility for reclamation by the
operator, permittee, or agent of the permittee under statutes of the
State or Federal government, or as a result of bond forfeiture. Bond
forfeiture will render lands or water ineligible only if the amount
forfeited is sufficient to pay the total cost of the necessary
reclamation. In cases where the forfeited bond is insufficient to pay
the total cost of reclamation, additional moneys from the Fund or any
prior balance replacement funds provided under Sec. 872.29 of this
chapter may be used.
* * * * *
(e) An uncertified State or Indian tribe may expend funds made
available under paragraphs 402(g)(1) and (5) of SMCRA and prior balance
replacement funds under section 411(h)(1) of SMCRA for the reclamation
and abatement of any site eligible under paragraph (d) of this section,
if the State or Indian tribe, with the concurrence of the Secretary,
makes the findings required in paragraph (d) of this section and the
State or Indian tribe determines that the reclamation priority of the
site is the same or more urgent than the reclamation priority for the
lands and water eligible under paragraphs (a), (b), or (c) of this
section that qualify as a Priority 1 or 2 site under section 403(a) of
SMCRA.
(f) With respect to lands eligible under paragraph (d) or (e) of
this section, moneys available from sources outside the Fund or that
are ultimately recovered from responsible parties must either be used
to offset the cost of the reclamation or transferred to the Fund if not
required for further reclamation activities at the permitted site.
* * * * *
33. Revise Sec. 874.13 to read as follows:
[[Page 35259]]
Sec. 874.13 Reclamation objectives and priorities.
(a) When you conduct reclamation projects under this Part, you
should follow OSM's ``Final Guidelines for Reclamation Programs and
Projects'' (66 FR 31250, June 11, 2001) and the expenditures must
reflect the following priorities in the order stated:
(1) Priority 1: The protection of public health, safety, and
property from extreme danger of adverse effects of coal mining
practices, including the restoration of land and water resources and
the environment that:
(i) Have been degraded by the adverse effects of coal mining
practices; and
(ii) Are adjacent to a site that has been or will be addressed to
protect the public health, safety, and property from extreme danger of
adverse effects of coal mining practices.
(2) Priority 2: The protection of public health and safety from
adverse effects of coal mining practices, including the restoration of
land and water resources and the environment that:
(i) Have been degraded by the adverse effects of coal mining
practices; and
(ii) Are adjacent to a site that has been or will be addressed to
protect the public health and safety from adverse effects of coal
mining practices.
(3) Priority 3: The restoration of land and water resources and the
environment previously degraded by adverse effects of coal mining
practices, including measures for the conservation and development of
soil, water (excluding channelization), woodland, fish and wildlife,
recreation resources, and agricultural productivity. Priority 3 land
and water resources that are geographically contiguous with existing or
remediated Priority 1 or 2 problems will be considered adjacent under
paragraphs (a)(1)(ii) or (a)(2)(ii) of this section.
(b) This paragraph applies to State or Tribal share funds available
under Sec. Sec. 872.14 and 872.17 of this chapter and historic coal
funds available under Sec. 872.21 of this chapter. You may expend
these funds to reclaim Priority 3 lands and waters, if either of the
following conditions applies:
(1) You have completed all of the Priority 1 and Priority 2
reclamation in the jurisdiction of your State or Indian tribe; or
(2) The expenditure for Priority 3 reclamation is made in
conjunction with the expenditure of funds for Priority 1 or Priority 2
reclamation projects, including Priority 1 or Priority 2 reclamation
projects conducted before December 20, 2006. Expenditures under this
paragraph must either:
(i) Facilitate the Priority 1 or Priority 2 reclamation; or
(ii) Provide reasonable savings towards the objective of reclaiming
all Priority 3 land and water problems within the jurisdiction of your
State or Indian tribe.
34. Amend Sec. 874.14 by revising the section heading and
paragraph (a) to read as follows:
Sec. 874.14 Water supply restoration.
(a) Any State or Indian tribe that has not certified completion of
all coal-related reclamation under section 411(a) of SMCRA may expend
funds under Sec. Sec. 872.16, 872.19, 872.23, and 872.31 of this
chapter for water supply restoration projects. For purposes of this
section, ``water supply restoration projects'' are those that protect,
repair, replace, construct, or enhance facilities related to water
supplies, including water distribution facilities and treatment plants
that have been adversely affected by coal mining practices. For funds
awarded before December 20, 2006, any uncertified State or Indian tribe
may expend up to 30 percent of the funds distributed to it for water
supply restoration projects.
* * * * *
35. Revise Sec. 874.16 to read as follows:
Sec. 874.16 Contractor eligibility.
To receive moneys from the Fund or Treasury funds provided to
uncertified States and Indian tribes under Sec. 872.29 of this
chapter, every successful bidder for an AML contract must be eligible
under Sec. Sec. 773.12, 773.13, and 773.14 of this chapter at the time
of contract award to receive a permit or be provisionally issued a
permit to conduct surface coal mining operations.
PART 875--CERTIFICATION AND NONCOAL RECLAMATION
36. The authority citation for part 875 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
37. Revise the heading for part 875 to read as set forth above.
38. Add Sec. 875.5 to read as follows:
Sec. 875.5 Definitions.
As used in this Part--
Reclamation plan or State reclamation plan means a plan that a
State or Indian tribe submitted and that we approved under section 405
of SMCRA and Part 884 of this chapter.
39. Revise Sec. Sec. 875.10 and 875.11 to read as follows:
Sec. 875.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of Part 875 and assigned it control number 1029-0103. This information
establishes procedures and requirements for State and Indian tribes to
conduct noncoal reclamation under abandoned mine land funding. The
information is needed to assure compliance with SMCRA and the Omnibus
Budget Reconciliation Act of 1990. Persons must respond to obtain a
benefit. A Federal agency may not conduct or sponsor, and you are not
required to respond to, a collection of information unless it displays
a currently valid OMB control number.
Sec. 875.11 Applicability.
