Abandoned Mine Land Program, 67576-67647 [E8-26458]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 73, Number 221 (Friday, November 14, 2008)]
[Rules and Regulations]
[Pages 67576-67647]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-26458]



[[Page 67575]]

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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, 773, et al.



Abandoned Mine Land Program; Final Rule

Federal Register / Vol. 73, No. 221 / Friday, November 14, 2008 / 
Rules and Regulations

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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: Final rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are revising our regulations for the Abandoned Mine Reclamation 
Fund (Fund) and the Abandoned Mine Land (AML) program. This rule 
revises our regulations to be consistent with the Tax Relief and Health 
Care Act of 2006, Public Law 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 rule reflects the 
extension of our statutory authority to collect reclamation fees for an 
additional fourteen years and to reduce the fee rates. The rule 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 rule extends incentives reauthorized by the 2006 amendments 
pertaining to the remining of certain lands and water adversely 
affected by past mining.

DATES: Effective Date: January 13, 2009.

FOR FURTHER INFORMATION CONTACT: Danny Lytton, Chief, Reclamation 
Support Division, 1951 Constitution Ave., NW., Washington, DC 20240; 
Telephone: 202-208-2788; E-mail: dlytton@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Reclamation Fee and the Abandoned Mine Land 
Program
    A. How did the reclamation fee work before the 2006 amendments?
    B. How did the AML program work before the 2006 amendments?
    C. How did the 2006 amendments change these programs?
II. Outreach and Guidance
III. Description of the Final Rule and Discussion of the Comments 
Received
    A. General Comments
    B. Section By Section Analysis
IV. 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, Public Law 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 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, Public Law 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. However, funding for that program 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

[[Page 67577]]

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, 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). In addition, 
certified States and Indian tribes could 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, Public Law 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, Public Law 
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 expense 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 funds into set-aside accounts for either 
future coal reclamation or acid mine drainage abatement and treatment 
programs or both. 30 U.S.C. 1232(g)(6) (as amended by the Omnibus 
Budget Reconciliation Act of 1990, Public Law 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, Public Law 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. Public Law 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, 
2012, through September 30, 2021. 30 U.S.C. 1232(a).
     The Fund allocation formula is changed. Beginning October 
1, 2007, certified States are no longer 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 are 
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 receive mandatory 
distributions of Treasury funds in lieu of the State and Tribal share 
they are no longer 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.

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     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 are 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 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 not less than $3 million annually. 
30 U.S.C. 1232(g)(8)(A). This funding is a mandatory distribution from 
the Secretary's share of the Fund. However, like the rest of the 
distributions from the Fund, these distributions 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).
     Federal expenses from the Secretary's share must be 
appropriated by Congress. 30 U.S.C. 1231(d)(a). 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 an acid mine drainage 
(AMD) abatement and treatment program (AMD set-aside) 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. 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 
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, Public Law 102-486, section 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 and Guidance

    Shortly after the enactment of the 2006 amendments, we 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

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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. IMCC and NAAMLP subsequently 
submitted joint written comments on specific provisions of the 
amendments. We summarized their comments in the preamble to the 
proposed rule and we took all of the comments into consideration when 
developing the 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 restated and 
expanded upon the content of that guidance in the proposed and final 
rules. We have included the December 2007 written guidance in the 
docket for this rulemaking.
    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 moneys to eligible 
States and Indian tribes under sections 411(h)(1) and (h)(2) of SMCRA;
     Uncertified States and Indian tribes may not use funds 
that they receive under section 411(h)(1) of SMCRA for noncoal 
reclamation or 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).
    The comment period on the proposed rule was originally scheduled 
for 60 days, closing on August 19, 2008. We received requests from 
IMCC, NAAMLP, one State and one environmental group asking us to extend 
the comment period by an additional 60 days. In order to provide 
further opportunity to comment but to facilitate issuance of this final 
rule, we extended the comment period for ten days, through August 29, 
2008. We believe that the number and quality of the comments we 
received, as discussed in the next section, indicate that we provided 
adequate time for comment.

