9974 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Parts 870, 886, 887, and 888

RIN No. 1029–AB72

Abandoned Mine Reclamation Grant

Procedures

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule.

SUMMARY: These regulations incorporate

new grant procedures implemented by

OSM and make editorial changes to

ensure consistency with the statutory

changes to Title IV of the Surface

Mining Control and Reclamation Act

(SMCRA) of 1977, Public Law 95–87.

EFFECTIVE DATE: March 24, 1995.

FOR FURTHER INFORMATION CONTACT:

Norman J. Hess, Office of Surface

Mining Reclamation and Enforcement,

U.S. Department of the Interior, 1951

Constitution Avenue NW., Washington,

D.C. 20240; Telephone: 202–208–2949.

SUPPLEMENTARY INFORMATION:

I. Background

II. Final Rules and Disposition of Comments

III. Procedural Matters

I. Background

A. Summary of the Abandoned Mine

Land (AML) Program

The AML Program was established by

SMCRA, Pub. L. 95–87, 30 U.S.C. 1201

et seq., in response to concern over

extensive environmental damage caused

by past coal mining activities. In effect,

the Abandoned Mine Reclamation Fund

(Fund) and the program it supports is

the coal industry’s equivalent to the

‘‘Superfund’’ administered by the

Environmental Protection Agency to

address hazardous waste discharges.

The eligibility requirements for

reclamation of abandoned mine lands

are contained in Section 404 of SMCRA.

Funding of reclamation projects is

subject to a priority schedule. For

example, ‘‘Priority 1’’ projects concern

those that involve the protection of

public health, safety, general welfare,

and property from extreme danger of the

adverse effects of coal mining practices.

‘‘Priority 3’’ projects, on the other hand,

concern environmental problems

associated with past coal mining

practices that do not necessarily

constitute a public health or safety

threat or affect the general welfare.

The Fund, administered by the

Secretary of the Interior through OSM,

is financed by a reclamation fee

assessment on every ton of mined coal

at the rate of 35 cents per ton of surface

mined coal, 15 cents per ton of

underground mined coal, and 10 cents

per ton for lignite. Expenditures from

the Fund are subject to appropriation by

Congress.

The Fund is divided into the State/

Indian tribe and Federal shares with

each State or Indian tribe under a

federally approved reclamation program

entitled to fifty percent of the

reclamation fees collected from coal

operations within the State or respective

Indian lands. Annually, these States/

Indian tribes receive grants to carry out

reclamation projects under their AML

programs. States are authorized to use

up to $3 million of their State-share

funds to establish State coal mine

subsidence insurance programs, and are

also authorized to deposit up to ten

percent of their annual grants into

special interest-bearing State trust

accounts available for future

reclamation purposes or for acid mine

drainage reclamation projects.

The Federal expenses share of the

Fund is allocated among a number of

programs such as Federal emergency

projects (involving sudden and lifethreatening situations that demand

immediate attention), high-priority

reclamation projects in States and

Indian lands without federally approved

reclamation programs (referred to as

‘‘nonprogram’’ States/Indian tribes), and

the Small Operator Assistance Program,

which provides financial assistance to

small coal operators to help defray

certain costs associated with the surface

coal mining permitting process. At

present, 23 States and three Indian

tribes have OSM approved abandoned

mine reclamation programs.

B. Proposed Rules

OSM published proposed rules at 58

FR 59334–59342 (November 8, 1993)

concerning abandoned mine

reclamation grant procedures and

requested comments from the public.

During the comment period on the

proposed rules, OSM received

comments from a variety of sources.

Pursuant to Executive Order 12866,

every Federal agency is required within

applicable statutory limits to select

regulatory goals that maximize benefits

to society and to select the most

effective means to achieve these goals.

To this end OSM has received

comments and recommendations from

the public and representatives of coal

mining States/Indian tribes.

All comments received during the

comment period were considered in this

rulemaking process, and all substantive

comments received are addressed in the

following preamble. All comments

received are available for inspection in

the OSM Administrative Record, room

660, 800 North Capitol Street, NW,

Washington, D.C. 20001.

C. Overview of Changes to Abandoned

Mine Land Grant Regulations

Over the years, Congress has made

several amendments to the provisions in

Title IV of SMCRA. These amendments

have been, or are in the process of being,

implemented by OSM. In addition, the

Department has adopted the

governmentwide Grants Management

Common Rule (43 CFR part 12; subpart

C). Due to these changes, certain

regulatory references are now outdated

or refer to statutory provisions that no

longer exist. Therefore, in this

rulemaking OSM is editing the AML

regulations in 30 CFR chapter VII,

subchapter R, to ensure that they will be

consistent with agency practice and all

past amendments to Title IV of SMCRA.

The specific changes proposed to the

AML rules are set forth below.

II. Final Rules and Disposition of

Comments

Part 870–Abandoned Mine Reclamation

Fund-Fee Collection and Coal

Production Reporting

Section 870.5 is revised to include

Indian tribes in the definition of

‘‘agency’’ to reflect the OSM has

approved Abandoned Mine Reclamation

programs for three Indian tribes: the

Crow, Hopi, and Navajo. See Section

405(k) of Pub. L. No. 100–71, 101 Stat.

