Abandoned Mine Land Reclamation Program; Limited Liability for Noncoal Reclamation by Certified States and Indian Tribes, 6435-6448 [2015-02278]
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DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF THE INTERIOR
Federal Aviation Administration
Office of Surface Mining Reclamation
and Enforcement
14 CFR Parts 25
[Docket No. FAA–2013–0142; Amdt. No. 25–
141]
RIN 2120–AK12
Harmonization of Airworthiness
Standards—Gust and Maneuver Load
Requirements; Correction
Correction
In FAA rule document 2015–01205
appearing on pages 4761–4762 in the
issue of Thursday, January 29, 2015,
make the following corrections:
1. On page 4762 in the first column,
the second paragraph should read as
follows:
This document corrects three errors in
the Greek letters and subscripts
contained in various equations in the
regulatory text. In one case, the ‘‘U’’ in
the equation is changed from subscript
to regular, uppercase text. In another
¯
case, instead of ‘‘PL = PL¥1g ± UσA’’, the
¯
equation should be ‘‘PL = PL¥1g±UσA’’.
In two cases, the three Greek letters
‘‘rej’’ after sigma ‘‘s’’ in the subscript
of ‘‘U’’ are changed to ‘‘ref’’. In these
cases, ‘‘Uσρεϕ’’ should be ‘‘Uσref’’.
2. On page 4762 in the first column,
the third, fourth and fifth paragraphs
following the Corrections heading
should read as follows:
2. On page 73467, second column,
¯
line 11, the equation ‘‘PL = PL¥1g ± UσA’’
¯
is corrected to read ‘‘PL = PL¥1g ± UσA’’.
3. On page 73467, second column,
fifth line from the bottom, the equation
‘‘Uσ = UσρεϕFg’’ is corrected to read ‘‘Uσ
= Uσref Fg’’.
4. On page 73467, second column,
third line from the bottom, the text
‘‘Uσρεϕ’’ is corrected to read ‘‘Uσref’’.
[FR Doc. C1–2015–01205 Filed 2–4–15; 8:45 am]
BILLING CODE 1505–01–D
Dated at Rockville, Maryland, this 26th day
of January, 2015.
For the Nuclear Regulatory Commission.
Mark A. Satorius,
Executive Director for Operations.
[FR Doc. 2015–02310 Filed 2–4–15; 8:45 am]
BILLING CODE 7590–01–P
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30 CFR Parts 700, 875, 877, 879, 884,
and 885
RIN 1029–AC66
[Docket ID: OSM–2012–0010; S1D1S
SS08011000 SX066A00067F 134S180110;
S2D2S SS08011000 SX066A00 33F
13XS501520]
Abandoned Mine Land Reclamation
Program; Limited Liability for Noncoal
Reclamation by Certified States and
Indian Tribes
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule.
AGENCY:
We, the Office of Surface
Mining Reclamation and Enforcement
(OSMRE or OSM), are revising our
abandoned mine land (AML)
reclamation program regulations under
Title IV of the Surface Mining Control
and Reclamation Act of 1977 (SMCRA
or the Act). This rule allows states and
Indian tribes that have certified
completion of all known coal AML
reclamation needs within their
jurisdiction to receive limited liability
protection for certain noncoal
reclamation projects.
DATES: Effective March 9, 2015.
FOR FURTHER INFORMATION CONTACT:
Michael F. Kuhns, Division of
Regulatory Support, 1951 Constitution
Ave. NW., Washington, DC 20240;
Telephone: 202–208–2860.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background on the AML Reclamation
Program and Limited Liability Provision
A. How does the AML reclamation
program operate?
B. What is the limited liability provision of
SMCRA?
C. Why are we making rule changes related
to the limited liability provision?
II. Description of the Final Rule and
Discussion of the Comments Received
A. Summary of the Final Rule
B. General Discussion of Comments
C. Section-by-Section Analysis
1. How are we revising part 700—General?
2. How are we revising part 875—
Certification and Noncoal Reclamation?
3. How are we revising part 877—Rights of
Entry?
4. How are we revising part 879—
Acquisition, Management, and
Disposition of Lands and Water?
5. How are we revising part 884—State
Reclamation Plans?
6. How are we revising part 885—Grants to
Certified States and Indian Tribes?
III. Procedural Matters and Required
Determinations
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I. Background on the AML Reclamation
Program and Limited Liability
Provision
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A. How does the AML reclamation
program operate?
Congress established the AML
reclamation program in Title IV of
SMCRA to remedy the extensive
environmental damage caused by past
coal mining activities. In general, the
program is targeted toward reclaiming
abandoned and inadequately reclaimed
mine lands and waters adversely
impacted by surface coal mining
operations that were not subject to the
reclamation requirements of SMCRA.
Health, safety, and environmental
problems associated with abandoned
mine lands include polluted surface
water and groundwater, dangerous
entrances to underground mines, waterfilled pits, unreclaimed or inadequately
reclaimed mine sites (including some
with dangerous highwalls) and refuse
piles, sediment-clogged streams, damage
from landslides, and fumes and surface
instability resulting from coal seam fires
and burning coal refuse. Restoration
activities under the AML reclamation
program correct or mitigate these
problems. While the central focus of our
AML program has been to address coalrelated health, safety, and
environmental problems, noncoal
mining-related projects also are eligible
to receive funding under certain
conditions.
A core element of the national AML
program is the reclamation plan
developed by each qualifying state and
tribe. Under section 405(b) of SMCRA,
states that have coal lands and waters
eligible for reclamation under Title IV of
SMCRA may submit a proposed plan to
OSMRE for review. Section 405(k) of
SMCRA extends the same opportunity
to Indian tribes with eligible lands and
waters. If the proposed plan
demonstrates that the state or tribe has
eligible lands and waters and the legal
authority, policies, and administrative
structure necessary to adequately
administer the program, we will
approve the plan under section 405(d)
of SMCRA and 30 CFR 884.14, provided
the proposed plan and the state or tribe
meet all other requirements of 30 CFR
884.11 through 884.14. Currently, 25
states, the Navajo Nation, the Hopi
Tribe, and the Crow Tribe of Indians
have approved AML reclamation plans.
These states and tribes receive grant
funding for their AML reclamation
programs under section 405(f) of
SMCRA. These grants are, in part,
financed through a reclamation fee
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assessed on current coal production.1
The revenues generated by this
reclamation fee, and from certain other
sources, are transferred into the
Abandoned Mine Reclamation Fund
(the ‘‘AML Fund’’), which is a trust fund
‘‘created on the books of Treasury,’’ but
administered by the Secretary of the
Interior.2
During the first 30 years of the
program, the states of Louisiana,
Montana, Texas, and Wyoming and the
Crow Tribe, the Hopi Tribe, and the
Navajo Nation completed reclamation of
all known coal-related AML problems
within their jurisdiction and certified to
that fact in accordance with section
411(a) of SMCRA. Because of this
certification, these states and tribes are
known as ‘‘certified’’ states and tribes.
Beginning on November 5, 1990,
when the Abandoned Mine Reclamation
Act of 1990 (AMRA) was enacted as part
of the Omnibus Budget Reconciliation
Act of 1990, Public Law 101–508,
certified states and tribes were
authorized to expend Title IV grant
funding on the reclamation of eligible
noncoal AML problems and on the
construction of utilities and public
facility projects (collectively ‘‘noncoal
reclamation projects’’) under the
provisions of subsections (b) through (g)
of section 411 of SMCRA.3
In sum, subsection (b) of section 411
allows certified states and tribes to
expend AML Fund moneys on eligible
noncoal lands, waters, and facilities
without having to submit a request from
the governor or tribal chairman. Eligible
lands, waters, and facilities are defined
under this subsection as those 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 prior to
August 3, 1977, and for which there is
no continuing reclamation
responsibility under state or other
Federal laws.
Subsection (c) 4 of section 411
requires that expenditures for eligible
noncoal projects must reflect certain
listed priorities.
Subsection (d) 5 specifies that sites
listed for remedial action under the
Uranium Mill Tailings Radiation
Control Act of 1978 (UMTRCA) 6 or the
Comprehensive Environmental
Response Compensation and Liability
Act of 1980 (CERCLA) 7 are not eligible
noncoal projects.
1 30
U.S.C. 1232(a).
U.S.C. 1231(a).
3 30 U.S.C. 1240a(b)–(g).
4 30 U.S.C. 1240a(c).
5 30 U.S.C. 1240a(d).
6 42 U.S.C. 7901 et seq.
7 42 U.S.C. 9601 et seq.
2 30
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Subsection (e) 8 clarifies that eligible
noncoal projects can include projects
relating to the protection, repair,
replacement, construction, or
enhancement of public facilities
damaged by past mining practices so
long as they relate to the priorities listed
in subsection (c).
Subsection (f) 9 allows the governor of
a state or the head of the governing body
of an Indian tribe to request funding for
‘‘specific public facilities related to the
coal or minerals industry’’ even if the
site itself was not impacted by past
mining practices.
Finally, subsection (g) 10 requires that
noncoal programs conform to the
acquisition and lien provisions of
SMCRA—sections 407 and 408.11
Although these 1990 provisions
allowed certified states to develop
noncoal reclamation programs under a
SMCRA reclamation plan, uncertified
states were still limited in the types of
noncoal reclamation projects they could
perform under SMCRA. Specifically,
uncertified states could use AML grant
funds on the reclamation of noncoal
AML sites 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,
as provided under section 409 of
SMCRA.
Subsections (b) through (g) of section
411 of SMCRA remained the governing
authority for certified states performing
noncoal reclamation projects under
SMCRA until the passage of the Tax
Relief and Health Care Act of 2006,
Public Law 109–432, 120 Stat. 292 (the
‘‘2006 amendments’’). The 2006
amendments substantially modified the
AML reclamation program in Title IV of
SMCRA.
On November 14, 2008, we
promulgated a final rule, which revised
the OSMRE regulations for the
Abandoned Mine Reclamation Fund
and the Abandoned Mine Land program
to implement the 2006 amendments.
Abandoned Mine Land Program, 73 FR
67576–67647 (Nov. 14, 2008) (‘‘2008
Rule’’). (Please refer to the preamble of
the 2008 Rule for a more complete
description of the program changes
resulting from the 2006 amendments. 73
FR at 67577–67578.)
Of importance to this rulemaking, the
2008 Rule incorporated changes made
by the 2006 amendments relating to the
amount and use of funds distributed to
certified states and tribes. Prior to the
8 30
U.S.C. 1240a(e).
U.S.C. 1240a(f).
10 30 U.S.C. 1240a(g).
11 30 U.S.C. 1237–1238.
9 30
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Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations
2006 amendments, section 402(g)(1) of
SMCRA allocated 50 percent of the total
reclamation fees paid by coal mine
operators for coal produced from
operations located within each state or
tribe to that state or tribe. These
allocations within the AML Fund are
referred to as ‘‘State share’’ or ‘‘Tribal
share’’ funds. However, distribution of
the State share and Tribal share funds
was subject to annual appropriation,
and Congress did not always
appropriate the full amount allocated
each year. This left an increasing
unappropriated balance of State share
and Tribal share allocations in the AML
Fund.
The 2006 amendments addressed this
increasing unappropriated balance of
State share and Tribal share funds, in
part, by making the distribution of these
funds to uncertified states mandatory.12
Certified states and tribes, in contrast,
were barred from receiving what would
have been their annual State share and
Tribal share allocations from the AML
Fund, beginning October 1, 2007.13
These State share and Tribal share funds
were replaced with equivalent payments
from otherwise unappropriated general
funds in the U.S. Treasury.14 We refer
to these payments as ‘‘certified in lieu’’
funds; they are scheduled by statute to
continue through fiscal year 2022. 30
U.S.C. 1240a(h)(2); see also 30 U.S.C.
1202(a) and (g)(1).
In addition, the 2006 amendments
provided for payments to all states and
tribes from otherwise unappropriated
general funds in the U.S. Treasury in an
amount equal to the unappropriated
balance of their State share or Tribal
share allocation in the AML Fund as of
September 30, 2007. See section
411(h)(1) of SMCRA.15 As required by
the 2006 amendments, distribution of
these ‘‘prior balance replacement funds’’
occurred in seven equal annual
installments, beginning with fiscal year
2008 and ending in fiscal year 2014.
In 2012, however, a new law (Pub. L.
112–141) amended section 411(h) of
SMCRA by capping the total annual
payment to a certified state or tribe
under that section at $15 million. In
other words, the combined certified in
lieu and prior balance replacement
funds distributed annually to a certified
state or tribe cannot exceed $15 million
annually. On October 2, 2013, Congress
increased this cap to $28 million in
fiscal year 2014 and $75 million in
fiscal year 2015. See section 10 of the
12 30
U.S.C. 1231(d)(3).
U.S.C. 1231(f)(3)(B).
14 30 U.S.C. 1240a(h)(2).
15 30 U.S.C. 1240a(h)(1).
Helium Stewardship Act of 2013 (Pub.
L. 113–40).
As mentioned earlier, the 2008 Rule
revised the regulations to conform to the
2006 amendments. The 2008 Rule
recognized the greater latitude that the
2006 amendments gave to certified
states and tribes in how they could
spend the certified in lieu funds or prior
balance replacement funds. In
particular, under the 2008 Rule, while
certified programs are still required to
address known and newly discovered
coal problems in a timely manner,
funding not needed to address coal
problems may be used for a wider range
of purposes than previously allowed,
including, but not limited to, purposes
related to noncoal reclamation projects.
See 30 CFR parts 872 and 875 (2009).
B. What is the limited liability provision
of SMCRA?
Work done as part of an approved
state or tribal AML reclamation plan
receives limited liability protection.
Among the many changes made to Title
IV in 1990, AMRA added a new
section—section 405(l) 16 (the limited
liability provision)—which specifies
that ‘‘[n]o State shall be liable under any
provision of Federal law for any costs or
damages as a result of action taken or
omitted in the course of carrying out a
State abandoned mine reclamation plan
approved under this section.’’ Indian
tribes are also covered under this
provision because section 405(k) 17
provides that an Indian tribe is
considered a state for purposes of Title
IV of SMCRA. Section 405(l) waives
monetary liability for states and tribes
under all Federal laws when the states
and tribes are acting to carry out their
approved abandoned mine reclamation
plan, but it does not preclude liability
for a state’s or tribe’s gross negligence or
intentional misconduct. State and tribal
program officials routinely make a broad
range of decisions concerning site
selection and abatement of serious
health, safety, and environmental
problems. Although the limited liability
provision does not waive the
applicability of Federal laws to the
states and tribes, it does waive monetary
liability for actions they take in carrying
out or complying with those laws in
furtherance of an AML reclamation
plan. In so doing, the limited liability
provision provides states and tribes
with a degree of protection as they make
difficult choices with limited program
funding.
On May 31, 1994, we promulgated 30
CFR 874.15 and 875.19 to implement
13 30
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16 30
17 30
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U.S.C. 1235(l).
U.S.C. 1235(k).
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the limited liability provision in section
405(l) of SMCRA. See 59 FR 28172–
28173. The language in those two
regulatory sections is identical—30 CFR
874.15 applies to uncertified programs,
while 30 CFR 875.19 applies to certified
programs.
C. Why are we making rule changes
related to the limited liability provision?
We are revising our rules in response
to concerns that the 2008 Rule may have
created a disincentive for certified states
and tribes to conduct noncoal
reclamation projects with the moneys
that they receive under SMCRA. In the
2008 Rule, we did not change the
language of either 30 CFR 874.15 or
875.19, which are the regulatory
provisions that mirror SMCRA’s limited
liability provision. However, we
concluded in the preamble to the 2008
Rule that, although certified programs
could engage in noncoal reclamation
projects, programs that use the two new
sources of funding under sections
411(h)(1) and (h)(2) of SMCRA (prior
balance replacement funds and certified
in lieu funds, respectively, instead of
AML Fund moneys) would not be
operating as SMCRA noncoal AML
reclamation programs and would not
benefit from the limited liability
protections when they conduct noncoal
reclamation projects. See 73 FR at
67609–67611. This is because the
noncoal reclamation projects for
certified states are authorized by
subsections (b) through (g) of section
411 of SMCRA, and those statutory
provisions only refer to the use of State
share and Tribal share funds for SMCRA
noncoal AML reclamation programs
from the AML Fund. As stated above, as
a result of the 2006 amendments,
certified states and tribes no longer
receive State share and Tribal share
funds. Since 2008, certified states and
tribes that have chosen to expend the
certified in lieu funds or prior balance
replacement funds to work on noncoal
reclamation projects could not comply
with the regulations in 30 CFR part 875
that had implemented subsections (b)
through (g) of Section 411 of SMCRA 18
and, therefore, could not benefit from
the limited liability protection afforded
by 30 CFR 875.19 for their noncoal
reclamation projects. 73 FR at 67613–
67614.
Although we ultimately adopted this
more restrictive approach in the 2008
Rule, we considered other alternatives
in the proposed rule that preceded the
2008 Rule. First, we proposed to allow
certified states and tribes to choose to
use their Title IV moneys for noncoal
18 30
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CFR 875.11(b)(2).
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reclamation projects under 30 CFR part
875. See Abandoned Mine Land
Program, 73 FR 35214, 35233 (June 20,
2008). Second, we presented an
alternative that would have required
certified states and tribes to spend their
certified in lieu funds for noncoal
reclamation projects under 30 CFR part
875. Id.
As part of the 2008 rulemaking, we
received a number of comments
regarding the application of the limited
liability provision to certified states and
tribes. At that time, the Interstate
Mining Compact Commission (IMCC),
the National Association of Abandoned
Mine Land Programs (NAAMLP), and
one state commented that ‘‘certified
AML programs should not be required
to follow all of part 875 to enjoy the
protection of the limited liability
provisions of § 875.19.’’ 19 Since we
adopted the 2008 Rule, program officials
in certified states and tribes have
continued to express concern that the
loss of limited liability protection for
noncoal reclamation projects creates a
disincentive to conduct at least some
types of noncoal reclamation
activities.20
Based on our reconsideration of these
past public comments on the 2008 Rule
and our own concerns about the
potential disincentive that the 2008 may
have created, we reconsidered the
position that we took in the 2008 Rule
and concluded that a more flexible
approach could increase reclamation of
noncoal AML sites. In February 2013,
we published a proposed rule to revise
the 2008 Rule to allow certified states
and tribes to choose to use their prior
balance replacement funds and certified
in lieu funds for noncoal reclamation
projects under 30 CFR part 875 in
accordance with an approved AML
reclamation plan. Abandoned Mine
Land Reclamation Program; Limited
Liability for Noncoal Reclamation by
Certified States and Indian Tribes, 78 FR
8822 (Feb. 6, 2013). Under the proposed
19 73
FR at 67613.
e.g., Statement of Madeline Roanhorse,
Manager, AML Reclamation/Uranium Mill Tailings
Radiation Control Act Department, Navajo Nation
on Behalf of the National Association of Abandoned
Mine Land Programs re Oversight Hearing on The
Effect of the President’s FY 2013 Budget and
Legislative Proposals for the Office of Surface
Mining on Private Sector Job Creation, Domestic
Energy Production, State Programs and Deficit
Reduction before the House Energy and Mineral
Resources Subcommittee, March 6, 2012, p. 7
(‘‘Without this limited liability protection, these
states and tribes potentially subject themselves to
liability under the Clean Water Act and CERCLA for
their AML reclamation work. Nothing in the 2006
Amendments suggested that there was a desire or
intent to remove these liability protections, and
without them in place, certified states and tribes
will need to potentially reconsider at least some of
their more critical AML projects.’’).
