Title 30—Mineral Resources--Volume 1
PART 872—MONEYS AVAILABLE TO ELIGIBLE STATES AND INDIAN TRIBES
§ 872.1   What does this part do?
This part sets forth procedures and general responsibilities for managing funds received under Title IV of the Surface Mining Control and Reclamation Act of 1977, as amended.
§ 872.5   Definitions.
As used in this part—
Allocate means to identify moneys in our records at the time they are received by the Fund. The allocation process identifies moneys in the Fund by the type of funds collected, including the specific State or Indian tribal share.
Award means to approve our grant agreement authorizing you to draw down and expend program funds.
Distribute means to annually assign funds to a specific State or Indian tribe. After distribution, funds are available for award in a grant to that specific State or Indian tribe.
Indian Abandoned Mine Reclamation Fund or Indian Fund means a separate fund that an Indian tribe established to account for moneys we award under parts 885 or 886 of this chapter or other moneys these regulations authorize to be deposited in the Indian Fund.
Reclamation plan or State reclamation plan means a plan that a State or Indian tribe submitted and that we approved under section 405 of SMCRA and part 884 of this chapter.
State Abandoned Mine Reclamation Fund or State Fund means a separate fund that a State established to account for moneys we award under parts 885 or 886 of this chapter or other moneys these regulations authorize to be deposited in the State Fund.
§ 872.10   Information collection.
In accordance with 44 U.S.C. 3501 et seq., the Office of Management and Budget (OMB) has approved the information collection requirements of part 872 and assigned it control number 1029-0054. The information is used to determine whether States and Indian tribes will be granted funds for reclamation activities. States and Indian tribes must respond to obtain a benefit in accordance with SMCRA. A Federal agency may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.
§ 872.11   Where do moneys in the Fund come from?
Revenue to the Fund includes—
(a) Reclamation fees we collect under section 402 of SMCRA and part 870 of this chapter;
(b) Amounts we collect from charges for use of land acquired or reclaimed with moneys from the Fund under part 879 of this chapter;
(c) Moneys we recover through satisfaction of liens filed against privately owned lands reclaimed with moneys from the Fund under part 882 of this chapter;
(d) Moneys we recover from the sale of lands acquired with moneys from the Fund or by donation;
(e) Moneys donated to us for the purpose of abandoned mine land reclamation; and
(f) Interest and any other income earned from investment of the Fund. We will credit interest and other income only to the Secretary's share.
§ 872.12   Where do moneys distributed from the Fund and other sources go?
(a) Each State or Indian tribe with an approved reclamation plan must establish an account to be known as a State or Indian Abandoned Mine Reclamation Fund. These funds will be managed in accordance with the OMB Circular A-102.
(b) Revenue for the State and Indian Abandoned Mine Reclamation Funds will include—
(1) Amounts we granted for purposes of conducting the approved reclamation plan;
(2) Moneys collected from charges for uses of land acquired or reclaimed with moneys from the State or Indian Abandoned Mine Reclamation Fund under part 879 of this chapter;
(3) Moneys recovered through the satisfaction of liens filed against privately owned lands;
(4) Moneys the State or Indian tribe recovered from the sale of lands acquired under Title IV of SMCRA; and
(5) Such other moneys as the State or Indian tribe decides should be deposited in the State or Indian Abandoned Mine Reclamation Fund for use in carrying out the approved reclamation program.
(c) Moneys deposited in State or Indian Abandoned Mine Reclamation Funds must be used to carry out the reclamation plan approved under part 884 of this chapter and projects approved under § 886.27 of this chapter.
§ 872.13   What moneys does OSM distribute each year?