III. Description of the Final Rule and Discussion of the Comments 
Received

    This rulemaking revises 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 and to tribal primacy. The remining 
incentives provisions that leverage amounts from the Fund are the 
subject of a separate rulemaking, primarily about incentives to reclaim 
refuse ``gob'' piles, proposed on May 1, 2008, at 73 FR 24120. Efforts 
by Indian tribes to develop programs to take over regulatory authority 
for coal mining under the 2006 amendments will be addressed separately 
for each Indian tribe applying for primacy.
    Generally, this rulemaking sets forth standards and procedures for 
the coal reclamation fee, the Fund, and the AML program. This rule 
includes extensive regulations for long term operations of the amended 
Title IV program, including regulations that implement provisions of 
the 2006 amendments that will become effective at later dates. We are 
also taking advantage of this rulemaking opportunity to make other 
changes that we believe are needed to update and clarify related Parts 
of our existing regulations. Throughout this rule, the terms ``money'' 
and ``moneys'' are interchangeable with the terms ``fund'' or 
``funds,'' but not with the term ``Fund,'' as defined in Sec.  700.5.
    We received approximately 51 comments on the proposed rule, 
including joint comments from IMCC and NAAMLP and ten comments from 
individual States and Indian tribes that currently have AML reclamation 
programs under Title IV of SMCRA. In addition, we received comments 
from five environmental groups, one township, and approximately 35 
citizens, most of whom submitted identical letters. Many commenters 
specifically concurred in whole or in part with the IMCC/NAAMLP 
comments.
    The comments that we received ranged from extremely specific to 
very general. We will first address the general comments. Any comment 
directed at a specific section of the proposed rules will be summarized 
and responded to in our section by section analysis. All comments 
timely submitted have been placed in the docket for this rule and are 
available for public review.

A. General Comments

    Several commenters, including IMCC/NAAMLP, made general comments 
regarding the proposed rulemaking. Because these comments affect the 
rule as a whole, we will first address these comments.
    IMCC/NAAMLP and one State commenter suggested that we withdraw the 
proposed rule because of the ``significant differences of opinion'' 
that exist between the States and OSM. The commenters alternatively 
recommended that if we chose not to withdraw the proposed rule that we 
seriously analyze their comments and consider significantly 
restructuring and modifying the final rule to be consistent with their 
suggestions.
    Upon considering the commenters' request, we have decided that 
withdrawing the rule is not appropriate. Our overall general mission is 
to enforce and administer SMCRA, including all of its amendments. This 
final rule helps us to follow that mission because this rule is 
necessary to align our regulations with the 2006 amendments. Without 
this rulemaking, the existing regulations will not reflect the 
statutory changes and could create confusion. In addition, we believe 
this final rule will assist the States, Indian tribes, and the public 
by making our regulations easier to understand by using plain English 
and by providing the affected parties with more guidance and 
clarification when needed. Withdrawing the rule would delay the 
accomplishment of these purposes.
    Several commenters expressed concern that OSM drafted proposed 
rules in a ``heavy handed'' or ``patriarchal'' manner that is a 
``significant and detrimental departure from the cooperative spirit 
between OSM and the States and Tribes that has existed in the AML 
program for the last 25 years.'' As evidence of this point, the 
commenters mention that OSM is ``tak[ing] whatever approach is 
necessary [in interpreting the 2006 amendments] * * * to limit the 
flexibility of the States and Tribes to conduct AML reclamation on the 
sites most important to them within their respective borders. * * * We 
think OSM is merely seizing any justification it can to further limit 
the States and Tribes beyond what Congress intended.'' The commenters 
continued by pointing out that the preamble to the proposed rule 
frequently relies on our increased oversight responsibilities brought 
about by the 2006 amendments to justify the proposed rule. The 
commenters noted that by doing so, OSM is ``departing from the long

[[Page 67580]]