416 (1987). No comments were received

on this section which is adopted as

proposed.

Part 886—State Reclamation Grants

Section 886.1 is revised by adding the

term ‘‘Indian tribes’’ and deleting

specific reference to ‘‘State reclamation

plan[s]’’ to reflect that OSM has

approved abandoned mine reclamation

programs for three Indian tribes: the

Crow, Hopi, and Navajo. In every

instance in this document where Indian

tribe has been inserted, the purpose is

to add clarity and avoid confusion by

reflecting the fact that OSM approval

has been extended to Indian tribal

programs as well as State programs. See

Pub. L. No. 100–71, 101 Stat. 416 (1987).

No comments were received on this

section which is therefore adopted as

proposed.

OSM also amended § 886.3 by making

certain editorial changes. Subsection (b)

has been deleted and the subsection

designation for subsection (a) removed.

The word ‘‘allocated’’ has also been

replaced with ‘‘distributed annually.’’
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9975

This revision clarifies that AML grant

funds as ‘‘distributed’’ to States and

Indian tribes. The previous use of the

word ‘‘allocated’’ was, in the context

used, inappropriate. Allocation means

the administrative identification in the

records of OSM of monies in the Fund

for a specific purpose, e.g. identification

of monies for exclusive use by a State/

Indian tribe, whereas ‘‘distribution’’ is

the process by which OSM makes those

monies available to States/Indian tribes

after the monies are appropriated from

the AML Fund by Congress. Throughout

this final rule, editorial changes have

been made to clarify this terminology. In

addition, the word ‘‘annually’’ is added

to reflect the current procedure that

exists for AML grant distribution.

States/Indian tribes with approved AML

programs are eligible to submit AML

grant requests on an annual basis.

Subsection 886.3(b) has been deleted

due to the legislative changes

effectuated by the 1990 amendments to

Title IV of SMCRA. See the Abandoned

Mine Reclamation Act (AMRA) of 1990,

Pub. L. 101–508 (November 5, 1990). All

funds are now allocated for a specific

purpose (see 30 U.S.C. 1232(g)).

Accordingly, the reference to 30 CFR

§ 886.3 concerning ‘‘remaining funds’’ is

no longer relevant.

No comments concerning this section

were received from the public, thus, this

section is adopted as proposed.

Section 886.10 addresses information

collection requirements and the

appropriate OMB clearance number.

OSM revised and amended this section

by updating the data contained in the

section and including the estimated

reporting burden per response for

complying with the information

collection requirements. The revision

also provides OSM and OMB addresses

were comments regarding the

information collection requirements

may be sent. No comments were

received on this section which is

adopted as proposed.

Section 886.11 is amended to reflect

that OSM has approved Abandoned

Mine Reclamation plans for three Indian

tribes: the Crow, Hopi, and Navajo. No

comments were received on this section,

which is thus adopted as proposed.

Section 886.12(a) is amended by

removing the word ‘‘State.’’ This

amendment would reflect that Tribal

programs have been approved by OSM.

Section 886.12(b), which outlines the

permissible uses for grant moneys under

this part, is amended by revising the

subsection to reflect specific changes

made by the 1990 amendments to Title

IV of SMCRA. See Pub. L. No. 101–508.

Rather than listing certain reclamation

objectives, OSM is referencing specific

statutory and regulatory provisions that

detail eligibility requirements. This

change avoids confusion and provides

clearer direction for the States/Indian

tribes.

One commenter observed that the last

sentence of subsection (b) appears to

require the use of fuels other than

petroleum or natural gas where public

facility projects are constructed with

abandoned mine land grant funds. This

commenter was unclear as to why such

a requirement has been included, and

further felt that this restriction was

inappropriate in the context of these

regulations.

OSM responds that this provision

stems from Executive Order 12185

which requires, to the extent

technologically and economically

feasible, that public facilities planned,

constructed or modified in whole or

part with Federal funds (e.g., abandoned

mine land grant funds) should utilize

fuel other than petroleum or natural gas.

This provision has been in the

regulations since 1982. If a State/Indian

tribe determines that a public facility

project incorporating such provisions is

not technologically or economically

feasible, then compliance with this

requirement would not be required.

Subsection 886.13(a) is revised by

deleting any reference to administrative

grants as being separated grants in and

of themselves. This change reflects the

current OSM policy of awarding all

AML funds through a single grant.

Administrative costs in this grant would

no longer require a second grant, but

would cover only the first year of the

grant.

Two commenters expressed concern

on behalf of their members regarding the

requirement to begin the 12-month

administrative period at the beginning

of the grant since it may not coincide

with the grantee’s fiscal year. The

proposed rule would require grantees to

shift their construction grant period to

coincide with the fiscal year, thereby

losing much of the favorable

construction season. The commenter

suggests that grantees be allowed to

assign the 12-month performance period

for the administrative portion of a grant

to any 12-month period within the first

18 months of a grant. This additional

flexibility would allow the grantee’s

administrative cost period to coincide

with it’s fiscal year, while the

construction portion of a grant can be

scheduled to coincide with the

construction season.