(a) Under Title IV of SMCRA, each Federal fiscal year we must distribute to you, the States and Indian tribes with approved reclamation plans, the moneys listed in this section. We distribute all Fund moneys and other moneys from the Treasury that have been designated for mandatory distribution. We provide information to you showing how we calculated your distribution. We distribute the following moneys:
(1) State share funds to uncertified States as described in § 872.14;
(2) Tribal share funds to uncertified Indian tribes as described in § 872.17;
(3) Historic coal funds to uncertified States and Indian tribes as described in § 872.21;
(4) Minimum program make up funds to eligible uncertified States and Indian tribes as described in § 872.26;
(5) Prior balance replacement funds to certified and uncertified States and Indian tribes as described in § 872.29; and
(6) Certified in lieu funds to certified States and Indian tribes as described in § 872.32.
(b) We calculate annual fee collections for coal produced in the previous Federal fiscal year on a net cash basis. This means that we use collections that are paid for the current Federal fiscal year to adjust fees that were overpaid or underpaid in prior fiscal years.
(c) We distribute any Congressionally-appropriated funds for grants to you out of the Federal expense funds when the appropriation becomes available.
(d) You may apply for any or all distributed funds at any time after the distribution using the procedures in part 885 of this chapter for certified States and Indian tribes or part 886 for uncertified States and Indian tribes.
§ 872.14   What are State share funds?
“State share funds” are moneys we distribute to you from your State share of the Fund each Federal fiscal year under section 402(g)(1)(A) of SMCRA. Your State share of the Fund is 50 percent of the reclamation fees we collected from within your State (excluding fees collected on Indian lands) and allocated to you, the State, in the Fund for coal produced in the previous fiscal year.
§ 872.15   How does OSM distribute and award State share funds?
(a) To be eligible to receive State share funds, you must meet the following criteria:
(1) You must have and maintain an approved reclamation plan under part 884 of this chapter; and
(2) You cannot be certified under section 411(a) of SMCRA.
(b) If you meet the eligibility requirements in paragraph (a) of this section, we will distribute and award these State share funds to you as follows:
(1) We annually distribute State share funds to you as shown in the following table:
(2) We award these funds to you in grants according to the provisions of part 886 of this chapter.
§ 872.16   Are there any restrictions on how States may use State share funds?
Yes. You may only use State share funds for:
(a) Coal reclamation under § 874.12 of this chapter;
(b) Water supply restoration under § 874.14 of this chapter;
(c) Noncoal reclamation under § 875.12 of this chapter that is requested under section 409(c) of SMCRA;
(d) Deposit into an acid mine drainage abatement and treatment fund under part 876 of this chapter;
(e) Land acquisition under § 879.11 of this chapter; and
(f) Maintenance of the AML inventory under section 403(c) of SMCRA.
§ 872.17   What are Tribal share funds?
“Tribal share funds” are moneys we distribute to you from your Tribal share of the Fund each Federal fiscal year under section 402(g)(1)(B) of SMCRA. Your Tribal share of the Fund is 50 percent of the reclamation fees we collected and allocated to you, the Indian tribe(s), in the Fund for coal produced in the previous fiscal year from the Indian lands in which you have an interest.
§ 872.18   How will OSM distribute and award Tribal share funds?
(a) To be eligible to receive Tribal share funds, you must meet the following criteria:
(1) You must have and maintain an approved reclamation plan under part 884 of this chapter; and
(2) You cannot be certified under section 411(a) of SMCRA.
(b) If you meet the eligibility requirements in paragraph (a) of this section, we will distribute and award these Tribal share funds to you as follows:
(1) We annually distribute Tribal share funds to you as shown in the following table:
(2) We award these funds to you in grants according to the provisions of part 886 of this chapter.
§ 872.19   Are there any restrictions on how Indian tribes may use Tribal share funds?
Yes. You may only use Tribal share funds for:
(a) Coal reclamation under § 874.12 of this chapter;
(b) Water supply restoration under § 874.14 of this chapter;
(c) Noncoal reclamation under § 875.12 of this chapter that is requested under section 409(c) of SMCRA;
(d) Deposit into an acid mine drainage abatement and treatment fund under part 876 of this chapter;
(e) Land acquisition under § 879.11 of this chapter; and
(f) Maintenance of the AML inventory under section 403(c) of SMCRA.
§ 872.20   What will OSM do with unappropriated AML funds currently allocated to the Rural Abandoned Mine Program ?