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20 See,
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rule, any noncoal reclamation projects
conducted under 30 CFR part 875 in
accordance with an approved AML
reclamation plan would receive limited
liability protection as authorized by
section 405(l) of SMCRA and 30 CFR
875.19.
The rule that we are promulgating
today is designed to restore limited
liability protections for certain noncoal
reclamation projects, as described
below.
II. Description of the Final Rule and
Discussion of the Comments Received
A. Summary of the Final Rule
The final rule that we are adopting
today gives certified states and tribes
two options for conducting noncoal
reclamation projects. First, the final rule
retains the ability of certified states and
tribes to expend their prior balance
replacement funds and certified in lieu
funds on projects outside the scope of
a SMCRA noncoal AML reclamation
program but without limited liability
protection. Second, the final rule allows
certified states and tribes the ability to
voluntarily use prior balance
replacement funds and certified in lieu
funds to conduct noncoal reclamation
projects pursuant to a SMCRA noncoal
AML reclamation program under the
provisions of subsections (b) through (g)
of section 411 of SMCRA and 30 CFR
part 875 and other applicable
regulations. The limited liability
protection provided by section 405(l)
and 30 CFR 875.19 would apply to
noncoal reclamation projects completed
pursuant to a SMCRA noncoal AML
reclamation program. These two options
are discussed in more detail below.
Under the first option, if a certified
state or tribe chooses to use some or all
of its certified in lieu funds, prior
balance replacement funds, or both, on
noncoal reclamation projects outside of
a SMCRA noncoal AML reclamation
program, it will not be required to
comply with subsections (b) through (g)
of section 411 and the requirements of
30 CFR and other regulations related to
SMCRA noncoal AML reclamation
programs. Thus, for example, a state
could expend certified in lieu funds on
UMTRCA or CERCLA sites, but if it did
so it would not receive the limited
liability protections afforded by SMCRA
because section 411(d) and 30 CFR
875.16 prohibit SMCRA noncoal AML
reclamation programs from expending
moneys on those types of sites. Certified
states and tribes that choose this option
will have the same administrative
responsibilities that they have been
subject to under the 2008 Rule.
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Certified states and tribes, however,
can receive limited liability protections
for noncoal reclamation projects taken
under the aegis of the second option—
a SMCRA noncoal AML reclamation
program that is part of an approved
AML reclamation plan in accordance
with 30 CFR part 875 and other
applicable regulations. In other words,
under this rule, the limited liability
provision will apply to noncoal
reclamation projects conducted under
an approved state or tribal SMCRA
noncoal AML reclamation program
consistent with subsections (b) through
(g) of section 411 of SMCRA and the
requirements of 30 CFR part 875 and
other applicable regulations.
Under such a SMCRA noncoal AML
reclamation program, limited liability
protections will extend to onsite
reclamation activities and to program
administration, site development,
environmental management, and other
actions taken or not taken in support of
noncoal reclamation projects. Because
the protections only extend to ‘‘action
taken or omitted in the course of
carrying out’’ an approved abandoned
mine reclamation plan for a state or
Indian tribe, there must be a clear nexus
between the action or inaction and a
noncoal reclamation project conducted
pursuant to 30 CFR part 875 that is part
of an approved AML reclamation plan
for the protections to apply. Because
OSMRE must verify that the projects
conducted under the second option
meet the applicable statutory and
regulatory criteria, certified states and
tribes choosing this option will be
subject to more administrative
responsibilities, such as the requirement
for the submittal and approval of a
written authorization to proceed. These
individual administrative requirements
are described in the next section-bysection analysis below.
As we explained in our proposed rule,
the approach contained in this final rule
is consistent with section 411(h)(1) of
SMCRA, which grants the state
legislatures and tribal councils almost
complete discretion as to how to spend
prior balance replacement funds, and it
is consistent with section 411(h)(2) of
SMCRA, which contains no specific
instruction on the use of certified in lieu
funds and does not place any
restrictions upon them. 78 FR 8825.
This broad congressional grant of
authority gives certified states and tribes
discretion to operate an approved
noncoal AML reclamation program
under subsections (b) through (g) of
section 411 of SMCRA and the
implementing regulations with these
funds, should they chose to do so. This
approach would also be consistent with
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our view that states and tribes may use
these funds for coal reclamation to
maintain certification, a use also not
explicitly contained in either paragraph
(h)(1) or paragraph (h)(2) of section 411
of SMCRA.
B. General Discussion of Comments
In response to the proposed rule, we
received comments from seven states
and one Indian tribe, each with an
approved AML reclamation plan under
Title IV of SMCRA. In addition, we also
received joint comments from the IMCC
and the NAAMLP. We did not receive
any comments from environmental
groups, the coal industry, or citizens.
All comments timely submitted are
available for public review in the docket
for this rulemaking.
The comments that we received
ranged from very specific to very
general. All comments either supported
the rule or were neutral. We received no
comments opposing the rule. Seven
states and one tribe urged OSMRE to
enact a final rule as soon as practicable.
They also endorsed the IMCC/NAAMLP
comments, which can be summarized in
the following excerpt: ‘‘While we
anticipated fewer changes required to
effect the reinstatement [of limited
liability coverage], our review indicates
OSMRE has done a thorough job in
correcting all areas of the rules
necessary to support the reinstatement.
OSMRE is to be commended for their
effort.’’
Comments specific to a particular
provision of the proposed rule are
discussed below in the section-bysection analysis.
C. Section by Section Analysis
rljohnson on DSK3VPTVN1PROD with RULES
1. How are we revising part 700—
General?
To improve the clarity of the
regulations, we are revising § 700.5 to
add a definition of the term ‘‘SMCRA.’’
We proposed to define the term
‘‘SMCRA’’ as meaning the Surface
Mining Control and Reclamation Act of
1977 (Pub. L. 95–87), as amended. We
received no comments about the
proposed definition and are adopting it
as proposed, with the exception that we
are replacing the reference to Public
Law 95–87 in the proposed rule with
the appropriate United States Code
citation (30 U.S.C. 1201 et seq.) because
that is the more commonly used citation
for the statute.
2. How are we revising part 875—
Certification and Noncoal Reclamation?
We are revising this part to clarify that
certified states and tribes may
voluntarily conduct noncoal
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reclamation activities under a noncoal
AML reclamation program in
accordance with the provisions of 30
CFR part 875 and other applicable
regulations and thus receive limited
liability protection for noncoal
reclamation projects completed under
those provisions. In general, our
revisions set forth the procedures that
certified states and tribes must follow if
they voluntarily choose to use their
Title IV funding for noncoal reclamation
projects under part 875, which includes
reclamation of noncoal AML sites as
well as the construction of certain
utilities and public facilities as provided
under § 875.15, pursuant to an approved
SMCRA noncoal AML reclamation plan.
These procedures relate to the eligibility
of sites and restrictions for land
acquisition and management, lien
determinations, and contractor
eligibility. In addition, this part makes
clear that certified states and Indian
tribes will receive limited liability
protection under 30 CFR 875.19 for
authorized noncoal reclamation projects
and supporting administrative and
programmatic activities. A discussion of
our revisions to individual sections of
the rules and our response to the
comments that we received specific to
those sections follows.
Applicability (§ 875.11)
We are revising § 875.11(b)(2) to allow
certified programs to use prior balance
replacement funds and certified in lieu
funds for both coal reclamation projects
that are necessary to maintain
certification and noncoal reclamation
projects approved under SMCRA. The
final rule is consistent with section
411(h)(1) of SMCRA, which grants the
state legislatures and tribal councils
discretion as to how prior balance
replacement funds may be spent,
because the state legislature or tribal
council could direct these funds to be
expended on noncoal reclamation
projects pursuant to 30 CFR part 875. In
addition, optional coverage is consistent
with section 411(h)(2) of SMCRA, which
contains no specific instruction on the
use of certified in lieu funds and does
not place any restrictions upon them.
Therefore, certified states and tribes
now will have the discretionary
authority to direct some or all of these
funds to SMCRA noncoal reclamation
projects consistent with section 411 of
SMCRA and 30 CFR part 875. This
approach is also consistent with 30 CFR
875.14(b), which expressly allows states
and tribes to use certified in lieu funds
and prior balance replacement funds to
address coal problems discovered
subsequent to certification, a use that
also is not explicitly contained in either
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subsection (h)(1) or subsection (h)(2) of
section 411 of SMCRA, which authorize
the payment of prior balance
replacement and certified in lieu funds.
By allowing certified states and tribes
the latitude to conduct noncoal
reclamation projects under 30 CFR part
875 and an approved SMCRA noncoal
AML reclamation plan, we will
continue to promote the AML
reclamation plan as a central component
of SMCRA noncoal reclamation projects.
Activities carried out under a SMCRA
noncoal AML reclamation program
under 30 CFR part 875 will enjoy the
limited liability protections of section
405(l) of SMCRA because the work will
be conducted pursuant to an approved
AML reclamation plan that conforms to
subsections (e) and (f) of section 405 of
SMCRA and the applicable regulations.
We received no comments opposing
the proposed revisions to this section
and we are adopting the revisions to this
section as proposed.
Reclamation Priorities for Noncoal
Program (§ 875.15)
In our proposed rule, we did not
include any revisions to the language in
§ 875.15, which establishes priorities for
SMCRA noncoal AML reclamation
programs. However, the IMCC/
NAAMLP asked for clarification
regarding the priorities listed in that
section. In particular, they wanted to
know whether we would require
certified states and tribes to strictly
adhere to those priorities if the certified
state or tribe chooses to expend its AML
moneys pursuant to new
§ 875.11(b)(2)(ii), which authorizes
those states and tribes to ‘‘conduct a
noncoal reclamation program in
accordance with the requirements of
this part.’’ The commenters then opined
that, because the expenditure of funds
on a SMCRA noncoal AML reclamation
program under 30 U.S.C. part 875 is
voluntary, it would be inappropriate to
require a certified state or Indian tribe
to strictly follow the hierarchy of
priorities in this section. They suggested
that certified states and Indian tribes
should be able to choose which project
or projects to address, and in which
order. For example, they would like the
flexibility to address a priority 3 site
before all priority 1 and 2 sites are
corrected.
We did not make any changes to
§ 875.15 in response to this comment
because this section is derived from
subsections (c), (e), and (f) of section
411 of SMCRA, which are described
above in section I.A of this preamble.21
21 30
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The priorities and restrictions contained
in § 875.15 are part of the statutory
requirements for a SMCRA noncoal
AML reclamation program, and we must
give them effect. However, we have not
historically interpreted this language in
an inflexible manner. Section 411(c) of
SMCRA and § 875.15(b) state that the
expenditure of moneys ‘‘shall reflect’’
the priorities listed. This language is
similar to the language used to describe
the priorities for coal reclamation under
section 403(a) of SMCRA. See 30 U.S.C.
1233(a) (‘‘Expenditure of moneys . . .
shall reflect the following priorities in
the order stated. . . .’’). Our
longstanding approach for interpreting
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.’’ 22 Because section 411(c)
and § 875.15(b) are so similar to section
403(a), the same approach would apply
to noncoal reclamation projects: i.e.,
Priority 3 noncoal reclamation projects
may be conducted before completion of
all Priority 1 and 2 noncoal reclamation
projects so long as the overall SMCRA
noncoal AML reclamation program
generally reflects the priorities listed in
section 411(c) and 30 CFR 875.15.
Exclusion of Certain Noncoal
Reclamation Sites (§ 875.16)
Consistent with the proposed rule, we
are revising this section to prohibit the
reclamation of sites designated for
remedial action under UMTRCA 23 or
listed for remedial action under
CERCLA 24 by certified states or tribes
using prior balance replacement funds
or certified in lieu funds if they conduct
the reclamation as a component of a
voluntary SMCRA noncoal AML
reclamation program under part 875.
SMCRA clearly prohibits ‘‘[s]ites and
areas designated for remedial action
pursuant to [UMTRCA] or which have
been listed for remedial action pursuant
to [CERCLA]’’ from being ‘‘eligible for
expenditures from the Fund under’’
section 411 of SMCRA.25
The revision to § 875.16(b) will
continue to prohibit a certified state or
Indian tribe from expending money left
over from the pre-2008 distributions of
funds from section 402(g)(1) on
UMTRCA and CERCLA sites. In
addition, as described in the proposed
rule, this section is being revised to
22 73 FR at 67603 (summarizing OSM’s history of
this approach).
23 42 U.S.C. 7901 et seq.
24 42 U.S.C. 9601 et seq.
25 30 U.S.C. 1240a(d).
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prohibit the expenditure of prior
balance replacement funds and certified
in lieu funds for UMTRCA and CERCLA
sites if the state or tribe chooses to
conduct a SMCRA noncoal AML
reclamation program under part 875.
The revised rule does not prohibit a
certified state or tribe from expending
Title IV moneys on UMTRCA and
CERCLA sites if those projects are
completed outside the scope of a
SMCRA noncoal AML reclamation
program operating under part 875.
However, the certified state or tribe will
not receive limited liability coverage
under SMCRA for those projects.
We received no comments opposing
this proposed provision. We did,
however, receive a suggestion to
capitalize ‘‘State’’ in the regulatory text
to be consistent with capitalization of
this word elsewhere in our regulations.
We are adopting the proposed rule with
this editorial change.
Land Acquisition Authority—Noncoal
(§ 875.17)
As stated in the proposed rule, we are
revising this section to confirm that the
requirements specified in parts 877
(Rights of Entry) and 879 (Acquisition,
Management and Disposition of Lands
and Water) also apply to a state’s or
tribe’s SMCRA noncoal AML
reclamation projects conducted
voluntarily under part 875. We received
no comments opposing the proposed
changes to this section and we are
adopting the changes with a minor
revision for clarity.
Limited Liability (§ 875.19)
Consistent with the proposed rule, we
are revising this section to clarify that
no state or Indian tribe conducting
noncoal reclamation projects, including
the reclamation of noncoal AML sites
and the construction of certain utilities
and public facilities, under the
provisions of part 875 is liable under
any provision of Federal law for any
costs or damages as a result of action
taken or omitted in the course of
carrying out an approved state or Indian
tribe AML reclamation plan. The
revision is also consistent with section
405(l) of SMCRA, as this section
preserves state and tribal liability for
costs or damages caused by a state’s or
tribe’s gross negligence or intentional
misconduct when carrying out a
SMCRA noncoal program under an
approved reclamation plan.
Although not specifically referring to
this provision, one commenter
requested that we clarify whether the
limited liability provisions of section
405(l) of SMCRA and the Federal
regulations would ‘‘provide a certified
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state or tribal program operating under
a federally approved state abandoned
mine program with exemption from
liability under the third-party lawsuit
provision of the Clean Water Act[.]’’
This commenter noted that the
legislative history surrounding section
405(l) specifically refers to section
405(l) as limiting the liability of
CERCLA for reclamation projects
associated with eligible noncoal
abandoned mine sites ‘‘so long as the
project is undertaken pursuant to a
federally approved reclamation plan.’’
See H.R. Rep. 101–294, at 30, 37 (1989).
We have opted not to make any
changes to the regulatory text based on
this comment. We note that the
language of section 405(l) of SMCRA
and § 875.19 limits liability ‘‘under any
provision of Federal law for any costs or
damages as a result of action taken or
omitted in the course of carrying out an
approved State or Indian tribe
abandoned mine reclamation plan.’’ 30
U.S.C. 1235(l) (emphasis added). This
limited liability protection does not
exempt states or tribes from complying
with applicable Federal laws, including
the Clean Water Act.26 Rather, it
protects a state or tribe from paying for
costs or damages that may arise as a
result of the state’s or tribe’s actions or
inactions while carrying out its
approved abandoned mine reclamation
plan. All grant recipients must provide
assurances to OSMRE that activities
funded by the AML Fund, certified in
lieu funds, or prior balance replacement
funds will comply with Federal laws, as
well as state, tribal, and local laws. We
are unaware of any instances where
states or tribes have attempted to rely on
this provision to avoid complying with
the Clean Water Act or any other
Federal law. Nevertheless, until such
time as the courts define the scope of
coverage under section 405(l), we
cannot definitively state the parameters
of the limited liability protection
provision nor foresee all future possible
factual scenarios in which a state or
tribe may raise section 405(l) of SMCRA
as a defense against a claim for costs or
damages arising from the state’s or
tribe’s actions or inactions while
carrying out an approved abandoned
mine reclamation plan.
We are making one minor revision to
this section from the language as
proposed. We removed the word
‘‘certified’’ from the first sentence of this
rulemaking because, according to
§ 875.11, this part applies to both
noncoal reclamation projects conducted
by certified states and tribes pursuant to
SMCRA noncoal AML reclamation
26 33
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programs under subsections (b) through
(g) of section 411 of SMCRA and part
875 as well as to noncoal reclamation
activities conducted by uncertified
states consistent with section 409 of
SMCRA and the applicable regulations.
We originally proposed to include the
word ‘‘certified’’ to ensure that these
states and tribes would be eligible for
limited liability coverage, and we did
not intend to remove this coverage from
uncertified states. Thus, removing the
word ‘‘certified’’ eliminates the
possibility of any unintended loss of
limited liability coverage for uncertified
states performing authorized noncoal
reclamation work.
Contractor Eligibility (§ 875.20)
As described in the proposed rule, we
are revising this section to clarify that
certified states and tribes that
voluntarily conduct noncoal
reclamation activities under part 875
must comply with the contractor
eligibility requirements. This section
also applies to certified states and tribes
that conduct coal reclamation to
maintain certification. We received no
comments opposing the proposed
revisions to this section and we are
adopting the rule as proposed with a
minor revision for clarity.
rljohnson on DSK3VPTVN1PROD with RULES
3. How are we revising Part 877—Rights
of Entry?
We did not propose any revisions to
part 877 in the proposed rule, but we
are making minor, non-substantive
revisions to § 877.1 (Scope) for clarity in
response to a comment suggesting that
we add introductory language to part
877 to clarify that ‘‘noncoal’’ replaces all
references to ‘‘coal’’ when certified
states and tribes are conducting noncoal
reclamation projects under section 411
of SMCRA and part 875 of the
regulations. The commenter
acknowledged that the revisions to
§ 875.17 would have the same effect, but
the commenter stated that repeating this
language in part 877 would improve
clarity and avoid confusion. We agree
with the commenter and are adding the
requested language to § 877.1.
4. How are we revising Part 879—
Acquisition, Management, and
Disposition of Lands and Water?