(a) If you are a State or Indian tribe that has not certified under
section 411(a) of SMCRA, you must follow these noncoal reclamation
requirements when you use State share funds under Sec. 870.16, Tribal
share funds under Sec. 870.19, or historic coal funds under Sec.
870.23 to conduct reclamation projects on lands or water affected by
mining of minerals and materials other than coal.
(b) If you are a State or Indian tribe that has certified under
section 411(a) of SMCRA, you may use prior balance replacement funds
under Sec. 872.31 of this chapter, certified in lieu funds under Sec.
872.34 of this chapter, or both to:
(1) Maintain certification as required by Sec. Sec. 875.13 and
875.14 by addressing eligible coal problems; and
(2) To implement the other requirements of this Part as provided
for under an approved reclamation plan according to Part 884 of this
chapter.
40. Amend Sec. 875.12 by revising paragraph (c) to read as
follows:
Sec. 875.12 Eligible lands and water before certification.
* * * * *
(c) There is no continuing responsibility for reclamation by the
operator, permittee, or agent of the permittee under statutes of the
State or Federal Government or by the State as a result of bond
forfeiture. Bond forfeiture will render lands or water ineligible only
if the amount forfeited is sufficient to pay the total cost of the
necessary reclamation. In cases where the forfeited bond is
insufficient to pay the total cost of reclamation, moneys sufficient to
complete the reclamation may be sought under Part 886 of this chapter;
* * * * *
41. Amend Sec. 875.13 by revising paragraph (a) introductory text
and paragraph (a)(1) and by adding paragraph (d) to read as follows:
[[Page 35260]]
Sec. 875.13 Certification of completion of coal sites.
(a) The Governor of a State, or the equivalent head of an Indian
tribe, may submit to the Secretary a certification of completion of
coal sites. The certification must express the finding that the State
or Indian tribe has achieved all existing known coal-related
reclamation objectives for eligible lands and waters under section 404
of SMCRA or has instituted the necessary processes to reclaim any
remaining coal related problems. In addition to the above finding, the
certification of completion must contain:
(1) A description of both the rationale and the process used to
arrive at the above finding for the completion of all coal-related
reclamation under section 403(a)(1) through (3).
* * * * *
(d) The Director may, on his or her own initiative, make the
certification referred to in paragraph (a) of this section on behalf of
your State or Indian tribe if:
(1) Based upon information contained in the AML inventory, the
Director determines that all coal reclamation projects meeting the
priorities described in Sec. 874.13(a) of this chapter in the
jurisdiction of your State or Indian tribe have been completed; and
(2) Before making any determination, the Director provides the
public an opportunity to comment through a notice in the Federal
Register.
42. Revise Sec. 875.14 to read as follows:
Sec. 875.14 Eligible lands and water after certification.
(a) Following certification, eligible noncoal lands, waters, and
facilities are those-(1) Which were mined or processed for minerals or
which were affected by such mining or processing, and abandoned or left
in an inadequate reclamation status before August 3, 1977. However, for
Federal lands, waters, and facilities under the jurisdiction of the
Forest Service, the eligibility date is August 28, 1974. For Federal
lands, waters and facilities under the jurisdiction of the Bureau of
Land Management, the eligibility date is November 26, 1980; and
(2) For which there is no continuing reclamation responsibility
under State or other Federal laws.
(b) If eligible coal problems are found or occur after
certification, you must submit to us a plan that describes the approach
and funds that will be used to address those problems in a timely
manner. You may address any eligible coal problems with the certified
in lieu funds that you have already received or will receive from Sec.
872.32 of this chapter. You may, at the direction of the State
legislature or Tribal council, also use the prior balance replacement
funds received from Sec. 872.29 of this chapter to address coal
problems subsequent to certification. Any coal reclamation projects
that you do must conform to sections 401 through 410 of SMCRA.
43. Revise Sec. 875.16 to read as follows:
Sec. 875.16 Exclusion of certain noncoal reclamation sites.
You, the uncertified State or Indian tribe, may not use moneys from
the Fund or from prior balance replacement funds provided under Sec.
872.29 of this chapter of this chapter for the reclamation of sites and
areas designated for remedial action under the Uranium Mill Tailings
Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.) or that have
been listed for remedial action under the Comprehensive Environmental
Response Compensation and Liability Act of 1980 (42 U.S.C. 9601 et
seq.).
44. Revise Sec. 875.20 to read as follows:
Sec. 875.20 Contractor eligibility.
Every successful bidder for any contract by an uncertified State or
Indian tribe under this Part, or for a contract by a certified State or
Indian tribe to undertake coal AML reclamation as required to maintain
certification under this Part, must be eligible under Sec. Sec.
773.12, 773.13, and 773.14 of this chapter at the time of contract
award to receive a permit or be provisionally issued a permit to
conduct surface coal mining operations. This section does not apply to
any contract by a certified State or Indian tribe that is not for coal
reclamation.
PART 876--ACID MINE DRAINAGE TREATMENT AND ABATEMENT PROGRAM
45. The authority citation for part 876 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
46. Revise Sec. 876.10 to read as follows:
Sec. 876.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of Part 876 and assigned it control number 1029-0104. OSM will use the
information to determine if the State's or Indian tribe's Acid Mine
Drainage Abatement and Treatment Programs is in compliance with
legislative mandate. States and Indian tribes are required to respond
to obtain a benefit in accordance with SMCRA. A Federal agency may not
conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
47. Revise Sec. 876.12 to read as follows:
Sec. 876.12 Eligibility.
(a) Beginning December 20, 2006, any uncertified State or Indian
tribe having an approved reclamation program may receive and retain,
without regard to the limitation in section 402(g)(1)(D) of SMCRA, up
to 30 percent of the total of the funds distributed annually to that
State or Indian tribe under section 402(g)(1) of SMCRA (State or Tribal
share) and section 402(g)(5) of SMCRA (historic coal funds). For funds
awarded before December 20, 2006, any uncertified State or Indian tribe
may retain up to 10 percent of the funds distributed to it for an acid
mine drainage fund. All amounts set aside under this section must be
deposited into an acid mine drainage abatement and treatment fund
established under State or Indian tribal law.