Under section 402(h)(4)(B) of SMCRA, we will make available any moneys that remain allocated to RAMP and that were not appropriated or moved to other allocations before December 20, 2006, for possible transfer to the three United Mine Workers of America (UMWA) health care plans described in section 402(h)(2) of SMCRA.
§ 872.21   What are historic coal funds?
(a) “Historic coal funds” are moneys provided under section 402(g)(5) of SMCRA based on the amount of coal produced before August 3, 1977, in your State or on Indian lands in which you have an interest. Under the Surface Mining Control and Reclamation Act Amendments of 2006, which were enacted as Division C, Title II, Subtitle A of P.L. 109-432, each year we allocate and distribute 30 percent of annual AML fee collections for coal produced in the previous fiscal year plus 60 percent of any other revenue to the Fund as historic coal funds to supplement grants to States and Indian tribes.
(b) Historic coal funds also include moneys we reallocate under sections 401(f)(3)(A)(i), 411(h)(1)(A)(ii), and 411(h)(4) of SMCRA, including:
(1) The moneys we reallocate based on prior balance replacement funds distributed under § 872.29, which will be available to supplement grants beginning with Federal fiscal year 2036; and
(2) The moneys we reallocate based on certified in lieu funds distributed under § 872.32, which will be available to supplement grants in Federal fiscal years 2009 through 2035.
§ 872.22   How does OSM distribute and award historic coal funds?
(a) To be eligible to receive historic coal funds, you must meet the following criteria:
(1) You must have and maintain an approved reclamation plan under part 884 of this chapter;
(2) You cannot be certified under section 411(a) of SMCRA; and
(3) You must have unfunded Priority 1 and 2 coal problems remaining under sections 403(a)(1) and (2) of SMCRA.
(b) If you meet the eligibility requirements in paragraph (a) of this section, we distribute these moneys to you using a formula based on the amount of coal historically produced before August 3, 1977, in your State or from the Indian lands concerned.
(c) We annually distribute historic coal funds to you as shown in the following table:
(d) In any given year, we will only distribute to you the historic coal funds that you need to reclaim your unfunded Priority 1 or 2 coal problems. Your distribution of State or Tribal share funds under § 872.14 or § 872.17 plus your distribution of historic coal funds along with unused funds from prior allocations could be more than you need to reclaim your remaining high priority problems. If that occurs, we will reduce the historic coal funds we distribute to you to the amount that you need to fully fund reclamation of all your remaining Priority 1 or 2 coal problems.
(e) We award these funds to you in grants according to the provisions of part 886 of this chapter.
§ 872.23   Are there any restrictions on how you may use historic coal funds?
Yes. You may only use historic coal funds for:
(a) Coal reclamation under § 874.12 of this chapter;
(b) Water supply restoration under § 874.14 of this chapter;
(c) Noncoal reclamation under § 875.12 of this chapter that is requested under section 409(c) of SMCRA;
(d) Deposit into an acid mine drainage abatement and treatment fund under part 876 of this chapter;
(e) Land acquisition under § 879.11 of this chapter; and
(f) Maintenance of the AML inventory under section 403(c) of SMCRA.
§ 872.24   What are Federal expense funds?
“Federal expense funds” are moneys available in the Fund that are not allocated or distributed as State share funds (§ 872.14), Tribal share funds (§ 872.17), historic coal funds (§ 872.21), or minimum program make up funds (§ 872.26). Congress must appropriate Federal expense funds before we may expend them.
§ 872.25   Are there any restrictions on how OSM may use Federal expense funds?
(a) We may use Federal expense funds only for the purposes in sections 402(g)(3)(A) through (D) and 402(g)(4) of SMCRA, which include the following:
(1) The Small Operator Assistance Program under section 507(c) of SMCRA (not more than $10 million annually);
(2) Emergency projects under State, Tribal, and Federal programs under section 410 of SMCRA;
(3) Nonemergency projects in States and on lands within the jurisdiction of Indian tribes that do not have an approved abandoned mine reclamation program under section 405 of SMCRA;
(4) The Secretary's administration of Title IV of SMCRA and this subchapter; and
(5) Projects authorized under section 402(g)(4) in States and on lands within the jurisdiction of Indian tribes that do not have an approved abandoned mine reclamation program under section 405 of SMCRA.