Because the final rule modifies part
875 to allow certified states and tribes
to voluntarily conduct noncoal
reclamation projects under SMCRA, we
are revising, consistent with the
proposed rule, part 879 so that the
procedures related to acquisition,
management, and disposition of land
and water are consistent with this
option. In general, certified states and
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Indian tribes that voluntarily conduct
noncoal reclamation projects under part
875 will be required to follow the
provisions of part 879. Consistent with
the proposed rule, we also are revising
§ 879.15 to specify that all moneys
received by a certified state or tribe in
the context of their noncoal reclamation
projects conducted under part 875 must
be handled in accordance with § 885.19
to ensure that any moneys received from
the disposition of lands and waters are
returned to the AML reclamation
program. Each change, a summary of the
comments we received, if any, and our
responses to these comments are
described below in more detail.
Scope (§ 879.1)
Consistent with the proposed rule, we
are revising this section to clarify its
applicability to certified states and
tribes that choose to conduct noncoal
reclamation projects under part 875. We
received no comments opposing our
proposed revisions to § 879.1. However,
one commenter suggested that we add
language to the introduction of part 879
to clarify that ‘‘noncoal’’ replaces all
references to ‘‘coal’’ when certified
states and tribes are conducting noncoal
reclamation projects under part 875.
The commenter acknowledged that the
revisions to § 875.17 would have the
same effect, but the commenter stated
that repeating this language in part 879
would improve clarity and avoid
confusion.
We agree with the commenter.
Accordingly, we are revising § 879.1 to
reflect the changes that we proposed,
and we are adopting additional language
to clarify that ‘‘noncoal’’ replaces all
references to ‘‘coal’’ when certified
states and tribes are conducting noncoal
reclamation projects under part 875.
Land Eligible for Acquisition (§ 879.11)
As described in the proposed rule, we
are revising §§ 879.11(a) and 879.11(b)
to clarify that these sections apply to a
certified state or Indian tribe that
chooses to conduct noncoal reclamation
activities under part 875. In addition,
we determined that previous § 879.11
was not as clear as we intended, and we
restructured § 879.11(a) to confirm that
OSMRE must execute a written approval
and make the findings required by
§§ 879.11(a)(1) and 879.11(a)(2) when
we acquire land. We received no
comments opposing the proposed
changes and we are adopting the
revisions to this section as proposed
with minor revisions to §§ 879.11(a)(2)
and 879.11(b) for clarity.
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Disposition of Reclaimed Land
(§ 879.15)
As proposed, we are revising
§ 879.15(h) to specify that moneys
received from disposal of land by
certified states and tribes conducting a
SMCRA noncoal AML reclamation
program under part 875 must be
handled as unused funds in accordance
with § 885.19. We received no
comments opposing the proposed
changes to this section and we are
adopting the rule as proposed.
5. How are we revising Part 884—State
Reclamation Plans?
As described in the proposed rule, we
are revising part 884 to specify the
contents of an AML reclamation plan for
certified states and Indian tribes. In
particular, we are revising two
sections—§§ 884.13 and 884.17. Each
change, a summary of the comments we
received, if any, and our responses to
these comments are described below in
more detail.
Content of Proposed State Reclamation
Plan (§ 884.13)
As proposed, we are revising this
section to require that an AML
reclamation plan for a certified state or
tribe contain all components required
for an AML reclamation plan for an
uncertified state or tribe, plus a
commitment to address eligible coal
problems found or occurring after
certification as required in
§§ 875.13(a)(3) and 875.14(b). This is a
change from the 2008 Rule that
specified that a noncoal AML
reclamation plan for a certified state or
tribe need include only two
components: (1) a designation by the
governor of the state or the governing
authority of the Indian tribe identifying
the agency authorized to administer the
AML reclamation program and to
receive and administer grants, and (2) a
commitment to address eligible coal
problems found or occurring after
certification, as required in
§§ 875.13(a)(3) and 875.14(b).
We are making this change so that
certified states and tribes will be able to
avail themselves of the limited liability
protections afforded by section 405(l) of
SMCRA. To receive the protection of
section 405(l), certified states and
Indian tribes must conduct noncoal
reclamation projects under 30 CFR part
875 in accordance with an approved
AML reclamation plan that conforms to
paragraphs (e) and (f) of section 405 and
the applicable regulations.
We received no comments opposing
our proposed revisions to this section.
The final rule that we are adopting
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today is substantively identical to
proposed § 884.13. However, we are
reorganizing this section for clarity and
consistency with current rule drafting
principles. The final rule consolidates
the requirements that apply to all states
and tribes (both certified and
uncertified) in paragraph (a). Paragraph
(b) contains the additional requirement
that applies to certified states and tribes.
rljohnson on DSK3VPTVN1PROD with RULES
Other Uses by Certified States and
Indian Tribes (§ 884.17)
In response to a comment received on
the proposed rule, we are revising
section 884.17 in the final rule to
alleviate confusion about whether
certain restrictions in that section apply
to public facility projects. Section
884.17 details the contents of a
reclamation plan for a certified state or
tribe that chooses to use AML funds for
a specific type of noncoal reclamation
project—a public facility project. In
particular, this section allows certified
states and tribes to expend money on
public facility projects ‘‘when the
Governor of the State has certified and
the Director [of OSM] has concurred
that’’ (1) all reclamation, both coal and
noncoal reclamation, has been
completed, (2) the ‘‘specific public
facilities are required as a result of coal
development,’’ and (3) other funds
available under the Mineral Leasing Act
of 1920 (MLA),27 as amended, or the
Payment in Lieu of Taxes Act (PILTA),28
are inadequate.
This provision was first proposed in
1978 as § 850.12(d). See Abandoned
Mine Land Reclamation Program
Provisions, 43 FR 17918, 17930 (Apr.
25, 1978). The preamble to the February
2013 proposed rule explains that we
proposed § 850.12 to allow states and
tribes to include noncoal reclamation
activities in their initial state or tribal
AML reclamation plan. See 43 FR at
17921. This 1978 provision, § 850.12,
helped to implement section 402(g)(2) of
SMCRA, which originally stated:
Fifty per centum of the funds collected
annually in any State or Indian reservation
shall be allocated to that State or Indian
reservation by the Secretary pursuant to any
approved abandoned mine reclamation
program to accomplish the purposes of this
title. Where the Governor of a State or the
head of a governing body of a tribe certifies
that (i) objectives of the fund set forth in
sections 403 and 409 have been achieved, (ii)
there is a need for construction of specific
public facilities in communities impacted by
coal development, (iii) impact funds which
27 30
U.S.C. 181 et seq.
existing 30 CFR 884.17(a)(3) refers to
the ‘‘Payment In Lieu of Taxes Act’’ as the ‘‘Act of
October 20, 1978, Public Law 94–565 (90 Stat.
2662)’’ the correct reference to that Act is the ‘‘Act
of October 20, 1976.’’
28 Although
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may be available under provisions of the
Federal Mineral Leasing Act of 1920, as
amended, or the Act of October 20, 1976,
Public Law 94–565 (90 Stat. 2662), are
inadequate for such construction, and (iv) the
Secretary concurs in such certification, then
the Secretary may continue to allocate all or
part of the 50 per centum share to that State
or tribe for such construction: Provided,
however, That if funds under this
subparagraph (2) have not been expended
within three years after their allocation, they
shall be available for expenditure in any
eligible area as determined by the Secretary.
30 U.S.C. 1232(g)(2) (1978); see also 91
Stat. 458.
When OSMRE finalized the 1978 rule,
it renumbered the provision as
§ 884.12(d). See Abandoned Mine Land
Reclamation Program Provisions, 43 FR
49932, 49948 (Oct. 25, 1978). In 1982,
OSMRE revised and recodified
§ 884.12(d) as § 884.17. See Revision of
the Abandoned Mine Land Reclamation
Program Rules, 47 FR 28574, 28600
(June 30, 1982). As explained in the
preamble to the corresponding proposed
rule, we proposed this change so as ‘‘to
avoid confusion as to when impact
assistance is available and how it can be
obtained.’’ Proposed Revision of the
Abandoned Mine Land Reclamation
Program Regulations, 46 FR 60778,
60786 (Dec. 11, 1981).
Among the changes made by AMRA
in 1990 was the removal of restrictions
on public facility projects contained in
the second sentence of section 402(g)(2),
as originally enacted in 1977. AMRA
also added paragraphs (a) through (g) to
section 411, which contain the current
restrictions on the types of noncoal
reclamation projects, including public
facility projects, that can be financed
with AML moneys by certified states
and tribes. Although we amended our
regulations in 1994 to incorporate the
amendments to SMCRA contained in
AMRA and the Energy Policy Act of
1992, we did not make any changes to
§ 884.17. See Abandoned Mine Land
Reclamation Fund Reauthorization
Implementation, 59 FR 28136 (May 31,
1994). At that time, however, we did
add § 875.15 to incorporate the
expanded authority of certified states
and tribes to use AML funds for projects
related to the protection, repair,
replacement, or enhancement of
facilities used by the public, if these
facilities are affected by coal or noncoal
mining activities. See 59 FR at 28161–
28164.
Although we did not amend § 884.17
in 1994, we recognized that the
restrictions contained in the second
sentence of section 402(g)(2) of SMCRA,
as originally enacted in 1977, were
inapplicable and that certified States
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and Tribes would not have to meet the
criteria in § 884.17 in order to expend
AML funds on public facility projects
under SMCRA. In response to a
comment that suggested that we require
a certified state or tribe to complete all
known coal and noncoal reclamation
before allowing the construction of
public facility projects under section
411(f), we stated:
[A] State Governor or head of a governing
body of an Indian tribe may request funding
for activities pursuant to Section 411(f) at any
time after certification. There is no
requirement that a State or Indian tribe
complete all known noncoal reclamation
before utilizing this authority. The
commenters’ premise is based on the original
statutory language of Section 402(g)(2) as
enacted in 1977. This section provided that
once a state had completed all of its coal and
noncoal reclamation, it could utilize AML
funds for community impact assistance. This
old statutory scheme was deleted, and OSM
can find no references in the legislative
history which supports the commenter’s
position. . . . In the absence of restricting
language in Section 411(f) or qualifying
language in Section 411(c), OSM believes the
proper interpretation is to permit States and
Indian tribes to utilize the authority in
Section 411(f) without regard to the
completion of the priorities specified in
Section 411(c) [pertaining to noncoal
reclamation].
59 FR at 28163. Thus, since the
enactment of AMRA and the adoption of
§ 875.15, we have not required certified
states and tribes to meet the criteria in
§ 884.17 in order to expend AML funds
on public facility projects under
SMCRA.
In 2008, we revised our AML
regulations to implement the 2006
amendments to SMCRA. At that time,
we made editorial changes to § 884.17,
such as updating a cross-reference and
updating the title. We made no
substantive changes to this section at
that time. See 73 FR at 67642. In
response to a comment in the 2008
rulemaking, we explained that we were
retaining the provision in order to
accommodate unexpended State and
Tribal share moneys distributed to
certified states and tribes prior to the
effective date of the 2006 amendments.
See 73 FR at 67617. However, we
reiterated that this section should
‘‘reflect the greater discretion that
certified States and Indian tribes now
have to use Title IV moneys’’ and that
‘‘§ 884.17(a) no longer applies to
certified States and Indian tribes using
prior balance replacement funds or
certified in lieu funds.’’ Id.
Although we did not propose any
changes to this section in the most
recent proposed rule, we received one
comment requesting that we make
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revisions to the section, if appropriate,
to clarify how the section relates to the
flexibility granted to certified states and
tribes by the 2006 amendments to use
their Title IV funds. In response to the
comment, we reviewed the history of
this provision and verified that no
certified state or tribe has any funds
remaining in their Title IV grants that
would be subject to these restrictions.
Accordingly, we have decided to revise
§ 884.17(a) to remove these outdated
restrictions.
New § 884.17(a) incorporates the
language of section 411(f) of SMCRA,
which provides that certified states and
tribes may expend AML moneys on
public facility projects if the governor of
the state or the head of the governing
body of a tribe ‘‘determines there is a
need for activities or construction of
specific public facilities related to the
coal or minerals industry in States
impacted by coal or minerals
development and the Secretary
concurs.’’ 30 U.S.C. 1240a(f). Thus, the
restrictions in previous § 884.17(a)(1)
and (3) that required certified states to
complete all coal and noncoal
reclamation projects and use any impact
assistance funds available under the
MLA or PILTA before AML funds could
be used on specific public facility
projects have been removed. The
restriction in previous § 884.17(a)(2) has
been modified to reflect the language of
section 411(f) of SMCRA and
incorporated into new § 884.17(a).
This revision is consistent with
section 405(l) of SMCRA, which
provides that the limited liability
protection of that provision applies only
to ‘‘action taken or omitted in the course
of carrying out a State abandoned mine
reclamation plan approved under this
section [section 405].’’ The change to
this regulation allows certified states
and tribes to revise their reclamation
plans to provide for the construction of
public facility projects under those
plans in accordance with the current
statutory and regulatory restrictions.
Any public facilities constructed under
an approved AML reclamation plan in
accordance with part 875 would be a
noncoal reclamation project and would
receive limited liability protection as
authorized by section 405(l) of SMCRA
and 30 CFR 875.19. Conversely, public
facility projects constructed with AML
funds, but which are not undertaken as
part of the approved AML reclamation
plan in accordance with part 875, will
not receive limited liability protection.
6. How are we revising Part 885—Grants
to Certified States and Indian Tribes?
As described in the proposed rule and
discussed in more detail below, we are
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revising this part to grant certified states
and tribes the discretionary authority to
use prior balance replacement funds
and certified in lieu funds for noncoal
reclamation projects under part 875. To
accomplish this goal, we are revising
§ 885.12 to expand the list of activities
eligible for certified program funding,
and we are revising § 885.16 to ensure
that the appropriate project
authorization and environmental
reviews are conducted. Finally, we are
revising § 885.20 to ensure that we
receive the necessary grant information
and project reporting for all noncoal
reclamation projects conducted under
part 875.
What can I use grant funds for?
(§ 885.12)
As proposed, we are revising
§ 885.12(b) to clarify that certified states
and tribes may use prior balance
replacement funds and certified in lieu
funds for noncoal reclamation projects
under section 411 of SMCRA and 30
CFR part 875. We received no comments
opposing our proposed revisions to this
section, and we are adopting the
revisions as proposed, along with minor
non-substantive organizational changes
to enhance clarity and be consistent
with plain language principles.
What responsibilities do I have after
OSMRE approves my grant? (§ 885.16)
As described in the proposed rule, we
are revising § 885.16(e) to provide that
certified states and tribes that use prior
balance replacement funds and certified
in lieu funds for noncoal reclamation
projects under part 875 must request
and receive a written authorization from
us to proceed before construction may
begin on individual projects. Our
authorization to proceed denotes that
both the state or tribe and OSMRE have
taken all actions necessary to ensure
compliance with the National
Environmental Policy Act of 1969
(NEPA),29 and any other applicable
laws, clearances, permits, or
requirements.
To receive an authorization to
proceed from us, a certified state or tribe
must follow its approved AML
reclamation plan and conduct
administrative and site development
activities within the procedural
framework provided by 30 CFR part 875
and other applicable regulations. If we
issue an authorization to proceed, the
certified state or tribe will qualify under
section 405(l) of SMCRA and 30 CFR
875.19 for limited liability protection for
that project, including the
administrative and programmatic
29 42
PO 00000
activities directly related to that project.
However, a certified state or Indian tribe
may elect to conduct noncoal
reclamation projects outside the
parameters of a SMCRA noncoal AML
reclamation program under 30 CFR part
875. Those activities may include
projects at CERCLA or UMTRCA sites as
provided by other laws. If a certified
state or tribe conducts noncoal
reclamation projects outside an
approved SMCRA AML reclamation
plan and part 875, it need not request
an authorization to proceed from us,
and it will not receive limited liability
protection for that project.
Certified states and tribes have many
years of experience designing and
carrying out noncoal reclamation
projects with moneys from the AML
Fund. As with those projects,
submissions for noncoal reclamation
projects using prior balance replacement
funding and certified in lieu funding
must contain information sufficient to
comply with NEPA and AML grant and
administrative requirements. These
review elements include, but are not
limited to, information sufficient for the
conduct of assessments under NEPA,
the Endangered Species Act, National
Historic Preservation Act, and the Clean
Water Act. In addition, we will review
proposals and conduct oversight
activities as needed to ensure that our
program requirements related to site
eligibility, grants management, and
AML Inventory management are met.
Proposals that receive our approval as
noncoal reclamation projects must be
implemented consistent with the scope
of work that we approve, and we must
review changes in project scope or
activities that would materially alter the
environmental consequences of the
reclamation. We received no comments
opposing our proposed revisions to this
section and are adopting the revisions as
proposed, with minor editorial revisions
for clarity.
What must I report? (§ 885.20)
Consistent with the proposed rule, we
are revising § 885.20 to clarify that
certified programs using prior balance
replacement funds and certified in lieu
funds for noncoal reclamation projects
under section 411 of SMCRA and part
875 of the regulations must update the
AML inventory for each noncoal
reclamation project as it is funded. We
received no comments opposing our
proposed revisions to this section and
are adopting the revisions as proposed.
U.S.C. 4321 et seq.
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Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations
III. Procedural Matters and Required
Determinations
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A. Regulatory Planning and Review
(Executive Orders 12866 and 13563)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs (OIRA) will review all significant
rules. OIRA has determined that this
rule is not significant.
Executive Order 13563 reaffirms the
principles of Executive Order 12866
while calling for improvements in the
nation’s regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. Executive Order 13563
emphasizes further that regulations
must be based on the best available
science and that the rulemaking process
must allow for public participation and
an open exchange of ideas. We have
developed this rule in a manner
consistent with these requirements.
Seven certified states and tribes will
be affected by this rule, which removes
a disincentive for certified states and
tribes to undertake noncoal reclamation
projects. We estimate that
approximately 30 to 60 noncoal
reclamation projects will be covered by
SMCRA’s limited liability provision
each year, although we cannot predict
whether these projects would have been
undertaken in the absence of this rule.
This rule does not impose any
additional mandatory costs on certified
states and tribes because participation is
voluntary. Reclamation projects
improve the quality of the human
environment and eliminate hazardous
conditions while improving water
quality, air quality, wildlife habitat,
community aesthetics, and the visual
landscape. In the future, other states
will be subject to this rule upon
certification.
B. Regulatory Flexibility Act
The Department of the Interior
certifies that this rule will not have a
significant economic effect on a
substantial number of small entities
under the Regulatory Flexibility Act
(RFA).30 The revisions are not expected
to have a significant adverse economic
impact on the regulated community,
including small entities. This rule will
affect the states of Louisiana, Montana,
Texas, and Wyoming and the Crow
Tribe, the Hopi Tribe, and the Navajo
Nation.
C. Small Business Regulatory
Enforcement Fairness Act
This rule is not a major rule under the
Small Business Regulatory Enforcement
Fairness Act.31 For the reasons
previously discussed, the rule will not—
a. Have an annual effect on the
economy of $100 million or more.
b. Cause a major increase in costs or
prices for consumers, individual
industries; Federal, state, or local
government agencies; or geographic
regions.
c. Have significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of U.S.-based enterprises to compete
with foreign-based enterprises.