established reliance on oversight as the tool of choice to monitor and 
guide State and Tribal programs in favor of a command and control 
approach. Because of that, the proposed rule has the tone of a Title V 
rule meant to achieve compliance from regulated entities rather than a 
Title IV rule promoting reclamation with partners.'' Another commenter 
stated that the rule violates the intent of Congress because it is 
``micro-managing the methods of AML funding to States and Tribes * * 
*.''
    We appreciate hearing about these concerns from our State AML 
reclamation partners. In drafting both the proposed rule and this final 
rule, we did not attempt to be ``heavy handed'' in our approach or to 
increase oversight or OSM involvement except where mandated by the 2006 
amendments. We value the collegial relationship we have had with the 
State and Tribal AML programs for many years and do not wish to see it 
erode. We recognize that the 2006 amendments significantly expanded all 
the programs' discretion to determine the most effective use of AML 
funds and have tried to reflect this in the proposed and final 
regulations. For instance, as discussed further in the section by 
section analysis, the regulations provide, consistent with the 2006 
amendments, that uncertified programs can choose to direct more funding 
to water supply projects or AMD set-aside accounts with less OSM 
involvement or to address environmental problems adjacent to or in 
conjunction with high priority coal problems. This final rule does not 
extend our oversight role any further than is necessitated by the 2006 
amendments.
    With this rule, we have sought to reflect a balance that will 
promote and enhance the cooperative spirit that presently exists 
between State and Tribal AML programs and their Federal partners at 
OSM. To that end, we believe we have been working openly and closely 
with these State and Tribal programs and the organizations that 
represent them since the 2006 amendments were enacted. Even before the 
proposed rule was published, we met with the concerned States, Tribes, 
and their organizations, and even circulated draft proposed rule 
language to them on several occasions. Through these outreach efforts, 
we believe we have demonstrated that we have been open to comments and 
suggestions from the outset. This openness is further evidenced by the 
fact that we developed the proposed and final rules in order to 
incorporate changes suggested by the States and Indian tribes, 
including revising methods of calculating fund distributions, such as 
the calculation of the minimum program adjustments as described in the 
preamble to Sec.  872.27, and changing several key definitions 
including ``adjacent'' and ``in conjunction'' as described in Sec.  
874.13.
    In addition, the commenters criticize our reliance on advice from 
the Department of the Interior's Solicitor on three issues addressed in 
the rule--the use of grants instead of payments, the effect of the 
phase-in on minimum program funding, and the use of funds received 
under section 411(h)(1) of SMCRA for noncoal reclamation and AMD set-
aside accounts. We acknowledge that many of our decisions are based 
upon the Solicitor's M-Opinion. When the 2006 amendments were first 
enacted, we began extensive analysis of the statute and outreach to the 
States and Indian tribes. At that time, we discovered that there were 
differences regarding the interpretation of several provisions 
contained in the 2006 amendments, and we sought legal guidance from the 
Solicitor's Office on three specific issues. The result of this 
guidance was the M-Opinion, which we used to help draft the proposed 
rule and to make the FY 2008 distributions. The M-Opinion is part of 
the docket for this rulemaking. OSM is bound by the interpretations of 
the 2006 amendments contained in the M-Opinion. See 209 Departmental 
Manual (DM) 3.2(A)(11) (``M-Opinions * * * shall be binding, when 
signed, on all other Departmental offices and officials and which may 
be overruled or modified only by the Solicitor, the Deputy Secretary, 
or the Secretary.''). Thus, our regulations must comply with the 
interpretations contained within the M-Opinion.
    Similarly, a commenter complained about our reliance on section 
402(g)(2) of SMCRA, which states that the Secretary of the Interior 
``shall ensure strict compliance by the States and Indian Tribes with 
the priorities described in section 403(a) until a certification is 
made * * *.'' 30 U.S.C. 1232(g)(2). We agree that the proposed and 
final rule is consistent with this statutory provision, just as with 
other provision of the 2006 amendments.
    The commenters have also criticized what they perceive to be an 
implied sense in the proposed rule that the States and Tribes should be 
satisfied and comfortable with OSM's interpretation of the 2006 
amendments because of the significant increases in grant money provided 
to most States and Indian tribes under the new law. One commenter 
states:

    While the States and Tribes are very appreciative of 
Congressional action to return past unappropriated and current 
moneys to us, our focus has always been to use whatever moneys we 
receive to address public health and safety issues arising from the 
hazards of abandoned mines. For us, it is not just about the money--
it's about programs and partnerships that work effectively and 
efficiently to accomplish the greatest amount of AML remediation 
possible. As a result, our comments regarding the proposed rule are 
intended to restore and structure the AML program in such a manner 
that it can make a difference for our citizens and the environment.