(b) Before depositing funds under this Part, an uncertified State
or Indian tribe must:
(1) Establish a special fund account providing for the earning of
interest on fund balances; and
(2) Specify that moneys in the account may only be used for the
comprehensive abatement of the causes and treatment of the effects of
acid mine drainage within qualified hydrologic units (as defined in
paragraph (c) of this section) affected by coal mining practices.
(c) As used in paragraph (b) of this section, ``qualified
hydrologic unit'' means a hydrologic unit:
(1) In which the water quality has been significantly affected by
acid mine drainage from coal mining practices in a manner that
adversely impacts biological resources; and
(2) That contains lands and waters that are:
(i) Eligible under section 404 of SMCRA and include any of the
priorities described in section 403(a) of SMCRA; and
(ii) The subject of the expenditure from the forfeiture of a bond
required under section 509 of SMCRA or from other State sources to
abate and treat acid mine drainage.
(d) After the conditions specified in paragraphs (a) and (b) of
this section are met, OSM may approve a grant and the State or Indian
tribe may deposit moneys into the special fund account. The moneys so
deposited, together with any interest earned, must be considered State
or Indian tribal moneys.
Sec. Sec. 876.13 and 876.14 [Removed]
48. Remove Sec. Sec. 876.13 and 876.14.
[[Page 35261]]
PART 879--ACQUISITION, MANAGEMENT, AND DISPOSITION OF LANDS AND
WATER
49. The authority citation for part 879 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
50. Add Sec. 879.5 to read as follows:
Sec. 879.5 Definitions.
As used in this Part--
Reclamation plan or State reclamation plan means a plan that a
State or Indian tribe submitted and that we approved under section 405
of SMCRA and Part 884 of this chapter.
Sec. 879.10 [Removed]
51. Remove Sec. 879.10.
52. Amend Sec. 879.11 by revising paragraph (a) introductory text,
paragraph (a)(2), paragraph (b), and paragraph (c) to read as follows:
Sec. 879.11 Land eligible for acquisition.
(a) We may acquire land adversely affected by past coal mining
practices with moneys from the Fund. If approved in advance by us, you,
an uncertified State or Indian tribe, may also acquire land adversely
affected by past coal mining practices with moneys from the Fund or
with prior balance replacement funds provided under Sec. 872.29 of
this chapter. Our approval must be in writing, and we must make a
finding that the land acquisition is necessary for successful
reclamation and that--
* * * * *
(2) Permanent facilities will be constructed on the land for the
restoration, reclamation, abatement, control, or prevention of the
adverse effects of past coal mining practices. For the purposes of this
paragraph, ``permanent facility'' means any structure that is built,
installed or established to serve a particular purpose or any
manipulation or modification of the site that is designed to remain
after the reclamation activity is completed, such as a relocated stream
channel or diversion ditch.
(b) You, an uncertified State or Indian tribe, if approved in
advance by us, may acquire coal refuse disposal sites, including the
coal refuse, with moneys from the Fund and with prior balance
replacement funds provided under Sec. 872.29 of this chapter. We, OSM,
also may use moneys from the Fund to acquire coal refuse disposal
sites, including the coal refuse.
(1) Before the approval of the acquisition, the reclamation program
seeking to acquire the site will make a finding in writing that the
acquisition is necessary for successful reclamation and will serve the
purposes of their reclamation program.
(2) Where an emergency situation exists and a written finding as
set out in Sec. 877.14 of this chapter has been made, we may acquire
lands where public ownership is necessary and will prevent recurrence
of the adverse effects of past coal mining practices.
(c) Land adversely affected by past coal mining practices may be
acquired by us if the acquisition is an integral and necessary element
of an economically feasible plan or project to construct or
rehabilitate housing which meets the specific requirements in section
407(h) of SMCRA.
* * * * *
53. Amend Sec. 879.15 by revising paragraph (h) to read as
follows:
Sec. 879.15 Disposition of reclaimed land.
* * * * *
(h) All moneys received from disposal of land under this Part must
be returned to us. We will handle all moneys received under this
paragraph as unused funds in accordance with Sec. Sec. 885.19 and
886.20 of this chapter.
PART 880--MINE FIRE CONTROL
54. The authority citation for part 880 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
55. Amend Sec. 880.5 by adding paragraph (h) to read as follows:
Sec. 880.5 Definitions.
* * * * *
(h) Reclamation plan or State reclamation plan means a plan that a
State or Indian tribe submitted and that we approved under section 405
of SMCRA and Part 884 of this chapter.
PART 882--RECLAMATION ON PRIVATE LAND
56. The authority citation for part 882 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
57. Revise Sec. 882.10 to read as follows:
Sec. 882.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of Part 882 and assigned it control number 1029-0057. This information
is being collected to meet the mandate of section 408 of SMCRA, which
allows the State or Indian tribe to file liens on private property that
has been reclaimed under certain conditions. This information will be
used by the regulatory authority to ensure that the State or Indian
tribe has sufficient programmatic capability to file liens to recover
costs for reclaiming private lands. States and Indian tribes are
required to respond to obtain a benefit in accordance with SMCRA. A
Federal agency may not conduct or sponsor, and you are not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
58. Amend Sec. 882.13 by revising paragraph (a)(1) to read as
follows:
Sec. 882.13 Liens.
* * * * *
(a) * * *
(1) A lien must not be placed against the property of a surface
owner who did not consent to, participate in or exercise control over
the mining operation which necessitated the reclamation work.
* * * * *
PART 884--STATE RECLAMATION PLANS
59. The authority citation for part 884 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
60. Add Sec. 884.5 to read as follows:
Sec. 884.5 Definitions.
As used in this Part--
Reclamation plan or State reclamation plan means a plan that a
State or Indian tribe submitted and that we approved under section 405
of SMCRA and Part 884 of this chapter.
61. Revise Sec. 884.11 to read as follows:
Sec. 884.11 State eligibility.