D. Unfunded Mandates
This rule will not impose an
unfunded mandate on state, local, or
tribal governments or the private sector
of more than $100 million per year. The
rule will 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 32 is not required.
E. Executive Order 12630—Takings
The rule will not have significant
takings implications because it is not a
governmental action capable of
interference with constitutionally
protected property rights. A takings
implication assessment is not required.
F. Executive Order 13132—Federalism
This rule will not alter or affect the
relationship between states and the
Federal Government. Therefore, the rule
will not have significant Federalism
implications. Consequently, there is no
need to prepare a Federalism
assessment.
G. Executive Order 12988—Civil Justice
Reform
The Office of the Solicitor for the
Department of the Interior has
determined that this rule will not
unduly burden the judicial system and
that it meets the requirements of
sections 3(a) and 3(b)(2) of the Executive
Order.
H. Executive Order 13175—
Consultation and Coordination With
Indian Tribal Governments
In accordance with Executive Order
13175, we have evaluated the potential
31 5
30 5
U.S.C. 601 et seq.
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U.S.C. 804(2).
U.S.C. 1534.
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effects of this rule on Federallyrecognized Indian tribes and have
determined that the revisions will not
have substantial direct effects 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.
We invited tribal representatives to
consult with us on our intention to
propose this rule. In response to a
request for consultation, we met with
representatives from the Hopi Tribe and
Navajo Nation on July 10, 2012, at
Kykotsmovi, Arizona. The Crow Tribe
did not request consultation.
The Hopi Tribe and the Navajo Nation
stated that they would like the rule to
allow a tribe with an approved AML
reclamation program to be able to
request limited liability protection for
some projects but to decline it for
others. Our rule accommodates this
approach by granting certified states and
tribes discretionary authority to conduct
noncoal reclamation projects (including
construction of certain utility and
public facility projects) pursuant to 30
CFR part 875 under the aegis of an
approved SMCRA noncoal AML
reclamation plan and the applicable
regulations whenever the state or tribe
wishes to avail itself of the limited
liability protection of section 405(l) of
SMCRA and 30 CFR 875.19.
The tribes also indicated that they
would prefer that the limited liability
protections apply to all projects,
including public facility projects, and
that OSMRE should be involved in the
NEPA process because OSMRE
understands the required NEPA
procedures. The final rule incorporates
provisions accommodating these
requests.
Similarly, the tribes requested that the
limited liability protection apply to
noncoal AML projects, as they were
concerned that they could face liability
issues if they chose to remediate sites,
such as abandoned uranium mines. As
mentioned above, however, Section
411(d) of SMCRA, effectively specifies
that sites listed for remedial action
under UMTRCA or CERCLA are not
eligible for projects under the noncoal
reclamation program operating under
part 875. Consequently, under our rule,
certified states and tribes may not
receive limited liability protection for
noncoal AML projects at such sites. We
emphasize, however that there is no
prohibition against certified states and
tribes using prior balance replacement
funds or certified in lieu funds moneys
at UMTRCA and CERCLA sites as long
as they do so outside the scope of a
SMCRA noncoal AML reclamation
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program. But, because of the statutory
limitation, they cannot receive limited
liability coverage for those projects.
States and tribes should be cognizant
that, while the limited liability
provision protects them from costs and
damages under Federal laws, they must
still comply with applicable Federal
laws. All grant recipients, including
Indian tribes, must provide assurances
to OSMRE that expenditures of AML
funding will comply with Federal laws,
as well as state, tribal, and local laws.
The tribes questioned how the rule
might affect a tribe’s AML reclamation
plan. Certified states and tribes will
need to conduct a detailed review of
their existing approved AML
reclamation plans to determine if any
changes are necessary as a result of
adoption of this final rule. OSMRE staff
will be available to assist in this review.
Because noncoal reclamation was
routinely conducted by certified states
and tribes prior to our 2008 Rule, it is
possible that some or all of the approved
AML reclamation plans may contain
language sufficient to implement the
rule with only minimal changes.
The tribes also voiced concern about
the extent of limited liability protection
provided to public facility projects. The
limited liability provision extends
protections to public facility projects if
they are conducted under an approved
SMCRA noncoal AML reclamation plan
consistent with paragraphs (b) through
(g) of section 411 of SMCRA and 30 CFR
part 875. The limited liability provision
in 30 CFR 875.19 specifies that a state
or Indian tribe is not liable under
Federal law for any costs or damages as
a result of any action it takes or omits
to take while conducting noncoal
reclamation activities under part 875.
The provision does not preclude
liability for gross negligence or
intentional misconduct by a state or
Indian tribe.
In addition, the tribes commented on
the relationship between SMCRA’s
limited liability provision and the
Department of the Interior’s trust
responsibilities. More specifically, the
tribes asked if OSMRE assumes liability
whenever it provides funding to a tribe.
The answer to that question is no.
OSMRE distributes AML funding to a
tribe not as part of a trust relationship
but, instead, as part of a government-togovernment relationship. The limited
liability provision of section 405(l) of
SMCRA, in turn, reduces the potential
liability of a state or Indian tribe under
Federal law for costs or damages for
actions taken or omitted when carrying
out an approved AML reclamation plan
and the applicable regulations. All grant
recipients, including Indian tribes, must
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provide assurances to OSMRE that
expenditures of AML funding will
comply with Federal laws, as well as
state, tribal, and local laws. By
providing funding, OSMRE assumes no
liability for actions taken by the tribe or
tribal officials. This rule does not affect
or relate to the Department’s trust
responsibilities.
I. Executive Order 13211—Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not considered a
significant energy action under
Executive Order 13211 because it is not
classified as a significant rule under
Executive Order 12866 and because the
revisions will not have a significant
adverse effect on the supply,
distribution, or use of energy. Therefore,
a statement of energy effects is not
required.
J. Paperwork Reduction Act
This rule contains no new
information collection requirements that
are not already covered by Office of
Management and Budget (OMB) control
numbers 1029–0059 (for 30 CFR parts
735, 885 and 886 and grant forms OSM–
47, OSM–49 and OSM–51) and 1029–
0087 (for the OSM–76—Problem Area
Description Form). We anticipate that
the rule will not result in an increase in
either the number of respondents who
prepare grant forms or the burden per
respondent.
K. National Environmental Policy Act
We have determined that the
revisions in this rule are categorically
excluded from preparation of an
environmental assessment or
environmental impact statement under
the National Environmental Policy
Act,33 as provided in 43 CFR 46.205(b).
The specific categorical exclusion that
applies is the exclusion in 43 CFR
46.210(i). This exclusion includes
policies, directives, regulations, and
guidelines that are of an administrative,
financial, legal, technical, or procedural
nature. In this case, extension of the
limited liability provision of section
405(l) to noncoal reclamation projects
conducted by certified states is a legal
matter. Moreover, this categorical
exclusion also covers policies,
directives, regulations, and guidelines
‘‘whose environmental effects are too
broad, speculative, or conjectural to
lend themselves to meaningful analysis
and will later be subject to the NEPA
process, either collectively or case-bycase.’’ 43 CFR 46.210(i). In this case,
33 42
PO 00000
U.S.C. 4332(2)(c).
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6445
because of the amount of discretion that
certified states and tribes have in
expending their AML funding, it is
unclear if or how this limited liability
coverage will affect the number of
noncoal reclamation projects performed.
However, as required by this rule at 30
CFR 885.16(e), any noncoal reclamation
project that is eligible for limited
liability protection must undergo
specific NEPA review during the grant
application process. Thus, this
categorical exclusion applies because, to
the extent that this rule generates any
environmental effects, these effects will
be analyzed at a later date when the
environmental effects are less ‘‘broad,
speculative, or conjectural.’’ In addition,
none of the extraordinary circumstances
listed in 43 CFR 46.215 applies.
L. Information Quality Act
In developing this rule, we did not
conduct or use a study, experiment, or
survey requiring peer review under the
Information Quality Act (Pub. L. 106–
554, section 15).
List of Subjects
30 CFR Part 700
Administrative practice and
procedure, 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 877
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,
Reporting and recordkeeping
requirements, Surface mining,
Underground mining.
30 CFR Part 884
Grant programs—natural resources,
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.
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Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations
Dated: December 3, 2014.
Janice M. Schneider,
Assistant Secretary, Land and Minerals
Management.
For the reasons set forth in the
preamble, the Department is amending
30 CFR parts 700, 875, 877, 879, 884,
and 885 as set forth below.
PART 700—GENERAL
1. The authority citation for part 700
is revised to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
Comprehensive Environmental
Response Compensation and Liability
Act of 1980 (42 U.S.C. 9601 et seq.)
using—
(1) Moneys distributed from the Fund
under section 402(g)(1) of the Act.
(2) Prior balance replacement funds
distributed to you under section
411(h)(1) of the Act where you are
conducting reclamation under the
provisions of this part.
(3) Certified in lieu funds distributed
to you under section 411(h)(2) of the Act
where you are conducting reclamation
under the provisions of this part.
2. Amend § 700.5 by adding a
definition for the term ‘‘SMCRA’’ in
alphabetical order to read as follows:
■
§ 700.5
§ 875.17 Land acquisition authority—
noncoal.
■
Definitions.
*
*
*
*
*
SMCRA means the Surface Mining
Control and Reclamation Act of 1977, 30
U.S.C. 1201 et seq., as amended.
*
*
*
*
*
PART 875—CERTIFICATION AND
NONCOAL RECLAMATION
3. The authority citation for part 875
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
Applicability.
*
*
*
*
*
(b) If you are a State or Indian tribe
that has certified under section 411(a) of
the Act—
(1) You must use State share or Tribal
share funds distributed to you under
section 402(g)(1) of the Act before
October 1, 2007, in accordance with this
part; and
(2) You may use prior balance
replacement funds distributed to you
under section 411(h)(1) of the Act,
certified in lieu funds distributed to you
under section 411(h)(2) of the Act, or
both, to—
(i) Maintain certification as required
by §§ 875.13 and 875.14 of this part; or
(ii) Conduct a noncoal reclamation
project in accordance with the
requirements of this part.
■ 5. In § 875.16, revise paragraph (b) to
read as follows:
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§ 875.16 Exclusion of certain noncoal
reclamation sites.
*
*
*
*
*
(b) You, the certified State or Indian
tribe, may not reclaim 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
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The requirements of parts 877 (Rights
of Entry) and 879 (Acquisition,
Management and Disposition of Lands
and Water) of this chapter apply to a
State’s or Indian tribe’s noncoal
reclamation projects conducted under
this part, except that, for purposes of
this section, the term ‘‘noncoal’’
replaces all references to ‘‘coal’’ in parts
877 and 879 of this chapter.
■ 7. Revise § 875.19 to read as follows:
§ 875.19
4. In § 875.11, revise paragraph (b) to
read as follows:
■
§ 875.11
6. Revise § 875.17 to read as follows:
Limited liability.
No State or Indian tribe conducting
noncoal reclamation activities under the
provisions of this part is liable under
any provision of Federal law for any
costs or damages as a result of action
taken or omitted in the course of
carrying out an approved State or Indian
tribe abandoned mine reclamation plan.
This section does not preclude liability
for costs or damages as a result of gross
negligence or intentional misconduct by
the State or Indian tribe. For purposes
of the preceding sentence, reckless,
willful, or wanton misconduct will
constitute gross negligence or
intentional misconduct.
■ 8. Revise § 875.20 to read as follows:
§ 875.20
Contractor eligibility.
Every successful bidder for any
contract by an uncertified State or
Indian tribe under this part, or for any
contract by a certified State or Indian
tribe to undertake a noncoal reclamation
project under this part, must be eligible
under §§ 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 applies only to any contracts by
a certified State or Indian tribe that are
for coal reclamation or that are for a
noncoal reclamation project under this
part.
PO 00000
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PART 877—RIGHTS OF ENTRY
9. The authority citation for part 877
is revised to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
■
10. Revise § 877.1 to read as follows:
§ 877.1
Scope.
This part establishes procedures for
entry upon lands or property by
OSMRE, States, and Indian tribes for
reclamation purposes. For certified
States or Indian tribes conducting
noncoal reclamation projects under the
provisions of part 875, the term
‘‘noncoal’’ replaces all references to
‘‘coal’’ in this part.
PART 879—ACQUISITION,
MANAGEMENT, AND DISPOSITION OF
LANDS AND WATERS
11. The authority citation for part 879
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
■
12. Revise § 879.1 to read as follows:
§ 879.1
Scope.
This part establishes procedures for
acquisition of eligible land and water
resources for emergency abatement
activities and reclamation purposes by
you, a State or Indian tribe, with an
approved reclamation program that has
not certified completion of coal
reclamation or a certified State or Indian
tribe conducting noncoal reclamation
activities under part 875 of this chapter,
or by us. It also provides procedures for
the management and disposition of
lands acquired by the State, the Indian
tribe, or us. For certified States or Indian
tribes conducting noncoal reclamation
projects under the provisions of part
875, the term ‘‘noncoal’’ replaces all
references to ‘‘coal’’ in this part.
■ 13. In § 879.11, revise paragraphs (a)
and (b) to read as follows:
§ 879.11
Land eligible for acquisition.
(a)(1) We may acquire land adversely
affected by past coal mining practices
with moneys from the Fund.
(2) You, an uncertified State or Indian
tribe or a certified State or Indian tribe
conducting noncoal reclamation
projects under part 875 of this chapter,
may acquire land adversely affected by
past coal mining practices with moneys
from the Fund or with prior balance
replacement funds and certified in lieu
funds provided under §§ 872.29 and
872.32 of this chapter, provided that we
first approve the acquisition in writing.
(3) Before acquiring land under
paragraph (a)(1) of this section or
approving land acquisition under
paragraph (a)(2) of this section, we must
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make a finding that the land acquisition
is necessary for successful reclamation
and that—
(i) The acquired land will serve
recreation, historic, conservation, and
reclamation purposes or provide open
space benefits after restoration,
reclamation, abatement, control, or
prevention of the adverse effects of past
coal mining practices; and
(ii) 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 or a certified State or Indian tribe
conducting noncoal reclamation
projects under part 875 of this chapter,
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 and certified in lieu
funds provided under §§ 872.29 and
872.32 of this chapter. We, OSMRE, 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 the
reclamation program.
(2) Where an emergency situation
exists and a written finding as set forth
in § 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.
*
*
*
*
*
■ 14. In § 879.15, revise paragraph (h) to
read as follows:
§ 879.15
Disposition of reclaimed land.
rljohnson on DSK3VPTVN1PROD with RULES
*
*
*
*
*
(h) You must return all moneys
received from disposal of land under
this part to us. We will handle all
moneys received under this paragraph
as unused funds in accordance with
§§ 885.19 and 886.20 of this chapter.
PART 884—STATE RECLAMATION
PLANS
VerDate Sep<11>2014
14:41 Feb 04, 2015
Jkt 235001
16. Amend § 884.13 as follows:
a. Remove the introductory text;
b. Redesignate paragraphs (a) through
(f) as paragraphs (a)(1) through (a)(6),
respectively;
■ c. In newly redesignated paragraph
(a)(3), redesignate paragraphs (1)
through (7) as paragraphs (a)(3)(i)
through (vii), respectively;
■ d. In newly redesignated paragraph
(a)(4), redesignate paragraphs (1)
through (4) as paragraphs (a)(4)(i)
through (iv), respectively;
■ e. In newly redesignated paragraph
(a)(5), redesignate paragraphs (1)
through (3) as paragraphs (a)(5)(i)
through (iii), respectively;
■ f. In newly redesignated paragraph
(a)(6), redesignate paragraphs (1)
through (3) as paragraphs (a)(6)(i)
through (iii), respectively; and
■ g. Add new paragraphs (a)
introductory text and (b).
The additions read as follows:
§ 884.13 Content of proposed State
reclamation plan.
(a) Requirements applicable to all
eligible States and Indian tribes. You
must submit the proposed reclamation
plan to the Director in writing. The plan
must include the information in
paragraphs (a)(1) through (6) of this
section.
*
*
*
*
*
(b) Additional requirement applicable
to certified States and Indian tribes. If
you are a certified State or Indian tribe,
the plan must include a commitment to
address eligible coal problems found or
occurring after certification as required
in §§ 875.13(a)(3) and 875.14(b) of this
chapter.
■ 17. In § 884.17, revise paragraph (a) to
read as follows:
§ 884.17 Other uses by certified States and
Indian tribes.
(a) The reclamation plan for a
certified State or Indian tribe may
provide for the construction of specific
public facilities related to the coal or
minerals industries in States impacted
by coal or minerals development. This
form of assistance is available when the
Governor of the State or the head of a
governing body of an Indian tribe
determines there is a need for such
activities or construction and the
Director concurs.
*
*
*
*
*
PART 885—GRANTS FOR CERTIFIED
STATES AND INDIAN TRIBES
18. The authority citation for part 879
continues to read as follows:
■
15. The authority citation for part 884
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
■
■
■
Authority: 30 U.S.C. 1201 et seq.
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
6447
19. In § 885.12, revise paragraph (b) to
read as follows:
■
§ 885.12
What can I use grant funds for?
*
*
*
*
*
(b)(1) You may use grant funds as
established for each type of funds you
receive.
(2) You may use prior balance
replacement funds as provided under
§ 872.31 of this chapter.
(3) You may use certified in lieu
funds as provided under § 872.34 of this
chapter.
(4) You may use the following moneys
for noncoal reclamation projects under
section 411 of the Act and part 875 of
this chapter:
(i) Moneys that may be available to
you from the Fund.
(ii) Prior balance replacement funds
made available under § 872.31 of this
chapter.
(iii) Certified in lieu funds as
provided under § 872.34 of this chapter.
*
*
*
*
*
■ 20. In § 885.16, revise the section
heading and paragraph (e) to read as
follows:
§ 885.16 What responsibilities do I have
after OSMRE approves my grant?
*
*
*
*
*
(e) If you conduct a coal reclamation
project under part 874 of this chapter or
noncoal reclamation project under part
875 of this chapter, you must not
expend any construction funds until
you receive a written authorization from
us to proceed on an 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 (42 U.S.C. 4321 et seq.) and
any other applicable laws, clearances,
permits, or requirements.
*
*
*
*
*
■ 21. In § 885.20, revise paragraph (c) to
read as follows:
§ 885.20
What must I report?
*
*
*
*
*
(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 coal reclamation
projects or noncoal reclamation projects
under part 875 of this chapter, you must
update the AML inventory for each
reclamation project as you fund it.
(2) You must update the AML
inventory for each reclamation project
you complete as you complete it.
(3) We must approve any amendments
to the AML inventory after December
20, 2006. We define amendment as any
E:\FR\FM\05FER1.SGM
05FER1
6448
Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations
coal problems added to the AML
inventory in a new or existing problem
area.