    Congress decided to continue the important reclamation work that 
the States and Tribes are conducting by enacting the 2006 amendments. 
The 2006 amendments created many new opportunities for the States and 
Tribes, and we eagerly anticipate working with the States and Tribes--
our reclamation partners--as this program moves forward. While the 2006 
amendments created great opportunities, it is also quite specific in 
many areas. As we stated above, one of our goals for this rulemaking is 
to align our rules with the 2006 amendments. We believe this final rule 
does so.
    Some commenters are concerned that we have no intention of 
considering their comments to the proposed rule and making revisions to 
the final rule because we have already distributed revised versions of 
some of the existing directives, guidelines, forms and manuals that 
accompany or are significantly related to our rules on the AML program, 
including the Federal Assistance Manual (FAM or GMT-10), and OSM 
Directive AML-1.
    We would like to assure these commenters that no final decisions 
were made concerning the final rule until after we had read and 
analyzed all of the comments that we received. As mentioned above, we 
are bound by the interpretations in the Solicitor's M-Opinion since it 
was issued in December 2007. Pursuant to that M-Opinion as well as the 
decision documents issued with regard to the 2008 distributions, we 
updated the FAM in December 2007 and July 2008. The FAM is a series of 
OSM directives that relate to the management of grants provided to 
States and Tribes under SMCRA. The updates to the FAM allowed us to 
complete the FY 2008 grant distribution, to award and manage the FY 
2008 grants, to provide streamlined grants procedures for certified 
States and Indian tribes, and to make other changes not related to the 
2006 amendments. Because the FAM consists of internal OSM directives, 
we can easily make changes to these

[[Page 67581]]

directives to conform them to the current law and regulations. Thus, we 
are prepared to make additional changes that will be required to 
conform the contents of the FAM with the final rules that are enacted 
after consideration of the comments received on the proposed rule.
    With respect to the AML-1, which is the directive that describes 
OSM's policies and procedures relating to the AML inventory (also known 
as Abandoned Mine Land Inventory System or AMLIS), we circulated a 
draft of this directive to States and Indian tribe to receive their 
input as we are currently in the process of migrating the AML inventory 
into a more usable database. The circulation of a draft of AML-1 has 
allowed us to receive many useful comments on the AML inventory and 
will greatly improve our new AML inventory system. We would like to 
emphasize that we have not yet finalized any changes to AML-1, and 
nothing we are doing to improve the AML inventory will prevent us from 
fully considering the comments received on the proposed rule.
    We received several comments that included general support for the 
AML program and portions of the rule. For instance, one citizen 
commenter encouraged us to ``go through with the amendment to 
reauthorize the Abandoned Mine Land Program [because] our state, 
communities and people deserve to have the land reclaimed and brought 
back to something that can be used again rather than a dangerous 
eyesore that the land is now.'' We appreciate all of the comments we 
received in support of this rule.
    Several environmental groups and one township submitted comments 
that generally support the 2006 amendments and the positive change that 
should result as programs address acid mine drainage in the coalfields. 
These commenters and others stressed the need to recognize that the 
States have diverse AML reclamation programs, and that there is no one-
size-fits-all method to address AML reclamation. Flexibility was 
stressed by many commenters, including but not limited to the many 
commenters that expressed the sentiment that ``States should be given 
the latitude to use the funds for the construction or reconstruction of 
dams and waterways on public lands * * *.''
    We recognize that conditions vary at AML sites across the country--
from climate to the terrain-- and that SMCRA was implemented to provide 
the States with primary governmental responsibility over surface mining 