(b) We will not deduct moneys that we have annually allocated or distributed as Federal expense funds under sections 402(g)(3)(A) through (D) or (4) of SMCRA for any State or Indian tribe from moneys we annually allocate or distribute to a State or Indian tribe under the authority of sections 402(g)(1) or (5) of SMCRA.
(c) We expend moneys under the authority in section 402(g)(3)(C) of SMCRA only in States or on Indian lands where the State or Indian tribe does not have an abandoned mine reclamation program approved under section 405 of SMCRA.
§ 872.26   What are minimum program make up funds?
(a) “Minimum program make up funds” are additional moneys we distribute each Federal fiscal year to eligible States and Indian tribes to make up the difference between their total distribution of other funds and $3 million. The source of these funds is moneys in the Secretary's 20 percent share of the Fund that are authorized for mandatory distribution.
(b) To be eligible to receive funds under this section, you must meet the following criteria:
(1) You must have and maintain an approved reclamation plan under part 884 of this chapter;
(2) You cannot have certified under section 411(a) of SMCRA;
(3) The total amount you receive annually from State share funds (§ 872.14) or Tribal share funds (§ 872.17), historic coal funds (§ 872.21), and prior balance replacement funds (§ 872.29) must be less than $3 million; and
(4) You must need more than the total of funds you will receive from State or Tribal share, historic coal, and prior balance replacement funds to reclaim Priority 1 and 2 coal problems under sections 403(a)(1) and (2) of SMCRA in your State or on Indian lands within your jurisdiction.
(c) We will make funds available to the States of Missouri and Tennessee under this section to reclaim Priority 1 and 2 coal problems included in the AML inventory, provided each State has a reclamation plan approved under part 884 of this chapter.
§ 872.27   How does OSM distribute and award minimum program make up funds?
(a) If you meet the eligibility requirements in § 872.26(b), we will distribute these minimum program make up funds to you as follows:
(1) We calculate your total distribution under this part by first adding, in order, your prior balance replacement funds distribution (§ 872.29), your applicable State or Tribal share funds distribution (§ 872.14 or § 872.17), and your historic coal funds distribution (§ 872.21). If the sum of these funds is less than $3 million, we calculate the amount of minimum program make up funds to add to your distribution under this section to increase it to that level.
(2) For each Federal fiscal year, we add minimum program make up funds to your combined distribution of prior balance replacement, State or Tribal share, and historic coal funds as shown in the following table:
(b) We award these funds to you in grants according to the provisions of part 886 of this chapter.
§ 872.28   Are there any restrictions on how you may use minimum program make up funds?
Yes. You may only use minimum program make up funds for:
(a) Priority 1 and 2 coal reclamation under sections 403(a)(1) and (2) of SMCRA;
(b) Priority 3 reclamation that is part of Priority 1 or 2 coal reclamation under sections 403(a)(1) or (2) of SMCRA and § 874.13 of this chapter;
§ 872.29   What are prior balance replacement funds?
“Prior balance replacement funds” are moneys we must distribute to you instead of the moneys we allocated to your State or Tribal share of the Fund before October 1, 2007, but did not distribute to you because Congress did not appropriate them. They come from general funds of the United States Treasury that are otherwise unappropriated. Under section 411(h)(1) of SMCRA, we distribute prior balance replacement funds to you, the State or Indian tribe, for seven years starting in the Federal fiscal year beginning October 1, 2008.
§ 872.30   How does OSM distribute and award prior balance replacement funds?
(a) We distribute prior balance replacement funds to you as follows:
(1) In an amount equal to the aggregate, unappropriated amount allocated to you before October 1, 2007, under sections 402(g)(1)(A) or (B) of SMCRA;
(2) If you are, or are not, certified under section 411(a) of SMCRA; and
(3) Subject to § 872.35, in seven equal annual installments beginning with the 2008 Federal fiscal year which starts on October 1, 2007.