[FR Doc. 2015–02278 Filed 2–4–15; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number–USCG–2014–0995]
RIN 1625–AA87
Moving Security Zone; Escorted
Vessels; MM 90.0–106.0, Lower
Mississippi River; New Orleans, LA
Table of Acronyms
Coast Guard, DHS.
ACTION: Interim rule with request for
comments.
AGENCY:
The Coast Guard is
establishing an interim rule providing
for temporary moving security zones
around vessels being escorted by one or
more Coast Guard or other Federal,
State, or local law enforcement assets,
on the navigable waters of the Lower
Mississippi River, New Orleans, LA.
These temporary moving security zones
are necessary for the safe transit and
mooring of vessels requiring escort
protection by the Coast Guard for
security reasons as well as the safety
and security of personnel and port
facilities. Entry into, remaining in or
transiting through these zones is
prohibited for all vessels, mariners, and
persons unless specifically authorized
by the Captain of the Port New Orleans
or a designated representative. The
Coast Guard seeks comments on this
interim rule before establishing a
permanent final rule.
DATES: This rule is effective in the CFR
on February 5, 2015 through July 1,
2015. This rule is effective with actual
notice for purposes of enforcement on
January 31, 2015. This rule will remain
in effective through July 1, 2015.
Comments and related material must be
received by the Coast Guard on or before
March 9, 2015.
ADDRESSES: Documents mentioned in
this preamble are part of docket [USCG–
2014–0995]. To view documents
mentioned in this preamble as being
available in the docket, go to https://
www.regulations.gov, type the docket
number in the ‘‘SEARCH’’ box and click
‘‘SEARCH.’’ Click on Open Docket
Folder on the line associated with this
rulemaking. You may also visit the
Docket Management Facility in Room
rljohnson on DSK3VPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
14:41 Feb 04, 2015
Jkt 235001
W12–140 on the ground floor of the
Department of Transportation West
Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this interim rule,
call or email Commander Kelly
Denning, Sector New Orleans, U.S.
Coast Guard; telephone (504) 365–2392,
email Kelly.K.Denning@uscg.mil. If you
have questions on viewing or submitting
material to the docket, call Cheryl F.
Collins, Program Manager, Docket
Operations, telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION:
AHP Above Head of Passes
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
MM Mile Marker
NPRM Notice of Proposed Rulemaking
CFR Code of Federal Regulation
A. Public Participation and Request for
Comments
We encourage you to participate in
this rulemaking by submitting
comments and related materials. All
comments received will be posted
without change to https://
www.regulations.gov and will include
any personal information you have
provided.
1. Submitting Comments
If you submit a comment, please
include the docket number for this
rulemaking, indicate the specific section
of this document to which each
comment applies, and provide a reason
for each suggestion or recommendation.
You may submit your comments and
material online at https://
www.regulations.gov, or by fax, mail, or
hand delivery, but please use only one
of these means. If you submit a
comment online, it will be considered
received by the Coast Guard when you
successfully transmit the comment. If
you fax, hand deliver, or mail your
comment, it will be considered as
having been received by the Coast
Guard when it is received at the Docket
Management Facility. We recommend
that you include your name and a
mailing address, an email address, or a
telephone number in the body of your
document so that we can contact you if
we have questions regarding your
submission.
To submit your comment online, go to
https://www.regulations.gov, type the
docket number in the ‘‘SEARCH’’ box
and click ‘‘SEARCH.’’ Click on ‘‘Submit
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
a Comment’’ on the line associated with
this rulemaking.
If you submit your comments by mail
or hand delivery, submit them in an
unbound format, no larger than 81⁄2 by
11 inches, suitable for copying and
electronic filing. If you submit
comments by mail and would like to
know that they reached the facility,
please enclose a stamped, self-addressed
postcard or envelope. We will consider
all comments and material received
during the comment period and may
change the rule based on your
comments.
2. Viewing Comments and Documents
To view comments, as well as
documents mentioned in this preamble
as being available in the docket, go to
https://www.regulations.gov, type the
docket number in the ‘‘SEARCH’’ box
and click ‘‘SEARCH.’’ Click on Open
Docket Folder on the line associated
with this rulemaking. You may also visit
the Docket Management Facility in
Room W12–140 on the ground floor of
the Department of Transportation West
Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
3. Privacy Act
Anyone can search the electronic
form of comments received into any of
our dockets by the name of the
individual submitting the comment (or
signing the comment, if submitted on
behalf of an association, business, labor
union, etc.). You may review a Privacy
Act notice regarding our public dockets
in the January 17, 2008, issue of the
Federal Register (73 FR 3316).
4. Public Meeting
We do not now plan to hold a public
meeting. But you may submit a request
for one, using one of the methods
specified under ADDRESSES. Requests for
a public meeting must be received on or
before March 9, 2015. Please explain
why you believe a public meeting
would be beneficial. If we determine
that one would aid this rulemaking, we
will hold one at a time and place
announced by a later notice in the
Federal Register.
B. Regulatory History and Information
On a routine basis, the Coast Guard
previously established similar
temporary moving security zones
around escorted vessels as temporary
final rules for the Lower Mississippi
River. Those temporary final rules are
accessible as explained above under
ADDRESSES, [Docket Number USCG–
2013–0994, 79 FR 7587, Feb. 10, 2014
E:\FR\FM\05FER1.SGM
05FER1
]]>Agencies
[Federal Register Volume 80, Number 24 (Thursday, February 5, 2015)]
[Rules and Regulations]
[Pages 6435-6448]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-02278]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 700, 875, 877, 879, 884, and 885
RIN 1029-AC66
[Docket ID: OSM-2012-0010; S1D1S SS08011000 SX066A00067F 134S180110;
S2D2S SS08011000 SX066A00 33F 13XS501520]
Abandoned Mine Land Reclamation Program; Limited Liability for
Noncoal Reclamation by Certified States and Indian Tribes
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE or OSM), are revising our abandoned mine land (AML) reclamation
program regulations under Title IV of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). This rule allows states and
Indian tribes that have certified completion of all known coal AML
reclamation needs within their jurisdiction to receive limited
liability protection for certain noncoal reclamation projects.
DATES: Effective March 9, 2015.
FOR FURTHER INFORMATION CONTACT: Michael F. Kuhns, Division of
Regulatory Support, 1951 Constitution Ave. NW., Washington, DC 20240;
Telephone: 202-208-2860.
SUPPLEMENTARY INFORMATION:
I. Background on the AML Reclamation Program and Limited Liability
Provision
A. How does the AML reclamation program operate?
B. What is the limited liability provision of SMCRA?
C. Why are we making rule changes related to the limited
liability provision?
II. Description of the Final Rule and Discussion of the Comments
Received
A. Summary of the Final Rule
B. General Discussion of Comments
C. Section-by-Section Analysis
1. How are we revising part 700--General?
2. How are we revising part 875--Certification and Noncoal
Reclamation?
3. How are we revising part 877--Rights of Entry?
4. How are we revising part 879--Acquisition, Management, and
Disposition of Lands and Water?
5. How are we revising part 884--State Reclamation Plans?
6. How are we revising part 885--Grants to Certified States and
Indian Tribes?
III. Procedural Matters and Required Determinations
[[Page 6436]]
I. Background on the AML Reclamation Program and Limited Liability
Provision
A. How does the AML reclamation program operate?
Congress established the AML reclamation program in Title IV of
SMCRA to remedy the extensive environmental damage caused by past coal
mining activities. In general, the program is targeted toward
reclaiming abandoned and inadequately reclaimed mine lands and waters
adversely impacted by surface coal mining operations that were not
subject to the reclamation requirements of SMCRA. Health, safety, and
environmental problems associated with abandoned mine lands include
polluted surface water and groundwater, dangerous entrances to
underground mines, water-filled pits, unreclaimed or inadequately
reclaimed mine sites (including some with dangerous highwalls) and
refuse piles, sediment-clogged streams, damage from landslides, and
fumes and surface instability resulting from coal seam fires and
burning coal refuse. Restoration activities under the AML reclamation
program correct or mitigate these problems. While the central focus of
our AML program has been to address coal-related health, safety, and
environmental problems, noncoal mining-related projects also are
eligible to receive funding under certain conditions.
A core element of the national AML program is the reclamation plan
developed by each qualifying state and tribe. Under section 405(b) of
SMCRA, states that have coal lands and waters eligible for reclamation
under Title IV of SMCRA may submit a proposed plan to OSMRE for review.
Section 405(k) of SMCRA extends the same opportunity to Indian tribes
with eligible lands and waters. If the proposed plan demonstrates that
the state or tribe has eligible lands and waters and the legal
authority, policies, and administrative structure necessary to
adequately administer the program, we will approve the plan under
section 405(d) of SMCRA and 30 CFR 884.14, provided the proposed plan
and the state or tribe meet all other requirements of 30 CFR 884.11
through 884.14. Currently, 25 states, the Navajo Nation, the Hopi
Tribe, and the Crow Tribe of Indians have approved AML reclamation
plans.
These states and tribes receive grant funding for their AML
reclamation programs under section 405(f) of SMCRA. These grants are,
in part, financed through a reclamation fee assessed on current coal
production.\1\ The revenues generated by this reclamation fee, and from
certain other sources, are transferred into the Abandoned Mine
Reclamation Fund (the ``AML Fund''), which is a trust fund ``created on
the books of Treasury,'' but administered by the Secretary of the
Interior.\2\
---------------------------------------------------------------------------
\1\ 30 U.S.C. 1232(a).
\2\ 30 U.S.C. 1231(a).
---------------------------------------------------------------------------
During the first 30 years of the program, the states of Louisiana,
Montana, Texas, and Wyoming and the Crow Tribe, the Hopi Tribe, and the
Navajo Nation completed reclamation of all known coal-related AML
problems within their jurisdiction and certified to that fact in
accordance with section 411(a) of SMCRA. Because of this certification,
these states and tribes are known as ``certified'' states and tribes.
Beginning on November 5, 1990, when the Abandoned Mine Reclamation
Act of 1990 (AMRA) was enacted as part of the Omnibus Budget
Reconciliation Act of 1990, Public Law 101-508, certified states and
tribes were authorized to expend Title IV grant funding on the
reclamation of eligible noncoal AML problems and on the construction of
utilities and public facility projects (collectively ``noncoal
reclamation projects'') under the provisions of subsections (b) through
(g) of section 411 of SMCRA.\3\
---------------------------------------------------------------------------
\3\ 30 U.S.C. 1240a(b)-(g).
---------------------------------------------------------------------------
In sum, subsection (b) of section 411 allows certified states and
tribes to expend AML Fund moneys on eligible noncoal lands, waters, and
facilities without having to submit a request from the governor or
tribal chairman. Eligible lands, waters, and facilities are defined
under this subsection as those 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 prior to August
3, 1977, and for which there is no continuing reclamation
responsibility under state or other Federal laws.
Subsection (c) \4\ of section 411 requires that expenditures for
eligible noncoal projects must reflect certain listed priorities.
---------------------------------------------------------------------------
\4\ 30 U.S.C. 1240a(c).
---------------------------------------------------------------------------
Subsection (d) \5\ specifies that sites listed for remedial action
under the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA)
\6\ or the Comprehensive Environmental Response Compensation and
Liability Act of 1980 (CERCLA) \7\ are not eligible noncoal projects.
---------------------------------------------------------------------------
\5\ 30 U.S.C. 1240a(d).
\6\ 42 U.S.C. 7901 et seq.
\7\ 42 U.S.C. 9601 et seq.
---------------------------------------------------------------------------
Subsection (e) \8\ clarifies that eligible noncoal projects can
include projects relating to the protection, repair, replacement,
construction, or enhancement of public facilities damaged by past
mining practices so long as they relate to the priorities listed in
subsection (c).
---------------------------------------------------------------------------
\8\ 30 U.S.C. 1240a(e).
---------------------------------------------------------------------------
Subsection (f) \9\ allows the governor of a state or the head of
the governing body of an Indian tribe to request funding for ``specific
public facilities related to the coal or minerals industry'' even if
the site itself was not impacted by past mining practices.
---------------------------------------------------------------------------
\9\ 30 U.S.C. 1240a(f).
---------------------------------------------------------------------------
Finally, subsection (g) \10\ requires that noncoal programs conform
to the acquisition and lien provisions of SMCRA--sections 407 and
408.\11\
---------------------------------------------------------------------------
\10\ 30 U.S.C. 1240a(g).
\11\ 30 U.S.C. 1237-1238.
---------------------------------------------------------------------------
Although these 1990 provisions allowed certified states to develop
noncoal reclamation programs under a SMCRA reclamation plan,
uncertified states were still limited in the types of noncoal
reclamation projects they could perform under SMCRA. Specifically,
uncertified states could use AML grant funds on the reclamation of
noncoal AML sites 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, as provided under section 409 of SMCRA.
Subsections (b) through (g) of section 411 of SMCRA remained the
governing authority for certified states performing noncoal reclamation
projects under SMCRA until the passage of the Tax Relief and Health
Care Act of 2006, Public Law 109-432, 120 Stat. 292 (the ``2006
amendments''). The 2006 amendments substantially modified the AML
reclamation program in Title IV of SMCRA.
On November 14, 2008, we promulgated a final rule, which revised
the OSMRE regulations for the Abandoned Mine Reclamation Fund and the
Abandoned Mine Land program to implement the 2006 amendments. Abandoned
Mine Land Program, 73 FR 67576-67647 (Nov. 14, 2008) (``2008 Rule'').
(Please refer to the preamble of the 2008 Rule for a more complete
description of the program changes resulting from the 2006 amendments.
73 FR at 67577-67578.)
Of importance to this rulemaking, the 2008 Rule incorporated
changes made by the 2006 amendments relating to the amount and use of
funds distributed to certified states and tribes. Prior to the
[[Page 6437]]
2006 amendments, section 402(g)(1) of SMCRA allocated 50 percent of the
total reclamation fees paid by coal mine operators for coal produced
from operations located within each state or tribe to that state or
tribe. These allocations within the AML Fund are referred to as ``State
share'' or ``Tribal share'' funds. However, distribution of the State
share and Tribal share funds was subject to annual appropriation, and
Congress did not always appropriate the full amount allocated each
year. This left an increasing unappropriated balance of State share and
Tribal share allocations in the AML Fund.
The 2006 amendments addressed this increasing unappropriated
balance of State share and Tribal share funds, in part, by making the
distribution of these funds to uncertified states mandatory.\12\
Certified states and tribes, in contrast, were barred from receiving
what would have been their annual State share and Tribal share
allocations from the AML Fund, beginning October 1, 2007.\13\ These
State share and Tribal share funds were replaced with equivalent
payments from otherwise unappropriated general funds in the U.S.
Treasury.\14\ We refer to these payments as ``certified in lieu''
funds; they are scheduled by statute to continue through fiscal year
2022. 30 U.S.C. 1240a(h)(2); see also 30 U.S.C. 1202(a) and (g)(1).
---------------------------------------------------------------------------
\12\ 30 U.S.C. 1231(d)(3).
\13\ 30 U.S.C. 1231(f)(3)(B).
\14\ 30 U.S.C. 1240a(h)(2).
---------------------------------------------------------------------------
In addition, the 2006 amendments provided for payments to all
states and tribes from otherwise unappropriated general funds in the
U.S. Treasury in an amount equal to the unappropriated balance of their
State share or Tribal share allocation in the AML Fund as of September
30, 2007. See section 411(h)(1) of SMCRA.\15\ As required by the 2006
amendments, distribution of these ``prior balance replacement funds''
occurred in seven equal annual installments, beginning with fiscal year
2008 and ending in fiscal year 2014.
---------------------------------------------------------------------------
\15\ 30 U.S.C. 1240a(h)(1).
---------------------------------------------------------------------------
In 2012, however, a new law (Pub. L. 112-141) amended section
411(h) of SMCRA by capping the total annual payment to a certified
state or tribe under that section at $15 million. In other words, the
combined certified in lieu and prior balance replacement funds
distributed annually to a certified state or tribe cannot exceed $15
million annually. On October 2, 2013, Congress increased this cap to
$28 million in fiscal year 2014 and $75 million in fiscal year 2015.
See section 10 of the Helium Stewardship Act of 2013 (Pub. L. 113-40).
As mentioned earlier, the 2008 Rule revised the regulations to
conform to the 2006 amendments. The 2008 Rule recognized the greater
latitude that the 2006 amendments gave to certified states and tribes
in how they could spend the certified in lieu funds or prior balance
replacement funds. In particular, under the 2008 Rule, while certified
programs are still required to address known and newly discovered coal
problems in a timely manner, funding not needed to address coal
problems may be used for a wider range of purposes than previously
allowed, including, but not limited to, purposes related to noncoal
reclamation projects. See 30 CFR parts 872 and 875 (2009).
B. What is the limited liability provision of SMCRA?
Work done as part of an approved state or tribal AML reclamation
plan receives limited liability protection. Among the many changes made
to Title IV in 1990, AMRA added a new section--section 405(l) \16\ (the
limited liability provision)--which specifies that ``[n]o State shall
be liable under any provision of Federal law for any costs or damages
as a result of action taken or omitted in the course of carrying out a
State abandoned mine reclamation plan approved under this section.''
Indian tribes are also covered under this provision because section
405(k) \17\ provides that an Indian tribe is considered a state for
purposes of Title IV of SMCRA. Section 405(l) waives monetary liability
for states and tribes under all Federal laws when the states and tribes
are acting to carry out their approved abandoned mine reclamation plan,
but it does not preclude liability for a state's or tribe's gross
negligence or intentional misconduct. State and tribal program
officials routinely make a broad range of decisions concerning site
selection and abatement of serious health, safety, and environmental
problems. Although the limited liability provision does not waive the
applicability of Federal laws to the states and tribes, it does waive
monetary liability for actions they take in carrying out or complying
with those laws in furtherance of an AML reclamation plan. In so doing,
the limited liability provision provides states and tribes with a
degree of protection as they make difficult choices with limited
program funding.
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\16\ 30 U.S.C. 1235(l).
\17\ 30 U.S.C. 1235(k).
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On May 31, 1994, we promulgated 30 CFR 874.15 and 875.19 to
implement the limited liability provision in section 405(l) of SMCRA.
See 59 FR 28172-28173. The language in those two regulatory sections is
identical--30 CFR 874.15 applies to uncertified programs, while 30 CFR
875.19 applies to certified programs.
C. Why are we making rule changes related to the limited liability
provision?