and reclamation operations. 30 U.S.C. 1201(f). The 2006 amendments did 
not alter the relationship between public and private lands and did not 
change the funding authorities related to the construction of dams and 
waterways. Project selection is the responsibility of each State and 
Indian tribe according to its approved reclamation plan. Thus, where 
possible, we have attempted to provide as much flexibility to States 
and Indian tribes as allowed by SMCRA, as amended in 2006.
    We also received several comments on remining as part of AML 
reclamation. One commenter strongly encouraged us to continue to pursue 
remining incentives, as they state that remining incentives are one of 
the most cost effective means of AML reclamation. In contrast, another 
commenter took a strong position against a broader interpretation of 
remining as an effective way to reclaim abandoned mine lands because 
reclamation in the name of remining has had some unfortunate 
environmental consequences in at least one State. In particular, this 
commenter stated that it is ``opposed [to] any changes that would 
broaden the interpretation of remining beyond the scope of reclaiming 
coal refuse.''
    We would like to state unequivocally that this final rule does not 
address remining in any meaningful way. As discussed below in 
conjunction with Parts 700, 773, 785, 816 and 817, the only changes we 
are making to the regulations related to remining are those that must 
be made to conform the existing regulations with the changes made by 
the 2006 amendments. As mentioned above, we proposed a separate 
rulemaking on May 1, 2008, that addresses our discretionary authority 
under section 415 of SMCRA to enact remining incentives related to AML 
reclamation. 30 U.S.C. 1244. This final rule does not promulgate any of 
the provisions proposed in that rule.
    A commenter also specially criticized the Programmatic 
Environmental Impact Statement (PEIS) for the Federal program for the 
State of Tennessee, and stated that it does ``not support any proposed 
revision of regulations that would further undermine preparation of 
environmental assessments (EA) or findings of no significant impact 
(FONSI) or environmental impact statements (EIS).'' We appreciate the 
concerns raised by this commenter and do not believe that this 
rulemaking changes the preparation of environmental documents under the 
National Environmental Policy Act (NEPA) for Tennessee. Other comments 
related to the Tennessee PEIS are outside of the scope of this rule.
    As one of our goals of this rulemaking was to make the AML 
regulations easier to understand, we have attempted to address a few 
comments that stated the proposed rule was hard to follow and should be 
clarified. Although one State commended our efforts to make the 
regulations clear, it still found that in some places the proposed rule 
was somewhat difficult to fully understand. For example, that same 
State commented that the preamble to the proposed rule referred to a 
separate rulemaking related to the 2006 amendments that was published 
in the Federal Register on May 1, 2008. The State suggested that we 
clarify this reference to note that this May 2008 proposed rule was 
primarily about incentives to reclaim refuse ``gob'' piles. We made 
this change in the final rule and have made every effort to present and 
explain all of the complex issues as easily and simply as possible.
    One environmental group commented that it strongly supports our 
Watershed Cooperative Agreement Program and urges us to use our 
discretion to recommend to Congress in our upcoming FY 2010 budget 
request at least $10 million for that program because restoration 
groups can leverage this funding several times over to provide an 
additional source of funding for AMD remediation. We appreciate the 
comment, but the Watershed Cooperative Agreement Program and future 
budget decisions are beyond the scope of this rule.
    In their previous joint comments dated May 21, 2007, IMCC/NAAMLP 
commented that it will be very important for the States and Indian 
tribes to receive the training they will need to implement the 
provisions of the new rules once they are in place, and urged us to 
keep this in mind. Although it does not impact this rulemaking, we 
agree with the comment and plan to hold training and planning meetings 
with the States and Indian tribes after this rule takes effect.