You, a State or Indian tribe, are eligible to submit a reclamation
plan if you have eligible lands or water as defined in Sec. 700.5 of
this chapter within your jurisdiction. We may approve your proposed
reclamation plan if you have an approved State regulatory program under
section 503 of SMCRA, and you meet the other requirements of this
chapter and SMCRA. The States of Tennessee and Missouri are exempt from
the requirement for an approved State regulatory program by section
402(g)(8)(B) of SMCRA. The Navajo, Hopi, and Crow Indian tribes are
exempt from the requirement for an approved regulatory program by
section 405(k) of SMCRA.
62. Amend Sec. 884.17 by revising the section heading and
paragraph (b) to read as follows:
Sec. 884.17 Other uses by certified States and Indian tribes.
* * * * *
(b) Grant applications for uses other than coal reclamation by
certified States and Indian tribes may be submitted in accordance with
Sec. 885.15 of this chapter.
[[Page 35262]]
63. Add part 885 as follows:
PART 885--GRANTS FOR CERTIFIED STATES AND INDIAN TRIBES
Sec.
885.1 What does this Part do?
885.5 Definitions.
885.10 Information collection.
885.11 Who is eligible for a grant?
885.12 What can I use grant funds for?
885.13 What are the maximum grant amounts?
885.14 How long is my grant?
885.15 How do I apply for a grant?
885.16 After OSM approves my grant, what responsibilities do I have?
885.17 How can my grant be amended?
885.18 What audit, accounting, and administrative requirements must
I meet?
885.19 What happens to unused funds from my grant?
885.20 What must I report?
885.21 What happens if I do not comply with applicable Federal law
or the terms of my grant?
885.22 When and how can my grant be terminated for convenience?
Authority: 30 U.S.C. 1201 et seq.
Sec. 885.1 What does this Part do?
This Part sets forth procedures for grants to you, a State or
Indian tribe that has certified under Sec. 875.13 of this chapter that
all known coal reclamation problems in your State or on Indian lands
within your jurisdiction have been addressed. OSM's ``Final Guidelines
for Reclamation Programs and Projects'' (66 FR 31250, June 11, 2001)
may be used if applicable.
Sec. 885.5 Definitions.
As used in this Part--
Award means to approve our grant agreement authorizing you to draw
down and expend program funds.
Distribute means to annually assign funds to a specific State or
Indian tribe. After distribution, funds are available for award in a
grant to that specific State or Indian tribe.
Reclamation plan or State reclamation plan means a plan that a
State or Indian tribe submitted and that we approved under section 405
of SMCRA and Part 884 of this chapter.
Sec. 885.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
for all Title IV grants and assigned clearance number 1029-0059. This
information is being collected to obtain an estimate from you, the
certified State or Indian tribe, of the funds you believe necessary to
implement your program and to provide OSM with a means to measure
performance results under the Government Performance and Results Act
through your obligations of funds. Certified States and Indian tribes
are required to respond to obtain a benefit in accordance with SMCRA. A
Federal agency may not conduct or sponsor, and you are not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Sec. 885.11 Who is eligible for a grant?
You are eligible for grants under this Part if:
(a) You are a State or Indian tribe with a reclamation plan
approved under Part 884 of this chapter; and
(b) You have certified under Sec. 875.13 of this chapter that all
known coal problems in your State or on Indian lands in your
jurisdiction have been addressed.
Sec. 885.12 What can I use grant funds for?
(a) For all awards under this Part, you must use moneys for
activities authorized in SMCRA and included in your approved
reclamation plan or described in the grant application. In addition,
you may use moneys granted under this Part to administer your approved
reclamation program.
(b) You may use grant funds as established for each type of funds
you receive. You may use prior balance replacement funds as provided
under Sec. 872.31 of this chapter. You may use certified in lieu funds
as provided under Sec. 872.34 of this chapter. You may use any moneys
which may be available to you from the Fund for noncoal reclamation as
authorized under section 411 of SMCRA and Part 875 of this chapter.
(c) You may use grant funds for any allowable cost as determined by
the OMB cost principles in Circular A-87.
Sec. 885.13 What are the maximum grant amounts?
(a) You may apply at any time for a grant of any or all of the
Title IV funds that are available to you.
(b) We will not award an amount greater than the total funds
distributed to your State or Indian tribe in the current annual fund
distribution less any previous awards of current year funds, plus any
funds distributed to you in previous years but not awarded, plus any
unexpended funds recovered from previous grants and made available to
you under Sec. 885.19 of this chapter.
(c) Funds for the current fiscal year will be available for award
after the annual fund distribution described in Sec. 872.13 of this
chapter.
(d) Whenever you request it, we will give you information on the
amounts and types of funds that are currently available to you.
Sec. 885.14 How long is my grant?
The performance period for your grant will be the time period you
request in your grant application.
Sec. 885.15 How do I apply for a grant?
(a) You must use application forms and procedures specified by OSM.
(b) We will award your grant as soon as practicable but no more
than 30 days after we receive your complete application.
(c) If your application is not complete, we will inform you as soon
as practicable of the additional information we need to receive from
you before we can process the award.
(d) You must agree to expend the funds of the grant in accordance
with SMCRA, applicable Federal laws and regulations, and applicable OMB
and Treasury Circulars.
Sec. 885.16 After OSM approves my grant, what responsibilities do I
have?
(a) When we award your grant, we will send you a written grant
agreement stating the terms of the grant.
(b) After you are awarded a grant, you may assign functions and
funds to other Federal, State, or local organizations. However, we will
hold you responsible for the overall administration of that grant,
including the proper use of funds and reporting.
(c) The grant award constitutes an obligation of Federal funds. You
accept the grant and its conditions once you initiate work under the
agreement or draw down awarded funds.
(d) Although we have approved the grant agreement, you must ensure
that any applicable laws, clearances, permits, or requirements are met
before you expend funds for projects other than coal reclamation under
Part 874.
(e) If you conduct a coal reclamation project under Part 874 of
this chapter, you must not expend any funds until we have ensured that
all necessary actions have been taken by you and us to ensure
compliance with the National Environmental Policy Act of 1969 (NEPA)
(42 U.S.C. 4321 et seq.) and any other applicable laws, clearances,
permits or requirements.