We are revising our rules in response to concerns that the 2008
Rule may have created a disincentive for certified states and tribes to
conduct noncoal reclamation projects with the moneys that they receive
under SMCRA. In the 2008 Rule, we did not change the language of either
30 CFR 874.15 or 875.19, which are the regulatory provisions that
mirror SMCRA's limited liability provision. However, we concluded in
the preamble to the 2008 Rule that, although certified programs could
engage in noncoal reclamation projects, programs that use the two new
sources of funding under sections 411(h)(1) and (h)(2) of SMCRA (prior
balance replacement funds and certified in lieu funds, respectively,
instead of AML Fund moneys) would not be operating as SMCRA noncoal AML
reclamation programs and would not benefit from the limited liability
protections when they conduct noncoal reclamation projects. See 73 FR
at 67609-67611. This is because the noncoal reclamation projects for
certified states are authorized by subsections (b) through (g) of
section 411 of SMCRA, and those statutory provisions only refer to the
use of State share and Tribal share funds for SMCRA noncoal AML
reclamation programs from the AML Fund. As stated above, as a result of
the 2006 amendments, certified states and tribes no longer receive
State share and Tribal share funds. Since 2008, certified states and
tribes that have chosen to expend the certified in lieu funds or prior
balance replacement funds to work on noncoal reclamation projects could
not comply with the regulations in 30 CFR part 875 that had implemented
subsections (b) through (g) of Section 411 of SMCRA \18\ and,
therefore, could not benefit from the limited liability protection
afforded by 30 CFR 875.19 for their noncoal reclamation projects. 73 FR
at 67613-67614.
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\18\ 30 CFR 875.11(b)(2).
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Although we ultimately adopted this more restrictive approach in
the 2008 Rule, we considered other alternatives in the proposed rule
that preceded the 2008 Rule. First, we proposed to allow certified
states and tribes to choose to use their Title IV moneys for noncoal
[[Page 6438]]
reclamation projects under 30 CFR part 875. See Abandoned Mine Land
Program, 73 FR 35214, 35233 (June 20, 2008). Second, we presented an
alternative that would have required certified states and tribes to
spend their certified in lieu funds for noncoal reclamation projects
under 30 CFR part 875. Id.
As part of the 2008 rulemaking, we received a number of comments
regarding the application of the limited liability provision to
certified states and tribes. At that time, the Interstate Mining
Compact Commission (IMCC), the National Association of Abandoned Mine
Land Programs (NAAMLP), and one state commented that ``certified AML
programs should not be required to follow all of part 875 to enjoy the
protection of the limited liability provisions of Sec. 875.19.'' \19\
Since we adopted the 2008 Rule, program officials in certified states
and tribes have continued to express concern that the loss of limited
liability protection for noncoal reclamation projects creates a
disincentive to conduct at least some types of noncoal reclamation
activities.\20\
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\19\ 73 FR at 67613.
\20\ See, e.g., Statement of Madeline Roanhorse, Manager, AML
Reclamation/Uranium Mill Tailings Radiation Control Act Department,
Navajo Nation on Behalf of the National Association of Abandoned
Mine Land Programs re Oversight Hearing on The Effect of the
President's FY 2013 Budget and Legislative Proposals for the Office
of Surface Mining on Private Sector Job Creation, Domestic Energy
Production, State Programs and Deficit Reduction before the House
Energy and Mineral Resources Subcommittee, March 6, 2012, p. 7
(``Without this limited liability protection, these states and
tribes potentially subject themselves to liability under the Clean
Water Act and CERCLA for their AML reclamation work. Nothing in the
2006 Amendments suggested that there was a desire or intent to
remove these liability protections, and without them in place,
certified states and tribes will need to potentially reconsider at
least some of their more critical AML projects.'').
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Based on our reconsideration of these past public comments on the
2008 Rule and our own concerns about the potential disincentive that
the 2008 may have created, we reconsidered the position that we took in
the 2008 Rule and concluded that a more flexible approach could
increase reclamation of noncoal AML sites. In February 2013, we
published a proposed rule to revise the 2008 Rule to allow certified
states and tribes to choose to use their prior balance replacement
funds and certified in lieu funds for noncoal reclamation projects
under 30 CFR part 875 in accordance with an approved AML reclamation
plan. Abandoned Mine Land Reclamation Program; Limited Liability for
Noncoal Reclamation by Certified States and Indian Tribes, 78 FR 8822
(Feb. 6, 2013). Under the proposed rule, any noncoal reclamation
projects conducted under 30 CFR part 875 in accordance with an approved
AML reclamation plan would receive limited liability protection as
authorized by section 405(l) of SMCRA and 30 CFR 875.19.
The rule that we are promulgating today is designed to restore
limited liability protections for certain noncoal reclamation projects,
as described below.
II. Description of the Final Rule and Discussion of the Comments
Received
A. Summary of the Final Rule
The final rule that we are adopting today gives certified states
and tribes two options for conducting noncoal reclamation projects.
First, the final rule retains the ability of certified states and
tribes to expend their prior balance replacement funds and certified in
lieu funds on projects outside the scope of a SMCRA noncoal AML
reclamation program but without limited liability protection. Second,
the final rule allows certified states and tribes the ability to
voluntarily use prior balance replacement funds and certified in lieu
funds to conduct noncoal reclamation projects pursuant to a SMCRA
noncoal AML reclamation program under the provisions of subsections (b)
through (g) of section 411 of SMCRA and 30 CFR part 875 and other
applicable regulations. The limited liability protection provided by
section 405(l) and 30 CFR 875.19 would apply to noncoal reclamation
projects completed pursuant to a SMCRA noncoal AML reclamation program.
These two options are discussed in more detail below.
Under the first option, if a certified state or tribe chooses to
use some or all of its certified in lieu funds, prior balance
replacement funds, or both, on noncoal reclamation projects outside of
a SMCRA noncoal AML reclamation program, it will not be required to
comply with subsections (b) through (g) of section 411 and the
requirements of 30 CFR and other regulations related to SMCRA noncoal
AML reclamation programs. Thus, for example, a state could expend
certified in lieu funds on UMTRCA or CERCLA sites, but if it did so it
would not receive the limited liability protections afforded by SMCRA
because section 411(d) and 30 CFR 875.16 prohibit SMCRA noncoal AML
reclamation programs from expending moneys on those types of sites.
Certified states and tribes that choose this option will have the same
administrative responsibilities that they have been subject to under
the 2008 Rule.
Certified states and tribes, however, can receive limited liability
protections for noncoal reclamation projects taken under the aegis of
the second option--a SMCRA noncoal AML reclamation program that is part
of an approved AML reclamation plan in accordance with 30 CFR part 875
and other applicable regulations. In other words, under this rule, the
limited liability provision will apply to noncoal reclamation projects
conducted under an approved state or tribal SMCRA noncoal AML
reclamation program consistent with subsections (b) through (g) of
section 411 of SMCRA and the requirements of 30 CFR part 875 and other
applicable regulations.
Under such a SMCRA noncoal AML reclamation program, limited
liability protections will extend to onsite reclamation activities and
to program administration, site development, environmental management,
and other actions taken or not taken in support of noncoal reclamation
projects. Because the protections only extend to ``action taken or
omitted in the course of carrying out'' an approved abandoned mine
reclamation plan for a state or Indian tribe, there must be a clear
nexus between the action or inaction and a noncoal reclamation project
conducted pursuant to 30 CFR part 875 that is part of an approved AML
reclamation plan for the protections to apply. Because OSMRE must
verify that the projects conducted under the second option meet the
applicable statutory and regulatory criteria, certified states and
tribes choosing this option will be subject to more administrative
responsibilities, such as the requirement for the submittal and
approval of a written authorization to proceed. These individual
administrative requirements are described in the next section-by-
section analysis below.
As we explained in our proposed rule, the approach contained in
this final rule is consistent with section 411(h)(1) of SMCRA, which
grants the state legislatures and tribal councils almost complete
discretion as to how to spend prior balance replacement funds, and it
is consistent with section 411(h)(2) of SMCRA, which contains no
specific instruction on the use of certified in lieu funds and does not
place any restrictions upon them. 78 FR 8825. This broad congressional
grant of authority gives certified states and tribes discretion to
operate an approved noncoal AML reclamation program under subsections
(b) through (g) of section 411 of SMCRA and the implementing
regulations with these funds, should they chose to do so. This approach
would also be consistent with
[[Page 6439]]
our view that states and tribes may use these funds for coal
reclamation to maintain certification, a use also not explicitly
contained in either paragraph (h)(1) or paragraph (h)(2) of section 411
of SMCRA.
B. General Discussion of Comments
In response to the proposed rule, we received comments from seven
states and one Indian tribe, each with an approved AML reclamation plan
under Title IV of SMCRA. In addition, we also received joint comments
from the IMCC and the NAAMLP. We did not receive any comments from
environmental groups, the coal industry, or citizens. All comments
timely submitted are available for public review in the docket for this
rulemaking.
The comments that we received ranged from very specific to very
general. All comments either supported the rule or were neutral. We
received no comments opposing the rule. Seven states and one tribe
urged OSMRE to enact a final rule as soon as practicable. They also
endorsed the IMCC/NAAMLP comments, which can be summarized in the
following excerpt: ``While we anticipated fewer changes required to
effect the reinstatement [of limited liability coverage], our review
indicates OSMRE has done a thorough job in correcting all areas of the
rules necessary to support the reinstatement. OSMRE is to be commended
for their effort.''
Comments specific to a particular provision of the proposed rule
are discussed below in the section-by-section analysis.
C. Section by Section Analysis
1. How are we revising part 700--General?
To improve the clarity of the regulations, we are revising Sec.
700.5 to add a definition of the term ``SMCRA.'' We proposed to define
the term ``SMCRA'' as meaning the Surface Mining Control and
Reclamation Act of 1977 (Pub. L. 95-87), as amended. We received no
comments about the proposed definition and are adopting it as proposed,
with the exception that we are replacing the reference to Public Law
95-87 in the proposed rule with the appropriate United States Code
citation (30 U.S.C. 1201 et seq.) because that is the more commonly
used citation for the statute.
2. How are we revising part 875--Certification and Noncoal Reclamation?
We are revising this part to clarify that certified states and
tribes may voluntarily conduct noncoal reclamation activities under a
noncoal AML reclamation program in accordance with the provisions of 30
CFR part 875 and other applicable regulations and thus receive limited
liability protection for noncoal reclamation projects completed under
those provisions. In general, our revisions set forth the procedures
that certified states and tribes must follow if they voluntarily choose
to use their Title IV funding for noncoal reclamation projects under
part 875, which includes reclamation of noncoal AML sites as well as
the construction of certain utilities and public facilities as provided
under Sec. 875.15, pursuant to an approved SMCRA noncoal AML
reclamation plan. These procedures relate to the eligibility of sites
and restrictions for land acquisition and management, lien
determinations, and contractor eligibility. In addition, this part
makes clear that certified states and Indian tribes will receive
limited liability protection under 30 CFR 875.19 for authorized noncoal
reclamation projects and supporting administrative and programmatic
activities. A discussion of our revisions to individual sections of the
rules and our response to the comments that we received specific to
those sections follows.
Applicability (Sec. 875.11)
We are revising Sec. 875.11(b)(2) to allow certified programs to
use prior balance replacement funds and certified in lieu funds for
both coal reclamation projects that are necessary to maintain
certification and noncoal reclamation projects approved under SMCRA.
The final rule is consistent with section 411(h)(1) of SMCRA, which
grants the state legislatures and tribal councils discretion as to how
prior balance replacement funds may be spent, because the state
legislature or tribal council could direct these funds to be expended
on noncoal reclamation projects pursuant to 30 CFR part 875. In
addition, optional coverage is consistent with section 411(h)(2) of
SMCRA, which contains no specific instruction on the use of certified
in lieu funds and does not place any restrictions upon them. Therefore,
certified states and tribes now will have the discretionary authority
to direct some or all of these funds to SMCRA noncoal reclamation
projects consistent with section 411 of SMCRA and 30 CFR part 875. This
approach is also consistent with 30 CFR 875.14(b), which expressly
allows states and tribes to use certified in lieu funds and prior
balance replacement funds to address coal problems discovered
subsequent to certification, a use that also is not explicitly
contained in either subsection (h)(1) or subsection (h)(2) of section
411 of SMCRA, which authorize the payment of prior balance replacement
and certified in lieu funds.
By allowing certified states and tribes the latitude to conduct
noncoal reclamation projects under 30 CFR part 875 and an approved
SMCRA noncoal AML reclamation plan, we will continue to promote the AML
reclamation plan as a central component of SMCRA noncoal reclamation
projects. Activities carried out under a SMCRA noncoal AML reclamation
program under 30 CFR part 875 will enjoy the limited liability
protections of section 405(l) of SMCRA because the work will be
conducted pursuant to an approved AML reclamation plan that conforms to
subsections (e) and (f) of section 405 of SMCRA and the applicable
regulations.
We received no comments opposing the proposed revisions to this
section and we are adopting the revisions to this section as proposed.
Reclamation Priorities for Noncoal Program (Sec. 875.15)
In our proposed rule, we did not include any revisions to the
language in Sec. 875.15, which establishes priorities for SMCRA
noncoal AML reclamation programs. However, the IMCC/NAAMLP asked for
clarification regarding the priorities listed in that section. In
particular, they wanted to know whether we would require certified
states and tribes to strictly adhere to those priorities if the
certified state or tribe chooses to expend its AML moneys pursuant to
new Sec. 875.11(b)(2)(ii), which authorizes those states and tribes to
``conduct a noncoal reclamation program in accordance with the
requirements of this part.'' The commenters then opined that, because
the expenditure of funds on a SMCRA noncoal AML reclamation program
under 30 U.S.C. part 875 is voluntary, it would be inappropriate to
require a certified state or Indian tribe to strictly follow the
hierarchy of priorities in this section. They suggested that certified
states and Indian tribes should be able to choose which project or
projects to address, and in which order. For example, they would like
the flexibility to address a priority 3 site before all priority 1 and
2 sites are corrected.
We did not make any changes to Sec. 875.15 in response to this
comment because this section is derived from subsections (c), (e), and
(f) of section 411 of SMCRA, which are described above in section I.A
of this preamble.\21\
[[Page 6440]]
The priorities and restrictions contained in Sec. 875.15 are part of
the statutory requirements for a SMCRA noncoal AML reclamation program,
and we must give them effect. However, we have not historically
interpreted this language in an inflexible manner. Section 411(c) of
SMCRA and Sec. 875.15(b) state that the expenditure of moneys ``shall
reflect'' the priorities listed. This language is similar to the
language used to describe the priorities for coal reclamation under
section 403(a) of SMCRA. See 30 U.S.C. 1233(a) (``Expenditure of moneys
. . . shall reflect the following priorities in the order stated. . .
.''). Our longstanding approach for interpreting 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.''
\22\ Because section 411(c) and Sec. 875.15(b) are so similar to
section 403(a), the same approach would apply to noncoal reclamation
projects: i.e., Priority 3 noncoal reclamation projects may be
conducted before completion of all Priority 1 and 2 noncoal reclamation
projects so long as the overall SMCRA noncoal AML reclamation program
generally reflects the priorities listed in section 411(c) and 30 CFR
875.15.
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\21\ 30 U.S.C. 1240a(c), (e) and (f).
\22\ 73 FR at 67603 (summarizing OSM's history of this
approach).
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Exclusion of Certain Noncoal Reclamation Sites (Sec. 875.16)
Consistent with the proposed rule, we are revising this section to
prohibit the reclamation of sites designated for remedial action under
UMTRCA \23\ or listed for remedial action under CERCLA \24\ by
certified states or tribes using prior balance replacement funds or
certified in lieu funds if they conduct the reclamation as a component
of a voluntary SMCRA noncoal AML reclamation program under part 875.
SMCRA clearly prohibits ``[s]ites and areas designated for remedial
action pursuant to [UMTRCA] or which have been listed for remedial
action pursuant to [CERCLA]'' from being ``eligible for expenditures
from the Fund under'' section 411 of SMCRA.\25\
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\23\ 42 U.S.C. 7901 et seq.
\24\ 42 U.S.C. 9601 et seq.
\25\ 30 U.S.C. 1240a(d).
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The revision to Sec. 875.16(b) will continue to prohibit a
certified state or Indian tribe from expending money left over from the
pre-2008 distributions of funds from section 402(g)(1) on UMTRCA and
CERCLA sites. In addition, as described in the proposed rule, this
section is being revised to prohibit the expenditure of prior balance
replacement funds and certified in lieu funds for UMTRCA and CERCLA
sites if the state or tribe chooses to conduct a SMCRA noncoal AML
reclamation program under part 875. The revised rule does not prohibit
a certified state or tribe from expending Title IV moneys on UMTRCA and
CERCLA sites if those projects are completed outside the scope of a
SMCRA noncoal AML reclamation program operating under part 875.
However, the certified state or tribe will not receive limited
liability coverage under SMCRA for those projects.
We received no comments opposing this proposed provision. We did,
however, receive a suggestion to capitalize ``State'' in the regulatory
text to be consistent with capitalization of this word elsewhere in our
regulations. We are adopting the proposed rule with this editorial
change.
Land Acquisition Authority--Noncoal (Sec. 875.17)
As stated in the proposed rule, we are revising this section to
confirm that the requirements specified in parts 877 (Rights of Entry)
and 879 (Acquisition, Management and Disposition of Lands and Water)
also apply to a state's or tribe's SMCRA noncoal AML reclamation
projects conducted voluntarily under part 875. We received no comments
opposing the proposed changes to this section and we are adopting the
changes with a minor revision for clarity.
Limited Liability (Sec. 875.19)
Consistent with the proposed rule, we are revising this section to
clarify that no state or Indian tribe conducting noncoal reclamation
projects, including the reclamation of noncoal AML sites and the
construction of certain utilities and public facilities, under the
provisions of part 875 is liable under any provision of Federal law for
any costs or damages as a result of action taken or omitted in the
course of carrying out an approved state or Indian tribe AML
reclamation plan. The revision is also consistent with section 405(l)
of SMCRA, as this section preserves state and tribal liability for
costs or damages caused by a state's or tribe's gross negligence or
intentional misconduct when carrying out a SMCRA noncoal program under
an approved reclamation plan.
Although not specifically referring to this provision, one
commenter requested that we clarify whether the limited liability
provisions of section 405(l) of SMCRA and the Federal regulations would
``provide a certified state or tribal program operating under a
federally approved state abandoned mine program with exemption from
liability under the third-party lawsuit provision of the Clean Water
Act[.]'' This commenter noted that the legislative history surrounding
section 405(l) specifically refers to section 405(l) as limiting the
liability of CERCLA for reclamation projects associated with eligible
noncoal abandoned mine sites ``so long as the project is undertaken
pursuant to a federally approved reclamation plan.'' See H.R. Rep. 101-
294, at 30, 37 (1989).
We have opted not to make any changes to the regulatory text based
on this comment. We note that the language of section 405(l) of SMCRA
and Sec. 875.19 limits liability ``under any provision of Federal law
for any costs or damages as a result of action taken or omitted in the
course of carrying out an approved State or Indian tribe abandoned mine
reclamation plan.'' 30 U.S.C. 1235(l) (emphasis added). This limited
liability protection does not exempt states or tribes from complying
with applicable Federal laws, including the Clean Water Act.\26\
Rather, it protects a state or tribe from paying for costs or damages
that may arise as a result of the state's or tribe's actions or
inactions while carrying out its approved abandoned mine reclamation
plan. All grant recipients must provide assurances to OSMRE that
activities funded by the AML Fund, certified in lieu funds, or prior
balance replacement funds will comply with Federal laws, as well as
state, tribal, and local laws. We are unaware of any instances where
states or tribes have attempted to rely on this provision to avoid
complying with the Clean Water Act or any other Federal law.