B. Section by Section Analysis

Part 700--General
Definitions (Sec.  700.5)
    We are adopting the changes to Sec.  700.5 as proposed. These 
changes include the addition of two new definitions (``AML'' and ``AML 
inventory'') and relocation of 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'') from existing 
Sec.  870.5 to Sec.  700.5. Each of these terms apply to all

[[Page 67582]]

of the regulations in Chapter VII of Title 30 of the Code of Federal 
Regulations, and we are making limited substantive changes to the text 
of the definitions of the six relocated terms. We are revising the 
first sentence of the definition of eligible lands consistent with the 
preamble to Part 884 to make it clear that certification qualifies a 
State or Indian tribe for a State or Tribal reclamation plan. However, 
the rest of the definition is substantively unchanged as it applies to 
AML programs. We are also correcting a mistaken reference to Sec.  
874.14 in this definition. As explained in the preamble to the proposed 
rule, the correct reference is Sec.  875.14--Eligible lands and water 
subsequent to certification. In addition, we are rewording two 
definitions (``eligible lands and water,'' and ``left or abandoned in 
either an unreclaimed or inadequately reclaimed condition'') using 
plain English.
    We are also combining 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 is not changing. In addition, we are moving the 
definition of ``expended'' from Sec.  870.5 to Sec.  700.5 and removing 
the existing limitation that it only applies to costs for reclamation 
in order to make the definition consistent with the entire chapter.
    Last, we are expanding 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 this rule, the definition of this 
term in Sec.  700.5 is being 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.
Responses to Comments
    We received one comment on our proposed changes to Sec.  700.5. 
This commenter explained that the proposed changes might ``still lead 
to misinterpretations and inadequate decision making regarding the best 
method to reclaim an AML site, i.e. reclamation or remining.'' We have 
considered this comment, and we appreciate the commenter's concern but 
do not believe that any changes to the definitions are necessary. The 
definition of ``reclamation activity'' in this section explains what is 
considered reclamation of lands and waters eligible under Title IV of 
SMCRA. This definition is not intended to provide guidance as to the 
best method for reclamation. Instead, each State or Indian tribal 
reclamation program has the choice and flexibility to determine what 
reclamation tools to use, including remining, as described in their 
reclamation plan and authorized by law.
Part 724--Requirements for Permits and Permit Processing
Payment of Penalty (Sec.  724.18)
    We are revising Sec.  724.18(d) to update the references in that 
section to reflect our division of existing Sec.  870.15 into separate 
sections within Part 870 and to update information on how to find the 
interest rate for late payments. We received no comments on either this 
Part or Part 870, and we are adopting the changes as proposed.
Part 773--Requirements for Permits and Permit Processing
Unanticipated Events or Conditions at Remining Sites (Sec.  
773.13(a)(2))
    We proposed a technical amendment to Sec.  773.13(a)(2) to conform 
this section with changes made to section 510(e) of SMCRA by the 2006 
amendments. 30 U.S.C. 1260(e). As explained in the preamble to the 
proposed rule, section 510(e) was added to SMCRA in 1992 and created an 
exemption from the section 510(c) permit-block sanction for remining 
operations. This statutory provision originally contained a statutorily 
defined expiration date of September 30, 2004, which was removed by the 
2006 amendments.
Responses to Comments
    One environmental group commented that they oppose an open 
exemption from the section 510(c) permit-block sanction for remining 
operations. While we recognize the group's concern about remining and 
have considered their comment, we are only changing this regulation to 
conform to the 2006 amendments to SMCRA, which we believe are clear. 
Thus, we are adopting the revision to Sec.  773.13(a)(2) as proposed to 
make our regulations consistent with SMCRA.
Part 785--Requirements for Permits for Special Categories of Mining
Information Collection (Sec.  785.10)
    We revised this paragraph using plain language and the current 
format approved by the Office of Management and Budget (OMB). It 
describes OMB's approval of information collections in Part 785, our 
use of that information, and the estimated reporting burden associated 
with those collections. The change is editorial in nature and has no 
substantive effect.
Lands Eligible for Remining (Sec.  785.25(c))
    As explained in more detail in the preamble to the proposed rule, 
we are removing Sec.  785.25(c) to conform our regulations with the 
2006 amendments. As discussed above in connection with Sec.  
773.13(a)(2), the 2008 amendments removed the statutorily defined 
expiration date of September 30, 2004, under section 510(e) of SMCRA. 
30 U.S.C. 1260(e). We received no comments on this section and are 
adopting this section as proposed.
Part 816--Permanent Program Performance Standards--Surface Mining 
Activities
Revegetation: Standards for Success (Sec.  816.116)
    We proposed a technical amendment to Sec.  816.116(c)(2)(ii) and 
(c)(3)(ii) to conform this section with changes made to section 510(e) 
of SMCRA by the 2006 amendments. 30 U.S.C. 1260(e). As explained in the 
preamble to the proposed rule, sections 510(e) and 515(b)(20)(B) were 
added to SMCRA in 1992 and 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), but those 
remining incentives had a statutorily defined expiration date of 
September 30, 2004. See 30 U.S.C. 1260(e) and 1265(b)(20)(B) (1993). 
The 2006 amendments removed this expiration date, and we are updating 
our regulations in conformance with this change. We are also rewording 
this section using plain English.
Responses to Comments
    One environmental group commented that they ``do not support the 
concept in 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). 
Any revision of this section should allow for conditional requirements 
that reflect changes in seasonal averages due to extreme wet or dry 
conditions within the two or five year time frame.'' As we state in our 
response to Sec.  773.13(a)(2), we recognize the commenter's concern 
but are only changing this regulation to conform to the 2006 amendments 
to SMCRA, which we believe are clear. Thus, we adopt the revision to 
Sec.  816.116(c)(2)(ii) and (c)(3)(ii) as proposed to make our 
regulations consistent with SMCRA.

[[Page 67583]]