(f) To the extent technologically and economically feasible, you
must use fuel other than petroleum or natural gas for all public
facilities that are planned, constructed, or modified in whole or in
part with Title IV grant funds.
(g) You must not expend more funds than we have awarded. Our award
of any grant does not commit or obligate the United States to award any
[[Page 35263]]
continuation grant or to enter into any grant revision, including grant
increases to cover cost overruns.
Sec. 885.17 How can my grant be amended?
(a) A grant amendment is a change of terms or conditions of the
grant agreement. An amendment may be initiated by you or by us.
(b) You must promptly notify us in writing, or we must promptly
notify you in writing, of events or proposed changes that may require a
grant amendment.
(c) All requirements and procedures for grant amendments will
follow 43 CFR part 12.
(d) We must award your amended grant agreement within 20 days of
receiving your request.
Sec. 885.18 What audit, accounting, and administrative requirements
must I meet?
(a) You must comply with the audit requirements of the OMB Circular
A-133.
(b) You must follow procedures governing grant accounting, payment,
records, property, and management contained in 43 CFR part 12.
Sec. 885.19 What happens to unused funds from my grant?
All program grant funds are available until expended. If there are
any unexpended funds after your grant is completed, we will deobligate
the funds when we close your grant. We will make these unused funds
available for re-award to the same certified State or Indian tribe to
which they were originally distributed. You may apply for unused funds
whenever you choose to request them either in a new grant award or as
an amendment to an existing open grant.
Sec. 885.20 What must I report?
(a) For each grant, you must annually report to us the performance
and financial information that we request.
(b) Upon completion of each grant, you must report to us final
performance and financial information that we request.
(c) You must use the AML inventory to maintain a current list of
AML problems and to report annual reclamation accomplishments with
grant funds.
(1) If you conduct reclamation projects, you must update the AML
inventory for each reclamation project you complete as you complete it.
(2) We must approve any amendments to the AML inventory after
December 20, 2006. We define ``amendment'' as any coal problems added
to the AML inventory in a new or existing problem area.
Sec. 885.21 What happens if I do not comply with applicable Federal
law or the terms of my grant?
If you or your subgrantee materially fails to comply with an award,
a reclamation plan, or a Federal statute or regulation, including
statutes relating to nondiscrimination, we may take appropriate
remedial actions. Enforcement actions and procedures must follow 43 CFR
part 12.
Sec. 885.22 When and how can my grant be terminated for convenience?
Either you or we may terminate the grant for convenience following
the procedures in 43 CFR part 12.
64. Revise part 886 to read as follows:
PART 886--RECLAMATION GRANTS FOR UNCERTIFIED STATES AND INDIAN
TRIBES
Sec.
886.1 What does this Part do?
886.5 Definitions.
886.10 Information collection.
886.11 Who is eligible for a grant?
886.12 What can I use grant funds for?
886.13 What are the maximum grant amounts?
886.14 How long will my grant be?
886.15 How do I apply for a grant?
886.16 After OSM approves my grant, what responsibilities do I have?
886.17 How can my grant be amended?
886.18 What audit and administrative requirements must I meet?
886.19 How must I account for grant funds?
886.20 What happens to unused funds from my grant?
886.21 What must I report?
886.22 What records must I maintain?
886.23 What actions can OSM take if I do not comply with the terms
of my grant?
886.24 What procedures will OSM follow to reduce, suspend, or
terminate my grant?
886.25 How can I appeal a decision to reduce, suspend, or terminate
my grant?
886.26 When and how can my grant be terminated for convenience?
886.27 What special procedures apply to Indian lands not subject to
an approved Tribal reclamation program?
Authority: 30 U.S.C. 1201 et seq.
Sec. 886.1 What does this Part do?
This Part sets forth procedures for grants to you, an uncertified
State or Indian tribe, to reclaim eligible lands and water and conduct
other activities necessary to carry out your approved reclamation plan.
OSM's ``Final Guidelines for Reclamation Programs and Projects'' (66 FR
31250, June 11, 2001) should be used as applicable.
Sec. 886.5 Definitions.
As used in this Part--
Award means to approve our grant agreement authorizing you to draw
down and expend program funds.
Distribute means to annually assign funds to a specific State or
Indian tribe. After distribution, funds are available for award in a
grant to that specific State or Indian tribe.
Reclamation plan or State reclamation plan means a plan that a
State or Indian tribe submitted and that we approved under section 405
of SMCRA and Part 884 of this chapter.
Sec. 886.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management
and Budget (OMB) has approved the information collection requirements
of Part 886, and Forms OSM-47, OSM-49, and OSM-51, and assigned
clearance number 1029-0059. This information is being collected to
obtain an estimate from you the uncertified State or Indian tribe of
the funds you believe necessary to implement your reclamation program
and to provide OSM with a means to measure performance results under
the Government Performance and Results Act through State and Tribal
obligations of funds. Uncertified States and Indian tribes are required
to respond to obtain a benefit in accordance with SMCRA. A Federal
agency may not conduct or sponsor, and you are not required to respond
to, a collection of information unless it displays a currently valid
OMB control number.
Sec. 886.11 Who is eligible for a grant?
You are eligible for grants under this Part if:
(a) You are a State or Indian tribe with a reclamation plan
approved under Part 884 of this chapter; and
(b) You have not certified that all known coal problems in your
State or on Indian lands in your jurisdiction have been addressed.
Sec. 886.12 What can I use grant funds for?
(a) You must use moneys granted under this Part to administer your
approved reclamation program and to carry out the specific reclamation
and other activities authorized in SMCRA as included in your
reclamation plan or your grant application.
(b) We award grants for reclamation of eligible lands and water in
accordance with sections 404 and 409 of SMCRA and Sec. Sec. 874.12 and
875.12 of this chapter, and in accordance with the priorities stated in
section 403 of SMCRA and Sec. 874.13 of this chapter.