Nevertheless, until such time as the courts define the scope of
coverage under section 405(l), we cannot definitively state the
parameters of the limited liability protection provision nor foresee
all future possible factual scenarios in which a state or tribe may
raise section 405(l) of SMCRA as a defense against a claim for costs or
damages arising from the state's or tribe's actions or inactions while
carrying out an approved abandoned mine reclamation plan.
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\26\ 33 U.S.C. 1251 et seq.
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We are making one minor revision to this section from the language
as proposed. We removed the word ``certified'' from the first sentence
of this rulemaking because, according to Sec. 875.11, this part
applies to both noncoal reclamation projects conducted by certified
states and tribes pursuant to SMCRA noncoal AML reclamation
[[Page 6441]]
programs under subsections (b) through (g) of section 411 of SMCRA and
part 875 as well as to noncoal reclamation activities conducted by
uncertified states consistent with section 409 of SMCRA and the
applicable regulations. We originally proposed to include the word
``certified'' to ensure that these states and tribes would be eligible
for limited liability coverage, and we did not intend to remove this
coverage from uncertified states. Thus, removing the word ``certified''
eliminates the possibility of any unintended loss of limited liability
coverage for uncertified states performing authorized noncoal
reclamation work.
Contractor Eligibility (Sec. 875.20)
As described in the proposed rule, we are revising this section to
clarify that certified states and tribes that voluntarily conduct
noncoal reclamation activities under part 875 must comply with the
contractor eligibility requirements. This section also applies to
certified states and tribes that conduct coal reclamation to maintain
certification. We received no comments opposing the proposed revisions
to this section and we are adopting the rule as proposed with a minor
revision for clarity.
3. How are we revising Part 877--Rights of Entry?
We did not propose any revisions to part 877 in the proposed rule,
but we are making minor, non-substantive revisions to Sec. 877.1
(Scope) for clarity in response to a comment suggesting that we add
introductory language to part 877 to clarify that ``noncoal'' replaces
all references to ``coal'' when certified states and tribes are
conducting noncoal reclamation projects under section 411 of SMCRA and
part 875 of the regulations. The commenter acknowledged that the
revisions to Sec. 875.17 would have the same effect, but the commenter
stated that repeating this language in part 877 would improve clarity
and avoid confusion. We agree with the commenter and are adding the
requested language to Sec. 877.1.
4. How are we revising Part 879--Acquisition, Management, and
Disposition of Lands and Water?
Because the final rule modifies part 875 to allow certified states
and tribes to voluntarily conduct noncoal reclamation projects under
SMCRA, we are revising, consistent with the proposed rule, part 879 so
that the procedures related to acquisition, management, and disposition
of land and water are consistent with this option. In general,
certified states and Indian tribes that voluntarily conduct noncoal
reclamation projects under part 875 will be required to follow the
provisions of part 879. Consistent with the proposed rule, we also are
revising Sec. 879.15 to specify that all moneys received by a
certified state or tribe in the context of their noncoal reclamation
projects conducted under part 875 must be handled in accordance with
Sec. 885.19 to ensure that any moneys received from the disposition of
lands and waters are returned to the AML reclamation program. Each
change, a summary of the comments we received, if any, and our
responses to these comments are described below in more detail.
Scope (Sec. 879.1)
Consistent with the proposed rule, we are revising this section to
clarify its applicability to certified states and tribes that choose to
conduct noncoal reclamation projects under part 875. We received no
comments opposing our proposed revisions to Sec. 879.1. However, one
commenter suggested that we add language to the introduction of part
879 to clarify that ``noncoal'' replaces all references to ``coal''
when certified states and tribes are conducting noncoal reclamation
projects under part 875. The commenter acknowledged that the revisions
to Sec. 875.17 would have the same effect, but the commenter stated
that repeating this language in part 879 would improve clarity and
avoid confusion.
We agree with the commenter. Accordingly, we are revising Sec.
879.1 to reflect the changes that we proposed, and we are adopting
additional language to clarify that ``noncoal'' replaces all references
to ``coal'' when certified states and tribes are conducting noncoal
reclamation projects under part 875.
Land Eligible for Acquisition (Sec. 879.11)
As described in the proposed rule, we are revising Sec. Sec.
879.11(a) and 879.11(b) to clarify that these sections apply to a
certified state or Indian tribe that chooses to conduct noncoal
reclamation activities under part 875. In addition, we determined that
previous Sec. 879.11 was not as clear as we intended, and we
restructured Sec. 879.11(a) to confirm that OSMRE must execute a
written approval and make the findings required by Sec. Sec.
879.11(a)(1) and 879.11(a)(2) when we acquire land. We received no
comments opposing the proposed changes and we are adopting the
revisions to this section as proposed with minor revisions to
Sec. Sec. 879.11(a)(2) and 879.11(b) for clarity.
Disposition of Reclaimed Land (Sec. 879.15)
As proposed, we are revising Sec. 879.15(h) to specify that moneys
received from disposal of land by certified states and tribes
conducting a SMCRA noncoal AML reclamation program under part 875 must
be handled as unused funds in accordance with Sec. 885.19. We received
no comments opposing the proposed changes to this section and we are
adopting the rule as proposed.
5. How are we revising Part 884--State Reclamation Plans?
As described in the proposed rule, we are revising part 884 to
specify the contents of an AML reclamation plan for certified states
and Indian tribes. In particular, we are revising two sections--
Sec. Sec. 884.13 and 884.17. Each change, a summary of the comments we
received, if any, and our responses to these comments are described
below in more detail.
Content of Proposed State Reclamation Plan (Sec. 884.13)
As proposed, we are revising this section to require that an AML
reclamation plan for a certified state or tribe contain all components
required for an AML reclamation plan for an uncertified state or tribe,
plus a commitment to address eligible coal problems found or occurring
after certification as required in Sec. Sec. 875.13(a)(3) and
875.14(b). This is a change from the 2008 Rule that specified that a
noncoal AML reclamation plan for a certified state or tribe need
include only two components: (1) a designation by the governor of the
state or the governing authority of the Indian tribe identifying the
agency authorized to administer the AML reclamation program and to
receive and administer grants, and (2) a commitment to address eligible
coal problems found or occurring after certification, as required in
Sec. Sec. 875.13(a)(3) and 875.14(b).
We are making this change so that certified states and tribes will
be able to avail themselves of the limited liability protections
afforded by section 405(l) of SMCRA. To receive the protection of
section 405(l), certified states and Indian tribes must conduct noncoal
reclamation projects under 30 CFR part 875 in accordance with an
approved AML reclamation plan that conforms to paragraphs (e) and (f)
of section 405 and the applicable regulations.
We received no comments opposing our proposed revisions to this
section. The final rule that we are adopting
[[Page 6442]]
today is substantively identical to proposed Sec. 884.13. However, we
are reorganizing this section for clarity and consistency with current
rule drafting principles. The final rule consolidates the requirements
that apply to all states and tribes (both certified and uncertified) in
paragraph (a). Paragraph (b) contains the additional requirement that
applies to certified states and tribes.
Other Uses by Certified States and Indian Tribes (Sec. 884.17)
In response to a comment received on the proposed rule, we are
revising section 884.17 in the final rule to alleviate confusion about
whether certain restrictions in that section apply to public facility
projects. Section 884.17 details the contents of a reclamation plan for
a certified state or tribe that chooses to use AML funds for a specific
type of noncoal reclamation project--a public facility project. In
particular, this section allows certified states and tribes to expend
money on public facility projects ``when the Governor of the State has
certified and the Director [of OSM] has concurred that'' (1) all
reclamation, both coal and noncoal reclamation, has been completed, (2)
the ``specific public facilities are required as a result of coal
development,'' and (3) other funds available under the Mineral Leasing
Act of 1920 (MLA),\27\ as amended, or the Payment in Lieu of Taxes Act
(PILTA),\28\ are inadequate.
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\27\ 30 U.S.C. 181 et seq.
\28\ Although existing 30 CFR 884.17(a)(3) refers to the
``Payment In Lieu of Taxes Act'' as the ``Act of October 20, 1978,
Public Law 94-565 (90 Stat. 2662)'' the correct reference to that
Act is the ``Act of October 20, 1976.''
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This provision was first proposed in 1978 as Sec. 850.12(d). See
Abandoned Mine Land Reclamation Program Provisions, 43 FR 17918, 17930
(Apr. 25, 1978). The preamble to the February 2013 proposed rule
explains that we proposed Sec. 850.12 to allow states and tribes to
include noncoal reclamation activities in their initial state or tribal
AML reclamation plan. See 43 FR at 17921. This 1978 provision, Sec.
850.12, helped to implement section 402(g)(2) of SMCRA, which
originally stated:
Fifty per centum of the funds collected annually in any State or
Indian reservation shall be allocated to that State or Indian
reservation by the Secretary pursuant to any approved abandoned mine
reclamation program to accomplish the purposes of this title. Where
the Governor of a State or the head of a governing body of a tribe
certifies that (i) objectives of the fund set forth in sections 403
and 409 have been achieved, (ii) there is a need for construction of
specific public facilities in communities impacted by coal
development, (iii) impact funds which may be available under
provisions of the Federal Mineral Leasing Act of 1920, as amended,
or the Act of October 20, 1976, Public Law 94-565 (90 Stat. 2662),
are inadequate for such construction, and (iv) the Secretary concurs
in such certification, then the Secretary may continue to allocate
all or part of the 50 per centum share to that State or tribe for
such construction: Provided, however, That if funds under this
subparagraph (2) have not been expended within three years after
their allocation, they shall be available for expenditure in any
eligible area as determined by the Secretary.
30 U.S.C. 1232(g)(2) (1978); see also 91 Stat. 458.
When OSMRE finalized the 1978 rule, it renumbered the provision as
Sec. 884.12(d). See Abandoned Mine Land Reclamation Program
Provisions, 43 FR 49932, 49948 (Oct. 25, 1978). In 1982, OSMRE revised
and recodified Sec. 884.12(d) as Sec. 884.17. See Revision of the
Abandoned Mine Land Reclamation Program Rules, 47 FR 28574, 28600 (June
30, 1982). As explained in the preamble to the corresponding proposed
rule, we proposed this change so as ``to avoid confusion as to when
impact assistance is available and how it can be obtained.'' Proposed
Revision of the Abandoned Mine Land Reclamation Program Regulations, 46
FR 60778, 60786 (Dec. 11, 1981).
Among the changes made by AMRA in 1990 was the removal of
restrictions on public facility projects contained in the second
sentence of section 402(g)(2), as originally enacted in 1977. AMRA also
added paragraphs (a) through (g) to section 411, which contain the
current restrictions on the types of noncoal reclamation projects,
including public facility projects, that can be financed with AML
moneys by certified states and tribes. Although we amended our
regulations in 1994 to incorporate the amendments to SMCRA contained in
AMRA and the Energy Policy Act of 1992, we did not make any changes to
Sec. 884.17. See Abandoned Mine Land Reclamation Fund Reauthorization
Implementation, 59 FR 28136 (May 31, 1994). At that time, however, we
did add Sec. 875.15 to incorporate the expanded authority of certified
states and tribes to use AML funds for projects related to the
protection, repair, replacement, or enhancement of facilities used by
the public, if these facilities are affected by coal or noncoal mining
activities. See 59 FR at 28161-28164.
Although we did not amend Sec. 884.17 in 1994, we recognized that
the restrictions contained in the second sentence of section 402(g)(2)
of SMCRA, as originally enacted in 1977, were inapplicable and that
certified States and Tribes would not have to meet the criteria in
Sec. 884.17 in order to expend AML funds on public facility projects
under SMCRA. In response to a comment that suggested that we require a
certified state or tribe to complete all known coal and noncoal
reclamation before allowing the construction of public facility
projects under section 411(f), we stated:
[A] State Governor or head of a governing body of an Indian
tribe may request funding for activities pursuant to Section 411(f)
at any time after certification. There is no requirement that a
State or Indian tribe complete all known noncoal reclamation before
utilizing this authority. The commenters' premise is based on the
original statutory language of Section 402(g)(2) as enacted in 1977.
This section provided that once a state had completed all of its
coal and noncoal reclamation, it could utilize AML funds for
community impact assistance. This old statutory scheme was deleted,
and OSM can find no references in the legislative history which
supports the commenter's position. . . . In the absence of
restricting language in Section 411(f) or qualifying language in
Section 411(c), OSM believes the proper interpretation is to permit
States and Indian tribes to utilize the authority in Section 411(f)
without regard to the completion of the priorities specified in
Section 411(c) [pertaining to noncoal reclamation].
59 FR at 28163. Thus, since the enactment of AMRA and the adoption of
Sec. 875.15, we have not required certified states and tribes to meet
the criteria in Sec. 884.17 in order to expend AML funds on public
facility projects under SMCRA.
In 2008, we revised our AML regulations to implement the 2006
amendments to SMCRA. At that time, we made editorial changes to Sec.
884.17, such as updating a cross-reference and updating the title. We
made no substantive changes to this section at that time. See 73 FR at
67642. In response to a comment in the 2008 rulemaking, we explained
that we were retaining the provision in order to accommodate unexpended
State and Tribal share moneys distributed to certified states and
tribes prior to the effective date of the 2006 amendments. See 73 FR at
67617. However, we reiterated that this section should ``reflect the
greater discretion that certified States and Indian tribes now have to
use Title IV moneys'' and that ``Sec. 884.17(a) no longer applies to
certified States and Indian tribes using prior balance replacement
funds or certified in lieu funds.'' Id.
Although we did not propose any changes to this section in the most
recent proposed rule, we received one comment requesting that we make
[[Page 6443]]
revisions to the section, if appropriate, to clarify how the section
relates to the flexibility granted to certified states and tribes by
the 2006 amendments to use their Title IV funds. In response to the
comment, we reviewed the history of this provision and verified that no
certified state or tribe has any funds remaining in their Title IV
grants that would be subject to these restrictions. Accordingly, we
have decided to revise Sec. 884.17(a) to remove these outdated
restrictions.
New Sec. 884.17(a) incorporates the language of section 411(f) of
SMCRA, which provides that certified states and tribes may expend AML
moneys on public facility projects if the governor of the state or the
head of the governing body of a tribe ``determines there is a need for
activities or construction of specific public facilities related to the
coal or minerals industry in States impacted by coal or minerals
development and the Secretary concurs.'' 30 U.S.C. 1240a(f). Thus, the
restrictions in previous Sec. 884.17(a)(1) and (3) that required
certified states to complete all coal and noncoal reclamation projects
and use any impact assistance funds available under the MLA or PILTA
before AML funds could be used on specific public facility projects
have been removed. The restriction in previous Sec. 884.17(a)(2) has
been modified to reflect the language of section 411(f) of SMCRA and
incorporated into new Sec. 884.17(a).
This revision is consistent with section 405(l) of SMCRA, which
provides that the limited liability protection of that provision
applies only to ``action taken or omitted in the course of carrying out
a State abandoned mine reclamation plan approved under this section
[section 405].'' The change to this regulation allows certified states
and tribes to revise their reclamation plans to provide for the
construction of public facility projects under those plans in
accordance with the current statutory and regulatory restrictions. Any
public facilities constructed under an approved AML reclamation plan in
accordance with part 875 would be a noncoal reclamation project and
would receive limited liability protection as authorized by section
405(l) of SMCRA and 30 CFR 875.19. Conversely, public facility projects
constructed with AML funds, but which are not undertaken as part of the
approved AML reclamation plan in accordance with part 875, will not
receive limited liability protection.
6. How are we revising Part 885--Grants to Certified States and Indian
Tribes?
As described in the proposed rule and discussed in more detail
below, we are revising this part to grant certified states and tribes
the discretionary authority to use prior balance replacement funds and
certified in lieu funds for noncoal reclamation projects under part
875. To accomplish this goal, we are revising Sec. 885.12 to expand
the list of activities eligible for certified program funding, and we
are revising Sec. 885.16 to ensure that the appropriate project
authorization and environmental reviews are conducted. Finally, we are
revising Sec. 885.20 to ensure that we receive the necessary grant
information and project reporting for all noncoal reclamation projects
conducted under part 875.
What can I use grant funds for? (Sec. 885.12)
As proposed, we are revising Sec. 885.12(b) to clarify that
certified states and tribes may use prior balance replacement funds and
certified in lieu funds for noncoal reclamation projects under section
411 of SMCRA and 30 CFR part 875. We received no comments opposing our
proposed revisions to this section, and we are adopting the revisions
as proposed, along with minor non-substantive organizational changes to
enhance clarity and be consistent with plain language principles.
What responsibilities do I have after OSMRE approves my grant? (Sec.
885.16)
As described in the proposed rule, we are revising Sec. 885.16(e)
to provide that certified states and tribes that use prior balance
replacement funds and certified in lieu funds for noncoal reclamation
projects under part 875 must request and receive a written
authorization from us to proceed before construction may begin on
individual projects. Our authorization to proceed denotes that both the
state or tribe and OSMRE have taken all actions necessary to ensure
compliance with the National Environmental Policy Act of 1969
(NEPA),\29\ and any other applicable laws, clearances, permits, or
requirements.
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\29\ 42 U.S.C. 4321 et seq.
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To receive an authorization to proceed from us, a certified state
or tribe must follow its approved AML reclamation plan and conduct
administrative and site development activities within the procedural
framework provided by 30 CFR part 875 and other applicable regulations.
If we issue an authorization to proceed, the certified state or tribe
will qualify under section 405(l) of SMCRA and 30 CFR 875.19 for
limited liability protection for that project, including the
administrative and programmatic activities directly related to that
project. However, a certified state or Indian tribe may elect to
conduct noncoal reclamation projects outside the parameters of a SMCRA
noncoal AML reclamation program under 30 CFR part 875. Those activities
may include projects at CERCLA or UMTRCA sites as provided by other
laws. If a certified state or tribe conducts noncoal reclamation
projects outside an approved SMCRA AML reclamation plan and part 875,
it need not request an authorization to proceed from us, and it will
not receive limited liability protection for that project.
Certified states and tribes have many years of experience designing
and carrying out noncoal reclamation projects with moneys from the AML
Fund. As with those projects, submissions for noncoal reclamation
projects using prior balance replacement funding and certified in lieu
funding must contain information sufficient to comply with NEPA and AML
grant and administrative requirements. These review elements include,
but are not limited to, information sufficient for the conduct of
assessments under NEPA, the Endangered Species Act, National Historic
Preservation Act, and the Clean Water Act. In addition, we will review
proposals and conduct oversight activities as needed to ensure that our
program requirements related to site eligibility, grants management,
and AML Inventory management are met. Proposals that receive our
approval as noncoal reclamation projects must be implemented consistent
with the scope of work that we approve, and we must review changes in
project scope or activities that would materially alter the
environmental consequences of the reclamation. We received no comments
opposing our proposed revisions to this section and are adopting the
revisions as proposed, with minor editorial revisions for clarity.