Part 817--Permanent Program Performance Standards--Underground Mining 
Activities
Revegetation: Standards for Success (Sec.  817.116)
    We also proposed a technical amendment to Sec.  817.116(c)(2)(ii) 
and (c)(3)(ii) to conform this section with changes made to section 
510(e) of SMCRA by the 2006 amendments. 30 U.S.C. 1260(e). The 
revisions to this section are identical to those adopted in Sec.  
816.116, except that this section relates to underground mining 
activities instead of surface mining activities. As explained in the 
preamble to the proposed rule, sections 510(e) and 515(b)(20)(B) were 
added to SMCRA in 1992 and 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), but those 
remining incentives had a statutorily defined expiration date of 
September 30, 2004. 30 U.S.C. 1260(e) and 1265(b)(20)(B). The 2006 
amendments removed the expiration date, and we are updating our 
regulations in conformance with this change. We are also rewording this 
section using plain English.
Responses to Comments
    One environmental group commented that they do not support the 
language proposed for this section for the same reasons they do not 
support the revision to Sec.  816.116. Likewise, after consideration of 
this comment and for the same reasons stated in Sec.  816.116, we are 
adopting the revisions to 817.116(c)(2)(ii) and (c)(3)(ii) as proposed.
Part 845--Civil Penalties
Use of Civil Penalties for Reclamation (Sec.  845.21)
    We are revising Sec.  845.21(b)(1) as proposed to reflect our move 
of the definition of ``emergency'' from Sec.  870.5 to Sec.  700.5 of 
this chapter. We received no comments on this Part.
Part 846--Individual Civil Penalties
Payment of Penalty (Sec.  846.18)
    We are revising Sec.  846.18(d) to update the references in that 
section to reflect our division of existing Sec.  870.15 into separate 
sections within Part 870 and to update information on how to find the 
interest rate for late payments. We received no comments on either this 
Part or Part 870 and are adopting this section as proposed.
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. We did not receive any comments on our proposed revisions for Part 
870, and we are adopting the proposed changes to this Part for the 
reasons described in the preamble to the proposed rule
Part 872--Moneys Available to Eligible States and Indian Tribes
    We are revising Part 872 to address the changes to SMCRA that the 
2006 amendments made. Generally, our revisions to Part 872 describe the 
moneys that make up the Fund and other sources of funding under SMCRA 
that are available to you, the eligible States and Indian Tribes with 
approved reclamation programs, including otherwise unappropriated funds 
in the U.S. Treasury. This Part also describes how we convey these 
funds to you and the purposes for which you may use them. In addition, 
we are dividing, removing, and renumbering parts of existing Sec. Sec.  
872.11(a) through 872.11(c) and Sec.  872.12, changing headings, adding 
new sections and headings as appropriate, and more clearly describing 
the different types of funds available under this Part. We are making 
these additional changes to make the regulations easier to read and 
understand. Each change, a summary of the comments we received, if any, 
and our responses to these comments are described below in more detail.
    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 Sec.  700.5.
What does this Part do? (Sec.  872.1)
    This section explains 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 
received no comments on this section and, for the reasons set forth in 
the preamble to the proposed rule, we are adopting this section as 
proposed.
Definitions (Sec.  872.5)
    This new section contains definitions pertinent to Part 872, 
including four definitions (``allocate,'' ``Indian Abandoned Mine 
Reclamation Fund or Indian Fund,'' ``reclamation plan,'' and ``State 
Abandoned Mine Reclamation Fund or State Fund'') that we are moving 
from existing Sec.  870.5 and two new definitions (``award'' and 
``distribute''). We received no comments on this section and are 
adopting Sec.  872.5 generally as proposed and for the reasons 
discussed in the preamble to the proposed rule. For clarity, we are 
summarizing here our discussion of the terms ``allocate,'' 
``distribute,'' and ``award'' because they are important in describing 
the process that we follow to make funds available to States and Indian 
tribes. Our accounting process first allocates funds to a particular 
share in the Fund when 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. After the funds are distributed, we 
award funds to States and Indian tribes in grants when they apply for 
such grants. Also, we did make a few minor edits to ``Indian Abandoned 
Mine Reclamation Fund or Indian Fund'' and ``State Abandoned Mine 
Reclamation Fund or State Fund'' for clarity.
Information Collection (Sec.  872.10)
    In this section, we discuss the Paperwork Reduction Act 
requirements and the information collection aspects of Part 872. We are 
updating this section and rewording it using plain English. We did not 
receive any comments on this section and are adopting the section as 
proposed.
Where Do Moneys in the Fund Come From? (Sec.  872.11)
    This section describes the funds we collect, recover, and otherwise 
receive that are the sources of revenue to the Fund. We proposed 
several changes to this section, including rephrasing the section 
heading, and renumbering existing Sec. Sec.  872.11(a) through (a)(6) 
as Sec. Sec.  872.11 through 872.11(f).
    Substantively, we proposed removing language from existing Sec.  
872.11(a)(6) (now renumbered as Sec.  872.11(f)) that made interest 
earned after September 30, 1992, available for possible future transfer 
to the UMWA CBF under section 402(h) of SMCRA because the 2006 
amendments added new provisions related to our transfers to the UMWA 
health care plans. We also proposed to revise and reorganize the 
information in existing Sec. Sec.  872.11(b), including paragraphs 
(b)(1) through (b)(8). For instance, existing Sec.  872.11(b)(1) is now 
included in 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 now 
included in Sec. Sec.  872.17 and 872.18 on Tribal share funds and 
Sec.  886.20 on unused funds. Existing Sec.  872.11(b)(3)

