Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 6435 

Policy Act secs. 131, 132, 133, 135, 137, 141, 

148 (42 U.S.C. 10151, 10152, 10153, 10155, 

10157, 10161, 10168); Government 

Paperwork Elimination Act sec. 1704 (44 

U.S.C. 3504 note); Energy Policy Act of 2005, 

Pub. L. 109–58, 119 Stat. 788 (2005). 

Section 72.44(g) also issued under Nuclear 

Waste Policy Act secs. 142(b) and 148(c), (d) 

(42 U.S.C. 10162(b), 10168(c), (d)). 

Section 72.46 also issued under Atomic 

Energy Act sec. 189 (42 U.S.C. 2239); Nuclear 

Waste Policy Act sec. 134 (42 U.S.C. 10154). 

Section 72.96(d) also issued under Nuclear 

Waste Policy Act sec. 145(g) (42 U.S.C. 

10165(g)). 

Subpart J also issued under Nuclear Waste 

Policy Act secs. 117(a), 141(h) (42 U.S.C. 

10137(a), 10161(h)). 

Subpart K also issued under Nuclear Waste 

Policy Act sec. 218(a) (42 U.S.C. 10198). 

■ 2. In § 72.214, Certificate of 

Compliance No. 1014 is revised to read 

as follows: 

§ 72.214 List of approved spent fuel 

storage casks. 

* * * * * 

Certificate Number: 1014. 

Initial Certificate Effective Date: May 

31, 2000. 

Amendment Number 1 Effective Date: 

July 15, 2002. 

Amendment Number 2 Effective Date: 

June 7, 2005. 

Amendment Number 3 Effective Date: 

May 29, 2007. 

Amendment Number 4 Effective Date: 

January 8, 2008. 

Amendment Number 5 Effective Date: 

July 14, 2008. 

Amendment Number 6 Effective Date: 

August 17, 2009. 

Amendment Number 7 Effective Date: 

December 28, 2009. 

Amendment Number 8 Effective Date: 

May 2, 2012, as corrected on November 

16, 2012 (ADAMS Accession No. 

ML12213A170, superseded by 

Amendment Number 8, Revision 1 on 

April 21, 2015. 

Amendment Number 8, Revision No.1 

Effective Date: April 21, 2015. 

Amendment Number 9 Effective Date: 

March 11, 2014. 

SAR Submitted by: Holtec 

International. 

SAR Title: Final Safety Analysis 

Report for the HI–STORM 100 Cask 

System. 

Docket Number: 72–1014. 

Certificate Expiration Date: May 31, 

2020. 

Model Number: HI–STORM 100. 

* * * * * 

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 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

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 

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 


rljohnson on DSK3VPTVN1PROD with RULES
6436 Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 

1 30 U.S.C. 1232(a). 

2 30 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. 

8 30 U.S.C. 1240a(e). 

9 30 U.S.C. 1240a(f). 

10 30 U.S.C. 1240a(g). 

11 30 U.S.C. 1237–1238. 

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, 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 

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. 

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 


rljohnson on DSK3VPTVN1PROD with RULES
Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 6437 

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). 

15 30 U.S.C. 1240a(h)(1). 

16 30 U.S.C. 1235(l). 

17 30 U.S.C. 1235(k). 18 30 CFR 875.11(b)(2). 

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 

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 

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 


rljohnson on DSK3VPTVN1PROD with RULES
6438 Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 

19 73 FR at 67613. 20See, 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.’’). 

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 

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-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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Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 6439 

21 30 U.S.C. 1240a(c), (e) and (f). 

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 

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 

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 

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


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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). 26 33 U.S.C. 1251 et seq. 

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 

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 

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 


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Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 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 (§ 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 § 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 

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. 

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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6442 Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 

27 30 U.S.C. 181 et seq. 

28Although 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.’’ 

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. 

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 

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 

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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Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 6443 

29 42 U.S.C. 4321 et seq. 

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 

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 

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. 


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6444 Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 

30 5 U.S.C. 601 et seq. 

31 5 U.S.C. 804(2). 

32 2 U.S.C. 1534. 

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. 

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 

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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Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 6445 

33 42 U.S.C. 4332(2)(c). 

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 

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, 

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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6446 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. 

■ 2. Amend § 700.5 by adding a 

definition for the term ‘‘SMCRA’’ in 

alphabetical order to read as follows: 

§ 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 

■ 3. The authority citation for part 875 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 4. In § 875.11, revise paragraph (b) to 

read as follows: 

§ 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 §§ 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: 

§ 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. 

■ 6. Revise § 875.17 to read as follows: 

§ 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. 

■ 7. Revise § 875.19 to read as follows: 

§ 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. 

■ 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. 

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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Federal Register / Vol. 80, No. 24 / Thursday, February 5, 2015 / Rules and Regulations 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 §§ 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. 

* * * * * 

(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 

■ 15. The authority citation for part 884 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 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: 

Authority: 30 U.S.C. 1201 et seq. 

■ 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 


rljohnson on DSK3VPTVN1PROD with RULES
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 

AGENCY: Coast Guard, DHS. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: 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 http://

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. 

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: 

Table of Acronyms 

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 http://

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 http://

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 

http://www.regulations.gov, type the 

docket number in the ‘‘SEARCH’’ box 

and click ‘‘SEARCH.’’ Click on ‘‘Submit 

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 

http://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 


rljohnson on DSK3VPTVN1PROD with RULES