What must I report? (Sec. 885.20)
Consistent with the proposed rule, we are revising Sec. 885.20 to
clarify that certified programs using prior balance replacement funds
and certified in lieu funds for noncoal reclamation projects under
section 411 of SMCRA and part 875 of the regulations must update the
AML inventory for each noncoal reclamation project as it is funded. We
received no comments opposing our proposed revisions to this section
and are adopting the revisions as proposed.
[[Page 6444]]
III. Procedural Matters and Required Determinations
A. Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
rule in a manner consistent with these requirements.
Seven certified states and tribes will be affected by this rule,
which removes a disincentive for certified states and tribes to
undertake noncoal reclamation projects. We estimate that approximately
30 to 60 noncoal reclamation projects will be covered by SMCRA's
limited liability provision each year, although we cannot predict
whether these projects would have been undertaken in the absence of
this rule. This rule does not impose any additional mandatory costs on
certified states and tribes because participation is voluntary.
Reclamation projects improve the quality of the human environment and
eliminate hazardous conditions while improving water quality, air
quality, wildlife habitat, community aesthetics, and the visual
landscape. In the future, other states will be subject to this rule
upon certification.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (RFA).\30\ The revisions
are not expected to have a significant adverse economic impact on the
regulated community, including small entities. This rule will affect
the states of Louisiana, Montana, Texas, and Wyoming and the Crow
Tribe, the Hopi Tribe, and the Navajo Nation.
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\30\ 5 U.S.C. 601 et seq.
---------------------------------------------------------------------------
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under the Small Business Regulatory
Enforcement Fairness Act.\31\ For the reasons previously discussed, the
rule will not--
---------------------------------------------------------------------------
\31\ 5 U.S.C. 804(2).
---------------------------------------------------------------------------
a. Have an annual effect on the economy of $100 million or more.
b. Cause a major increase in costs or prices for consumers,
individual industries; Federal, state, or local government agencies; or
geographic regions.
c. Have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates
This rule will not impose an unfunded mandate on state, local, or
tribal governments or the private sector of more than $100 million per
year. The rule will 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
\32\ is not required.
---------------------------------------------------------------------------
\32\ 2 U.S.C. 1534.
---------------------------------------------------------------------------
E. Executive Order 12630--Takings
The rule will not have significant takings implications because it
is not a governmental action capable of interference with
constitutionally protected property rights. A takings implication
assessment is not required.
F. Executive Order 13132--Federalism
This rule will not alter or affect the relationship between states
and the Federal Government. Therefore, the rule will not have
significant Federalism implications. Consequently, there is no need to
prepare a Federalism assessment.
G. Executive Order 12988--Civil Justice Reform
The Office of the Solicitor for the Department of the Interior has
determined that this rule will not unduly burden the judicial system
and that it meets the requirements of sections 3(a) and 3(b)(2) of the
Executive Order.
H. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the revisions will not have substantial direct
effects 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.
We invited tribal representatives to consult with us on our
intention to propose this rule. In response to a request for
consultation, we met with representatives from the Hopi Tribe and
Navajo Nation on July 10, 2012, at Kykotsmovi, Arizona. The Crow Tribe
did not request consultation.
The Hopi Tribe and the Navajo Nation stated that they would like
the rule to allow a tribe with an approved AML reclamation program to
be able to request limited liability protection for some projects but
to decline it for others. Our rule accommodates this approach by
granting certified states and tribes discretionary authority to conduct
noncoal reclamation projects (including construction of certain utility
and public facility projects) pursuant to 30 CFR part 875 under the
aegis of an approved SMCRA noncoal AML reclamation plan and the
applicable regulations whenever the state or tribe wishes to avail
itself of the limited liability protection of section 405(l) of SMCRA
and 30 CFR 875.19.
The tribes also indicated that they would prefer that the limited
liability protections apply to all projects, including public facility
projects, and that OSMRE should be involved in the NEPA process because
OSMRE understands the required NEPA procedures. The final rule
incorporates provisions accommodating these requests.
Similarly, the tribes requested that the limited liability
protection apply to noncoal AML projects, as they were concerned that
they could face liability issues if they chose to remediate sites, such
as abandoned uranium mines. As mentioned above, however, Section 411(d)
of SMCRA, effectively specifies that sites listed for remedial action
under UMTRCA or CERCLA are not eligible for projects under the noncoal
reclamation program operating under part 875. Consequently, under our
rule, certified states and tribes may not receive limited liability
protection for noncoal AML projects at such sites. We emphasize,
however that there is no prohibition against certified states and
tribes using prior balance replacement funds or certified in lieu funds
moneys at UMTRCA and CERCLA sites as long as they do so outside the
scope of a SMCRA noncoal AML reclamation
[[Page 6445]]
program. But, because of the statutory limitation, they cannot receive
limited liability coverage for those projects.
States and tribes should be cognizant that, while the limited
liability provision protects them from costs and damages under Federal
laws, they must still comply with applicable Federal laws. All grant
recipients, including Indian tribes, must provide assurances to OSMRE
that expenditures of AML funding will comply with Federal laws, as well
as state, tribal, and local laws.
The tribes questioned how the rule might affect a tribe's AML
reclamation plan. Certified states and tribes will need to conduct a
detailed review of their existing approved AML reclamation plans to
determine if any changes are necessary as a result of adoption of this
final rule. OSMRE staff will be available to assist in this review.
Because noncoal reclamation was routinely conducted by certified states
and tribes prior to our 2008 Rule, it is possible that some or all of
the approved AML reclamation plans may contain language sufficient to
implement the rule with only minimal changes.
The tribes also voiced concern about the extent of limited
liability protection provided to public facility projects. The limited
liability provision extends protections to public facility projects if
they are conducted under an approved SMCRA noncoal AML reclamation plan
consistent with paragraphs (b) through (g) of section 411 of SMCRA and
30 CFR part 875. The limited liability provision in 30 CFR 875.19
specifies that a state or Indian tribe is not liable under Federal law
for any costs or damages as a result of any action it takes or omits to
take while conducting noncoal reclamation activities under part 875.
The provision does not preclude liability for gross negligence or
intentional misconduct by a state or Indian tribe.
In addition, the tribes commented on the relationship between
SMCRA's limited liability provision and the Department of the
Interior's trust responsibilities. More specifically, the tribes asked
if OSMRE assumes liability whenever it provides funding to a tribe. The
answer to that question is no. OSMRE distributes AML funding to a tribe
not as part of a trust relationship but, instead, as part of a
government-to-government relationship. The limited liability provision
of section 405(l) of SMCRA, in turn, reduces the potential liability of
a state or Indian tribe under Federal law for costs or damages for
actions taken or omitted when carrying out an approved AML reclamation
plan and the applicable regulations. All grant recipients, including
Indian tribes, must provide assurances to OSMRE that expenditures of
AML funding will comply with Federal laws, as well as state, tribal,
and local laws. By providing funding, OSMRE assumes no liability for
actions taken by the tribe or tribal officials. This rule does not
affect or relate to the Department's trust responsibilities.
I. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not considered a significant energy action under
Executive Order 13211 because it is not classified as a significant
rule under Executive Order 12866 and because the revisions will not
have a significant adverse effect on the supply, distribution, or use
of energy. Therefore, a statement of energy effects is not required.
J. Paperwork Reduction Act
This rule contains no new information collection requirements that
are not already covered by Office of Management and Budget (OMB)
control numbers 1029-0059 (for 30 CFR parts 735, 885 and 886 and grant
forms OSM-47, OSM-49 and OSM-51) and 1029-0087 (for the OSM-76--Problem
Area Description Form). We anticipate that the rule will not result in
an increase in either the number of respondents who prepare grant forms
or the burden per respondent.
K. National Environmental Policy Act
We have determined that the revisions in this rule are
categorically excluded from preparation of an environmental assessment
or environmental impact statement under the National Environmental
Policy Act,\33\ as provided in 43 CFR 46.205(b). The specific
categorical exclusion that applies is the exclusion in 43 CFR
46.210(i). This exclusion includes policies, directives, regulations,
and guidelines that are of an administrative, financial, legal,
technical, or procedural nature. In this case, extension of the limited
liability provision of section 405(l) to noncoal reclamation projects
conducted by certified states is a legal matter. Moreover, this
categorical exclusion also covers policies, directives, regulations,
and guidelines ``whose environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will later be subject to the NEPA process, either collectively or
case-by-case.'' 43 CFR 46.210(i). In this case, because of the amount
of discretion that certified states and tribes have in expending their
AML funding, it is unclear if or how this limited liability coverage
will affect the number of noncoal reclamation projects performed.
However, as required by this rule at 30 CFR 885.16(e), any noncoal
reclamation project that is eligible for limited liability protection
must undergo specific NEPA review during the grant application process.
Thus, this categorical exclusion applies because, to the extent that
this rule generates any environmental effects, these effects will be
analyzed at a later date when the environmental effects are less
``broad, speculative, or conjectural.'' In addition, none of the
extraordinary circumstances listed in 43 CFR 46.215 applies.
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\33\ 42 U.S.C. 4332(2)(c).
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L. Information Quality Act
In developing this rule, we did not conduct or use a study,
experiment, or survey requiring peer review under the Information
Quality Act (Pub. L. 106-554, section 15).
List of Subjects
30 CFR Part 700
Administrative practice and procedure, 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 877
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,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 884
Grant programs--natural resources, 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.
[[Page 6446]]
Dated: December 3, 2014.
Janice M. Schneider,
Assistant Secretary, Land and Minerals Management.
For the reasons set forth in the preamble, the Department is
amending 30 CFR parts 700, 875, 877, 879, 884, and 885 as set forth
below.
PART 700--GENERAL
0
1. The authority citation for part 700 is revised to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Amend Sec. 700.5 by adding a definition for the term ``SMCRA'' in
alphabetical order to read as follows:
Sec. 700.5 Definitions.
* * * * *
SMCRA means the Surface Mining Control and Reclamation Act of 1977,
30 U.S.C. 1201 et seq., as amended.
* * * * *
PART 875--CERTIFICATION AND NONCOAL RECLAMATION
0
3. The authority citation for part 875 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
4. In Sec. 875.11, revise paragraph (b) to read as follows:
Sec. 875.11 Applicability.
* * * * *
(b) If you are a State or Indian tribe that has certified under
section 411(a) of the Act--
(1) You must use State share or Tribal share funds distributed to
you under section 402(g)(1) of the Act before October 1, 2007, in
accordance with this part; and
(2) You may use prior balance replacement funds distributed to you
under section 411(h)(1) of the Act, certified in lieu funds distributed
to you under section 411(h)(2) of the Act, or both, to--
(i) Maintain certification as required by Sec. Sec. 875.13 and
875.14 of this part; or
(ii) Conduct a noncoal reclamation project in accordance with the
requirements of this part.
0
5. In Sec. 875.16, revise paragraph (b) to read as follows:
Sec. 875.16 Exclusion of certain noncoal reclamation sites.
* * * * *
(b) You, the certified State or Indian tribe, may not reclaim 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.) using--
(1) Moneys distributed from the Fund under section 402(g)(1) of the
Act.
(2) Prior balance replacement funds distributed to you under
section 411(h)(1) of the Act where you are conducting reclamation under
the provisions of this part.
(3) Certified in lieu funds distributed to you under section
411(h)(2) of the Act where you are conducting reclamation under the
provisions of this part.
0
6. Revise Sec. 875.17 to read as follows:
Sec. 875.17 Land acquisition authority--noncoal.
The requirements of parts 877 (Rights of Entry) and 879
(Acquisition, Management and Disposition of Lands and Water) of this
chapter apply to a State's or Indian tribe's noncoal reclamation
projects conducted under this part, except that, for purposes of this
section, the term ``noncoal'' replaces all references to ``coal'' in
parts 877 and 879 of this chapter.
0
7. Revise Sec. 875.19 to read as follows:
Sec. 875.19 Limited liability.
No State or Indian tribe conducting noncoal reclamation activities
under the provisions of this part is liable under any provision of
Federal law for any costs or damages as a result of action taken or
omitted in the course of carrying out an approved State or Indian tribe
abandoned mine reclamation plan. This section does not preclude
liability for costs or damages as a result of gross negligence or
intentional misconduct by the State or Indian tribe. For purposes of
the preceding sentence, reckless, willful, or wanton misconduct will
constitute gross negligence or intentional misconduct.
0
8. 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 any contract by a certified State
or Indian tribe to undertake a noncoal reclamation project 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 applies only to any contracts by a certified
State or Indian tribe that are for coal reclamation or that are for a
noncoal reclamation project under this part.
PART 877--RIGHTS OF ENTRY
0
9. The authority citation for part 877 is revised to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
10. Revise Sec. 877.1 to read as follows:
Sec. 877.1 Scope.
This part establishes procedures for entry upon lands or property
by OSMRE, States, and Indian tribes for reclamation purposes. For
certified States or Indian tribes conducting noncoal reclamation
projects under the provisions of part 875, the term ``noncoal''
replaces all references to ``coal'' in this part.
PART 879--ACQUISITION, MANAGEMENT, AND DISPOSITION OF LANDS AND
WATERS
0
11. The authority citation for part 879 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
12. Revise Sec. 879.1 to read as follows:
Sec. 879.1 Scope.
This part establishes procedures for acquisition of eligible land
and water resources for emergency abatement activities and reclamation
purposes by you, a State or Indian tribe, with an approved reclamation
program that has not certified completion of coal reclamation or a
certified State or Indian tribe conducting noncoal reclamation
activities under part 875 of this chapter, or by us. It also provides
procedures for the management and disposition of lands acquired by the
State, the Indian tribe, or us. For certified States or Indian tribes
conducting noncoal reclamation projects under the provisions of part
875, the term ``noncoal'' replaces all references to ``coal'' in this
part.
0
13. In Sec. 879.11, revise paragraphs (a) and (b) to read as follows:
Sec. 879.11 Land eligible for acquisition.
(a)(1) We may acquire land adversely affected by past coal mining
practices with moneys from the Fund.
(2) You, an uncertified State or Indian tribe or a certified State
or Indian tribe conducting noncoal reclamation projects under part 875
of this chapter, may acquire land adversely affected by past coal
mining practices with moneys from the Fund or with prior balance
replacement funds and certified in lieu funds provided under Sec. Sec.
872.29 and 872.32 of this chapter, provided that we first approve the
acquisition in writing.
(3) Before acquiring land under paragraph (a)(1) of this section or
approving land acquisition under paragraph (a)(2) of this section, we
must
[[Page 6447]]
make a finding that the land acquisition is necessary for successful
reclamation and that--
(i) The acquired land will serve recreation, historic,
conservation, and reclamation purposes or provide open space benefits
after restoration, reclamation, abatement, control, or prevention of
the adverse effects of past coal mining practices; and
(ii) 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 or a certified State
or Indian tribe conducting noncoal reclamation projects under part 875
of this chapter, 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 and certified in lieu funds
provided under Sec. Sec. 872.29 and 872.32 of this chapter. We, OSMRE,
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 the reclamation program.
(2) Where an emergency situation exists and a written finding as
set forth 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.
* * * * *
0
14. In Sec. 879.15, revise paragraph (h) to read as follows:
Sec. 879.15 Disposition of reclaimed land.
* * * * *
(h) You must return all moneys received from disposal of land under
this part 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 884--STATE RECLAMATION PLANS
0
15. The authority citation for part 884 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
16. Amend Sec. 884.13 as follows:
0
a. Remove the introductory text;
0
b. Redesignate paragraphs (a) through (f) as paragraphs (a)(1) through
(a)(6), respectively;
0
c. In newly redesignated paragraph (a)(3), redesignate paragraphs (1)
through (7) as paragraphs (a)(3)(i) through (vii), respectively;
0
d. In newly redesignated paragraph (a)(4), redesignate paragraphs (1)
through (4) as paragraphs (a)(4)(i) through (iv), respectively;
0
e. In newly redesignated paragraph (a)(5), redesignate paragraphs (1)
through (3) as paragraphs (a)(5)(i) through (iii), respectively;
0
f. In newly redesignated paragraph (a)(6), redesignate paragraphs (1)
through (3) as paragraphs (a)(6)(i) through (iii), respectively; and
0
g. Add new paragraphs (a) introductory text and (b).
The additions read as follows:
Sec. 884.13 Content of proposed State reclamation plan.
(a) Requirements applicable to all eligible States and Indian
tribes. You must submit the proposed reclamation plan to the Director
in writing. The plan must include the information in paragraphs (a)(1)
through (6) of this section.
* * * * *
(b) Additional requirement applicable to certified States and
Indian tribes. If you are a certified State or Indian tribe, the plan
must include a commitment to address eligible coal problems found or
occurring after certification as required in Sec. Sec. 875.13(a)(3)
and 875.14(b) of this chapter.
0
17. In Sec. 884.17, revise paragraph (a) to read as follows:
Sec. 884.17 Other uses by certified States and Indian tribes.
(a) The reclamation plan for a certified State or Indian tribe may
provide for the construction of specific public facilities related to
the coal or minerals industries in States impacted by coal or minerals
development. This form of assistance is available when the Governor of
the State or the head of a governing body of an Indian tribe determines
there is a need for such activities or construction and the Director
concurs.
* * * * *
PART 885--GRANTS FOR CERTIFIED STATES AND INDIAN TRIBES
0
18. The authority citation for part 879 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
19. In Sec. 885.12, revise paragraph (b) to read as follows:
Sec. 885.12 What can I use grant funds for?
* * * * *
(b)(1) You may use grant funds as established for each type of
funds you receive.
(2) You may use prior balance replacement funds as provided under
Sec. 872.31 of this chapter.
(3) You may use certified in lieu funds as provided under Sec.
872.34 of this chapter.
(4) You may use the following moneys for noncoal reclamation
projects under section 411 of the Act and part 875 of this chapter:
(i) Moneys that may be available to you from the Fund.
(ii) Prior balance replacement funds made available under Sec.
872.31 of this chapter.
(iii) Certified in lieu funds as provided under Sec. 872.34 of
this chapter.
* * * * *
0
20. In Sec. 885.16, revise the section heading and paragraph (e) to
read as follows:
Sec. 885.16 What responsibilities do I have after OSMRE approves my
grant?
* * * * *
(e) If you conduct a coal reclamation project under part 874 of
this chapter or noncoal reclamation project under part 875 of this
chapter, you must not expend any construction funds until you receive a
written authorization from us to proceed on an 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 (42 U.S.C. 4321 et seq.) and any other applicable
laws, clearances, permits, or requirements.
* * * * *
0
21. In Sec. 885.20, revise paragraph (c) to read as follows:
Sec. 885.20 What must I report?
* * * * *
(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 coal reclamation projects or noncoal reclamation
projects under part 875 of this chapter, you must update the AML
inventory for each reclamation project as you fund it.
(2) You must update the AML inventory for each reclamation project
you complete as you complete it.
(3) We must approve any amendments to the AML inventory after
December 20, 2006. We define amendment as any
[[Page 6448]]
coal problems added to the AML inventory in a new or existing problem
area.
[FR Doc. 2015-02278 Filed 2-4-15; 8:45 am]
BILLING CODE 4310-05-P