[[Page 67584]]

related to the RAMP program is moved to Sec.  872.20, and existing 
Sec.  872.11(b)(4) is included in 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 Sec.  
872.25 on Federal expense funds. Existing Sec.  872.11(b)(6) is 
included in Sec. Sec.  872.26 and 872.27 on minimum program makeup 
funds. We are moving existing Sec.  872.11(c) to Sec.  872.12(c). We 
are revising all these provisions to be consistent with the 2006 
amendments and to use plain English.
Responses to Comments
    A State commented on proposed Sec.  872.11(f), which provides that 
revenue to the Fund includes ``[i]nterest and other income earned from 
investment of the Fund. We will credit interest and other income only 
to the Secretary's share.'' The commenter reasoned that the interest 
earned on moneys in the Fund that have been allocated to States and 
Indian tribes as State or Tribal share funds ``should be credited to 
the respective state/tribe'' and that this interest would be used for 
the purposes of Title IV.
    Although we agree with the commenter that sections 402(g)(1)(A) and 
(B) direct us to allocate moneys deposited in the fund to the State and 
Indian tribal shares, after consideration of this comment we must 
respectfully disagree with the commenter's conclusion that State and 
Indian tribes should also receive the interest on this allocation. 
Until the Abandoned Mine Reclamation Act of 1990 was enacted, there was 
no provision in SMCRA that allowed the Fund to contain any interest it 
earned. Compare the Omnibus Budget Reconciliation Act of 1990 (Pub. L. 
101-508, 104 Stat. 1388-290, Sec.  6002) with SMCRA (Pub. L. 95-87 
(1977)). The 1990 amendments to SMCRA added sections 401(b)(5) and 
401(e). 30 U.S.C. 1231(b)(5) and 1232(e). Section 401(e) directs the 
Secretary of the Treasury to ``invest such portion of the [Fund that is 
not required to meet current withdrawals] in public debt securities * * 
*.'' Under SMCRA, as amended in 2006, we must credit the interest 
earned on these investments to ``the fund for the purpose of the 
transfers'' to the UMWA health care plans referred to in section 402(h) 
of the Act. Thus, as noted in section 401(b)(5), the Fund will contain 
``interest credited to the fund under subsection (e)'' but this 
interest can only be used for transfers to the UMWA health care plans. 
We do not have the statutory authority to credit the interest earned on 
State and Tribal shares to individual States and Tribes for their use 
under Title IV. Therefore, we adopted Sec.  872.11(f) as proposed so 
that interest earned on the fund is properly credited to enable us to 
meet our obligations as prescribed by sections 401(e) and 402(h) of 
SMCRA.
Where Do Moneys Distributed From the Fund and Other Sources Go? (Sec.  
872.12)
    We did not receive any comments on this section and are adopting 
our proposed changes to Sec.  872.12 for the reasons stated in the 
preamble to the proposed rule.
What Money Does OSM Distribute Each Year? (Sec.  872.13)
    Section 872.13 is a new section that we proposed to add to describe 
how we distribute moneys each year to States and Indian tribes under 
SMCRA. Section 872.13(a) is intended as a tool that can be used to 
locate specific regulatory provisions relating to each type of funding 
that States and Tribes receive under sections 401, 402, and 411 of 
SMCRA. 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). Each type of funding is 
described in greater detail elsewhere in the rule.
    Paragraph (b) explains that 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 you as early in the FY as 
possible. When we make adjustments to the fees collected in an earlier 
FY due to refunds or additional fee payments, we must make these 
changes to the FY in which we learn that the adjustments are necessary 
because we cannot go back and revise the prior year fee collection 
amounts and distributions that we have already made to you.
    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 apply for 
grants using the procedures of Part 885 and uncertified States and 
Indian tribes use the procedures of Part 886.
Responses to Comments
    A State commented on the mandatory annual distr