(b) We award these funds to you in grants according to the provisions of part 885 of this chapter for certified States and Indian tribes or part 886 of this chapter for uncertified States and Indian tribes.
(c) At the same time we distribute prior balance replacement funds to you under this section, we transfer the same amount to historic coal funds from moneys in your State or Tribal share of the Fund that were allocated to you before October 1, 2007. The transferred funds will be available for annual grants under § 872.21 for the Federal fiscal year beginning October 1, 2035, and annually thereafter. We will allocate, distribute, and award the transferred funds according to the provisions of §§ 872.21, 872.22, and 872.23.
§ 872.31   Are there any restrictions on how you may use prior balance replacement funds?
(a) Yes. If you are certified under section 411(a) of SMCRA, you may only use prior balance replacement funds for those purposes your State legislature or Tribal council establishes, giving priority to addressing the impacts of mineral development.
(b) Yes. If you are not certified under section 411(a) of SMCRA, you may only use prior balance replacement funds for the purposes in section 403 of SMCRA, which include:
(1) Reclamation of coal problems under § 874.12 of this chapter;
(2) Water supply restoration under § 874.14 of this chapter; and
(3) Maintenance of the AML inventory.
§ 872.32   What are certified in lieu funds?
“Certified in lieu funds” are moneys that we distribute to you, the certified State or Indian tribe, in lieu of moneys allocated to your State or Tribal share of the Fund after October 1, 2007. Certified in lieu funds come from general funds of the United States Treasury that are otherwise unappropriated. Beginning with the 2009 Federal fiscal year which starts on October 1, 2008, we distribute certified in lieu funds to you under section 411(h)(2) of SMCRA.
§ 872.33   How does OSM distribute and award certified in lieu funds?
(a) You must be certified under section 411(a) of SMCRA to receive certified in lieu funds.
(b) If you meet the eligibility requirement in paragraph (a) of this section, we distribute these certified in lieu funds to you as follows:
(1) Starting in the Federal fiscal year that begins on October 1, 2008, we annually distribute funds to you based on 50 percent of reclamation fees received for coal produced during the previous Federal fiscal year in your State or on Indian lands within your jurisdiction;
(2) The funds we annually distribute to you are in lieu of moneys we otherwise would distribute to you from State share funds under § 872.14 or Tribal share funds under § 872.17 had you not been excluded from receiving those funds under section 401(f)(3)(B) of SMCRA; and
(3) Subject to § 872.35, we annually distribute certified in lieu funds to you as shown in the following table:
(c) We award these funds to you in grants according to the provisions of part 885 of this chapter.
(d) At the same time we distribute certified in lieu funds to you under this section, we transfer the same amount to historic coal funds and make those funds available for annual grants under § 872.21 that same Federal fiscal year. We allocate, distribute, and award the transferred funds according to the provisions of §§ 872.21, 872.22, and 872.23.
(e) We will distribute to you the amounts we withhold under paragraph (b) of this section in two equal annual installments. We will do this in Federal fiscal years 2018 and 2019.
§ 872.34   Are there any restrictions on how you may use certified in lieu funds?
There are no limitations or restrictions on the use of certified in lieu funds in the Surface Mining Control and Reclamation Act Amendments of 2006 which were enacted as Division C, Title II, Subtitle A of P.L. 109-432.
§ 872.35   When will OSM reduce the amount of prior balance replacement funds or certified in lieu funds distributed to you?
(a) In any fiscal year in which the amount of Treasury funds required to be transferred under §§ 872.30 and 872.33 of this chapter and under section 402(i)(1) of SMCRA exceeds the maximum annual limit of $490 million, we will adjust the amount of these payments to reduce them to the level of the cap. Each distribution or transfer for the FY will be reduced by the same percentage.
(b) We will not include amounts under section 402(h)(5)(A) as part of this calculation.