(c) You may use grant funds as established in this chapter for each
type of funds you receive in your AML grant. You may use State share
funds as provided in Sec. 872.16 of this chapter; Tribal share funds
as in Sec. 872.19 of this chapter; historic coal funds as in
[[Page 35264]]
Sec. 872.23 of this chapter; minimum program make up funds as in Sec.
872.28 of this chapter; prior balance replacement funds as in Sec.
872.31 of this chapter; and federal expense funds as in Sec. 872.25 of
this chapter and in the appropriation.
(d) You may use grant funds for acquisition of land or interests in
land, and any mineral or water rights associated with the land, for up
to 90 percent of the costs.
(e) You may use grant funds only for costs which are allowable as
determined by OMB cost principles in Circular A-87.
Sec. 886.13 What are the maximum grant amounts?
(a) You may apply at any time for a grant of any or all of the
program funds that are distributed to you.
(b) We will not award an amount greater than the total funds
distributed to your State or Indian tribe in the current annual fund
distribution, less any previous awards of current year funds, plus any
funds distributed to you in previous years but not awarded, plus any
unexpended funds recovered from previous grants and made available to
you under Sec. 886.20 of this chapter.
(c) Funds for the current fiscal year will be available for award
after the annual fund distribution described in Sec. 872.13 of this
chapter.
(d) Whenever you request it, we will give you information on the
amounts and types of funds that are currently available to you.
Sec. 886.14 How long will my grant be?
(a) We will approve a grant period on the basis of the information
contained in the grant application showing that projects to be funded
will fulfill the objectives of SMCRA and the approved reclamation plan.
(b) The grant period will normally be for 3 years.
(c) We may extend the grant period at your request. We will
normally approve one extension for up to one additional year.
(d) The grant period for funding your administrative costs will not
normally exceed the first year of the grant.
(e) At your request, we may award or extend grants containing State
or Tribal share funds distributed to you in Fiscal Years 2008, 2009, or
2010 for a budget period of up to five years.
Sec. 886.15 How do I apply for a grant?
(a) You must use application forms and procedures specified by OSM.
(b) We will approve or disapprove your grant application within 60
days of receipt.
(c) If we do not approve your application, we will inform you in
writing of the reasons for disapproval. We may propose modifications if
appropriate. You may resubmit the application or appropriate revised
portions of the application. We will process the revised application as
an original application.
(d) You must agree to carry out activities funded by the grant in
accordance with SMCRA, applicable Federal laws and regulations, and
applicable OMB and Treasury Circulars.
(e) We will not require complete copies of plans and specifications
for projects either before the grant is approved or at the start of the
project. However, after the start of the project, we may review your
plans and specifications at your office, the project site, or any other
appropriate site.
Sec. 886.16 After OSM approves my grant, what responsibilities do I
have?
(a) When we award your grant, we will send you a written grant
agreement stating the terms of the grant.
(b) After you are awarded a grant, you may assign functions and
funds to other Federal, State, or local agencies. However, we will hold
you responsible for the overall administration of that grant, including
the proper use of funds and reporting.
(c) The grant award constitutes an obligation of Federal funds. You
accept the grant and its conditions once you initiate work under the
agreement or draw down awarded funds.
(d) Although we have approved the grant agreement, you must not
expend any construction funds until you receive a written authorization
to proceed with reclamation on the individual project. Our
Authorization to Proceed ensures that both you and we have taken all
actions necessary to ensure compliance with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and any other
applicable laws, clearances, permits, or requirements.
(e) You must enter coal problems in the AML inventory before you
expend funds on design or construction activities for a site. We must
approve any amendments to the AML inventory made after December 20,
2006. For purposes of this section, we define ``amendment'' as any coal
problem added to the AML inventory in a new or existing problem area
and any Priority 3 coal problem in the AML inventory that is elevated
to either Priority 1 or Priority 2 status.
(1) For emergency projects conducted under section 410 of SMCRA,
our finding that an emergency condition exists constitutes our approval
for the abandoned mine lands problem to be entered into the AML
inventory.
(2) We must approve amendments to the AML inventory for non-
emergency coal problems before you, the State or Indian tribe, begin
project development or design or use funds for construction activities.
In projects where development and design is minimal, this approval may
occur during the Authorization to Proceed process.
(f) To the extent technologically and economically feasible, you
must use fuel other than petroleum or natural gas for all public
facilities that are planned, constructed, or modified in whole or in
part with abandoned mine land grant funds.
(g) You must not expend more funds than we have awarded. Our award
of any grant does not commit or obligate the United States to award any
continuation grant or to enter into any grant revision, including grant
increases to cover cost overruns.
Sec. 886.17 How can my grant be amended?
(a) A grant amendment is a change of the terms or conditions of the
grant agreement. An amendment may be initiated by you or by us.
(b) You must promptly notify us in writing, or we must promptly
notify you in writing, of events or proposed changes that may require a
grant amendment.
(c) All procedures for grant amendments will follow 43 CFR part 12.
(d) We must approve or disapprove the amendment within 30 days of
receiving your request.
Sec. 886.18 What audit and administrative requirements must I meet?
(a) You must comply with the audit requirements of the OMB Circular
A-133.
(b) You must follow administrative procedures governing grant
payments, property, and related requirements contained in 43 CFR part
12.
Sec. 886.19 How must I account for grant funds?
You must do all of the following in accordance with the
requirements of 43 CFR part 12:
(a) Accurately and timely account for grant funds;
(b) Adequately safeguard all funds, property, and other assets and
assure that they are used solely for authorized purposes;
(c) Provide a comparison of actual amounts spent with budgeted
amounts for each grant;
(d) Request any cash advances as closely as possible to the actual
time of the disbursement; and
[[Page 35265]]
(e) Design a systematic method to assure timely and appropriate
resolution of audit findings and recommendations.
Sec. 886.20 What happens to unused funds from my grant?
(a) If there are any unexpended funds after your grant is
completed, we will deobligate the funds when we close your grant. We
will treat unused funds as follows:
(1) We will transfer any State share funds under Sec. 872.14 of
this chapter or Tribal share funds under Sec. 872.17 that were not
expended within three years of the date they were awarded in a grant,
except five years for funds awarded in Fiscal Years 2008, 2009, and
2010, to historic coal funds, Sec. 872.21 of this chapter. We will
distribute any funds transferred to historic coal in the next annual
distribution in the same way as historic coal funds from fee
collections during that fiscal year.
(2) We will hold any unused Federal expense funds under Sec.
872.24 of this chapter for distribution to any State or Indian tribe as
needed for the activity for which the funds were appropriated.
(3) We will make unused funds of all other types available for re-
award to the same State or Indian tribe to which they were originally
distributed. This includes historic coal funds under Sec. 872.21 of
this chapter, minimum program make up funds under Sec. 872.26 of this
chapter, and prior balance replacement funds under Sec. 872.29 of this
chapter.
(b) If you have any State share funds or Tribal share funds that
were distributed to you in an annual distribution under Sec. Sec.
872.15 or 872.18 of this chapter but that were not awarded to you in
grant within 3 years of the date they were distributed, or 5 years for
funds distributed in Fiscal Years 2008, 2009, and 2010, we will
transfer the unawarded funds to the historic coal fund under Sec.
872.21 of this chapter and distribute them in the next annual
distribution.
Sec. 886.21 What must I report?
(a) For each grant, you must annually report to us the performance
and financial information that we specify.
(b) Upon completion of each grant, you must submit to us final
performance, financial, and property reports, and any other information
that we specify.
(c) When you complete each reclamation project, you must update the
AML inventory.
Sec. 886.22 What records must I maintain?
You must maintain complete records in accordance with 43 CFR Part
12. Your records must support the information you reported to us. This
includes, but is not limited to, books, documents, maps, and other
evidence. Accounting records must document procedures and practices
sufficient to verify:
(a) The amount and use of all Title IV funds received; and
(b) The total direct and indirect costs of the reclamation program
for which you received the grant.
Sec. 886.23 What actions can OSM take if I do not comply with the
terms of my grant?
(a) If you, or your subgrantee, fail to comply with the terms of
your grant, we may take one or more of the following remedial actions,
as appropriate in the circumstances:
(1) Temporarily withhold cash payments pending your correction of
the deficiency;
(2) Disallow (that is, deny both use of Federal funds and matching
credit for non-Federal funds) all or part of the cost of the activity
or action not in compliance;
(3) Wholly or partly reduce, suspend or terminate the current award
for your program;
(4) Withhold further grant awards for the program; or
(5) Take other remedies that may be legally available.
(b) If we terminate your State regulatory administration and
enforcement grant, provided under Part 735 of this chapter, for failure
to implement, enforce, or maintain an approved State regulatory program
or any part thereof, we will terminate the grant awarded under this
Part. This paragraph does not apply to the States of Missouri or
Tennessee under section 402(g)(8)(B) of SMCRA, or to the Navajo, Hopi
and Crow Indian tribes under section 405(k) of SMCRA.
(c) If you fail to enforce the financial interest provisions of
Part 705 of this chapter, we will terminate the grant.
(d) If you fail to submit reports required by this Part or Part 705
of this chapter, we will take appropriate remedial actions. We may
terminate the grant.
(e) If you fail to submit a reclamation plan amendment as required
by Sec. 884.15 of this chapter, we may reduce, suspend, or terminate
all existing AML grants in whole or in part or may refuse to process
all future grant applications.
(f) If you are not in compliance with all Federal statutes relating
to nondiscrimination, including but not limited to the following, we
will terminate the grant:
(1) Title VI of the Civil Rights Act of 1964, Pub. L. 88-352, 78
Stat. 252 (42 U.S.C. 2000d et seq.). ``Nondiscrimination in Federally
Assisted Programs,'' which provides that no person in the United States
shall on the grounds of race, color, or national origin be excluded
from participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance, and the implementing regulations in 43 CFR part
17.
(2) Executive Order 11246, as amended by Executive Order 11375,
``Equal Employment Opportunity,'' requiring that employees or
applicants for employment not be discriminated against because of race,
creed, color, sex, or national origin, and the implementing regulations
in 40 CFR part 60.
(3) Section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112,
87 Stat. 355 (29 U.S.C. 794), as amended by Executive Order 11914,
``Nondiscrimination with Respect to the Handicapped in Federally
Assisted Programs.''
Sec. 886.24 What procedures will OSM follow to reduce, suspend, or
terminate my grant?
We will use the following procedures to reduce, suspend, or
terminate your grant:
(a) We must give you at least 30 days written notice of intent to
reduce, suspend, or terminate a grant. An OSM official authorized to
approve your grant must sign our notice of intent. We must send this
notice by certified mail, return receipt requested. Our notice must
include the reasons for the proposed action and the proposed effective
date of the action.
(b) We must give you opportunity for consultation and remedial
action before we reduce or terminate a grant.
(c) We must notify you in writing of the termination, suspension,
or reduction of the grant. The notice must be signed by the authorized
approving official and sent by certified mail, return receipt
requested.
(d) Upon termination, you must refund to us that remaining portion
of the grant money not encumbered. However, you may retain any portion
of the grant that is required to meet contractual commitments made
before the effective date of termination.
(e) You must not make any new commitments of grant funds after
receiving notification of our intent to terminate the grant without our
approval.
(f) We may allow termination costs as determined by applicable
Federal cost principles listed in OMB Circular A-87.
[[Page 35266]]
Sec. 886.25 How can I appeal a decision to reduce, suspend, or
terminate my grant?
(a) Within 30 days of our decision to reduce, suspend, or terminate
a grant, you may appeal the decision to the Director.
(1) You must include in your appeal a statement of the decision
being appealed and the facts that you believe justify a reversal or
modification of the decision.
(2) The Director must decide the appeal within 30 days of receipt.
(b) Within 30 days of a decision by the Director to reduce,
suspend, or terminate a grant, you may appeal the decision to the
Department of the Interior's Office of Hearings and Appeals. You must
include in the appeal a statement of the decision being appealed and
the facts that you believe justify a reversal or modification of the
decision.
Sec. 886.26 When and how can my grant be terminated for convenience?
Either you or we may terminate or reduce a grant if both parties
agree that continuing the program would not produce benefits worth the
additional costs. We will handle a termination for convenience as an
amendment to the grant to be approved by the OSM official authorized to
approve your grant.
Sec. 886.27 What special procedures apply to Indian lands not subject
to an approved Tribal reclamation program?
(a) This section applies to Indian lands not subject to an approved
Tribal reclamation program. The Director is authorized to mitigate
emergency situations or extreme danger situations arising from past
mining practices and begin reclamation of other areas determined to
have high priority on such lands.
(b) The Director is authorized to receive proposals from Indian
tribes for projects that should be carried out on Indian lands subject
to this section and to carry out these projects under Parts 872 through
882 of this chapter.
(c) For reclamation activities carried out under this section on
Indian lands, the Director shall consult with the Indian tribe and the
Bureau of Indian Affairs office having jurisdiction over the Indian
lands.
(d) If a proposal is made by an Indian tribe and approved by the
Director, the Tribal governing body shall approve the project plans.
The costs of the project may be charged against Federal expense funds
under Sec. 872.25 of this chapter.
(e) Approved projects may be carried out directly by the Director
or through such arrangements as the Director may make with the Bureau
of Indian Affairs or other agencies.
PART 887--SUBSIDENCE INSURANCE PROGRAM GRANTS
65. The authority citation for part 887 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
66. Revise Sec. 887.1 to read as follows:
Sec. 887.1 Scope.
This Part sets forth the procedures for grants to you, a State or
Indian tribe with an approved reclamation plan to establish,
administer, and operate a self-sustaining individual State or Indian
tribe administered program to insure private property against damages
caused by land subsidence resulting from underground coal mining.
Sec. 887.3 [Removed]
67. Remove Sec. 887.3.
68. Amend Sec. 887.5 by revising the definition of ``Self-
sustaining,'' removing the definition of ``State Administered'' and
adding the definitions of ``reclamation plan or State reclamation
plan'' and ``State or Indian tribe administered'' to read as follows:
Sec. 887.5 Definitions.
* * * * *
Reclamation plan or State reclamation plan means a plan that a
State or Indian tribe submitted and that we approved under section 405
of SMCRA and Part 884 of this chapter.
Self-sustaining means maintaining an insurance rate structure which
is designed to be actuarially sound. Self-sustaining requires that
State or Indian tribal subsidence insurance programs provide for
recovery of payments made in settlement for damages from any party
responsible for the damages under the law of the State or Indian tribe.
Actuarial soundness implies that funds are sufficient to cover expected
losses and expenses including a reasonable allowance for underwriting
services and contingencies. Self-sustaining must not preclude the use
of funds from other non-Federal sources.
State or Indian tribe administered means administered either
directly by a State or Indian tribe or for a State or Indian tribe
through a State or Indian tribal authorized commission, board,
contractor such as an insurance company, or other entity subject to
State or Indian tribal direction.
69. Revise Sec. Sec. 887.10 through 887.13 to read as follows:
Sec. 887.10 Information collection.
In accordance with 44 U.S.C. 3501 et seq., the OMB has approved the
information collection requirements of Part 887 and assigned it control
number 1029-0107. This information is being collected to support State
and Indian tribal grant requests for moneys for the establishment,
administration, and operation of self-sustaining State or Indian tribal
administered subsidence insurance programs. States and Indian tribes
are required to respond to obtain a benefit in accordance with SMCRA. A
Federal agency may not conduct or sponsor, and you are not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Sec. 887.11 Eligibility for grants.
You are eligible for grants under this Part if you are a State or
Indian tribe with a reclamation plan approved under Part 884 of this
chapter. If you are uncertified, you must have State share funds
available under Sec. 872.14 of this chapter or Tribal share funds
available under Sec. 872.17 of this chapter. If you have certified
completion of coal reclamation under section 411(a) of SMCRA, you must
have certified in lieu funds available under Sec. 872.32 of this
chapter, or prior balance replacement funds available under Sec.
872.29 of this chapter if the State legislature or Tribal council has
established this purpose.
Sec. 887.12 Coverage and amount of grants.
(a) You may use moneys granted under this Part to develop,
administer, and operate a subsidence insurance program to insure
private property against damages caused by subsidence resulting from
underground coal mining. The moneys may be used to cover your costs for
services and materials according to OMB cost principles, Circular A-87.
You may use eligible grant moneys to cover capitalization requirements
and initial reserve requirements mandated by applicable State or Tribal
law provided use of such moneys is consistent with the 43 CFR part 12.
(b) You must submit a grant application under the procedures of
Part 885 of this chapter for certified States and Indian tribes or Part
886 of this chapter for uncertified States or Indian tribes. Your
application must include the following:
(1) A narrative statement describing how the subsidence insurance
program is ``State or Indian tribe administered''; and
(2) A narrative statement describing how the funds requested will
achieve a self-sustaining individual State or Indian tribe administered
program to insure private property against subsidence resulting from
underground coal mining.
(c) Grants awarded to you under this Part cannot exceed a
cumulative total
[[Page 35267]]
over the lifetime of the program of $3 million.
(d) You may not use grant moneys from the Fund for lands that are
ineligible for reclamation funding under Title IV of SMCRA.
(e) Insurance premiums must be considered program income and must
be used to further eligible subsidence insurance program objectives in
accordance with 43 CFR part 12.
Sec. 887.13 Grant period.
The grant funding period must not exceed 8 years from the time we
approve the grant. You must return any unexpended funds remaining at
the end of any grant period to us according to 43 CFR part 12.
70. Revise Sec. 887.15 to read as follows:
Sec. 887.15 Grant administration requirements and procedures.
The requirements and procedures for grant administration set forth
in Part 885 of this chapter for reclamation grants to certified States
and Indian tribes or in Part 886 of this chapter for reclamation grants
to uncertified States and Indian tribes must be used for subsidence
insurance funds in grants.
[FR Doc. E8-13310 Filed 6-19-08; 8:45 am]
BILLING CODE 4310-05-P