OSM has not accepted this comment

and does not believe that a change to the

proposed rule language is required since

sufficient flexibility exists under the

current system and the proposed rule as

evidenced by several States that already

have made determinations to adjust

their administrative period to coincide

with the start of their fiscal year.

Section 886.13(b) is also revised in

order to implement changes made by

the 1990 amendments to SMCRA. These

statutory amendments deleted a

reference to ‘‘impact assistance

funding’’ in Section 402(g) of SMCRA

(30 U.S.C. § 1232), and moved these

reclamation objectives to the non-coal

provisions in new SMCRA Section 411

(30 U.S.C. § 1240(a)). A similar change

has been made in these regulations.

Additionally, and to avoid confusion,

OSM has replaced the specific reference

to Sections 403 and 409 (30 U.S.C.

§§ 1233 and 1239), of SMCRA with a

general reference to SMCRA.

OSM also has deleted paragraphs

(b)(2) and (b)(3) of § 886.13 which refer

to specific AML projects. Under the

revised AML grant procedures, project

specific information would be, in part,

in Abandoned Mine Land Inventory

System and, in part, submitted at the

time of project activation. This change

will decrease certain administration

costs of States/Indian tribes, thereby

allowing more AML funds to be used for

specific AML reclamation purposes.

Two commenters suggested that openended grants be allowed, in lieu of the

current 3-year limitation, so as to

accommodate longer performance

periods.

OSM accepts the comment to provide

flexibility in the grant period. This

change is being made to accommodate

longer performance periods where a

need is demonstrated by a State/Indian

tribe. Since no grant period is specified

in the statute, OSM believes that it has

the requisite authority under Subsection

413(a) of SMCRA to alter the current 3-

year grant period. OSM acknowledges,

however, that longer grant periods may

pose certain processing and fiscal

problems. Accordingly, OSM is

planning to examine this concept,

developing proposed specific

procedures for an open-ended grant

program and testing the procedures by

means of selected State programs before

making a final policy decision.

The existing § 886.14 includes a

reference to Section 405(f) of SMCRA,

relating to project information required

from applicants. Since § 886.14 is

revised to relate solely to budget

information, submission of information

relating to Section 405(f) now is

discussed in the preamble to § 886.16.

Section 886.14 is revised to reflect

that OSM will not require annual budget

estimates. This clarifies that States/

Indian tribes should no longer submit

site specific information to OSM as part
9976 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

of this process. The budget information

called for by this revision would

provide information that OSM needs to

formulate its own budget requests to

Congress. In addition, the deletion of

the word ‘‘administrative’’ is because

under the new procedures outlined in

this proposed rule, administrative grants

would no longer be separate grants.

Other changes to this section are

editorial in nature and are designed to

reflect existing OSM practice and

procedure.

Since no comments were received on

this section, it is adopted as proposed.

Section 886.15(c) is renumbered as

§ 886.15(a) and revised by replacing the

word ‘‘allocated’’ with ‘‘distributed’’ in

order to clarify that AML funds are

‘‘distributed’’ to States/Indian tribes

annually. See the discussion above of

proposed revisions to § 886.3. In

addition, the previous paragraphs

(c)(1)–(6), which refer to specific forms,

are deleted in favor of a generalized

instruction to use approved forms. This

change eliminates the need to amend

these regulations if there needs to be a

change in form requirements, e.g., when

a new Federal law is passed.

Section 886.15(a) is renumbered as

§ 886.15(b) and amended by revising

subsection (a) which allows OSM 90

days in which to act upon a grant

application. This amendment would

require OSM action on a grant

application within 60 days of submittal.

This change promotes the overall goal of

expediting the AML granting process.

In the interests of greater precision

and clarification, OSM has also made an

editorial change to the redesignated

Subsection 886.15(b) which eliminates

‘‘* * * act upon * * *’’ and substitutes

‘‘* * * approve or disapprove * * *’’.

The use of this language is consistent

with the wording of subsequent

sections.

One commenter stated that the prior

§ 886.15(a) provides that grants shall be

approved by the Director. The

commenter pointed out that under the

current system, grants are approved by

the Field Office Director. The

commenter asked whether this

regulatory language signals a change

from the current practice.

OSM has not changed the regulatory

language that provides authority to the

Director to approve grants to the States/

Indian tribes. OSM points out, however,

that the Director has formally delegated

this authority to the Field Office level.

Section 886.15(b), which has been

redesignated as § 886.15(c), gives OSM

30 days to approve or disapprove a

revised application, is revised to allow

OSM to treat the revised application as

an original. OSM would then have 60

days (under the new § 886.15(b)) to

approve or disapprove the application.

This change reflects OSM’s view that 30

days could be an insufficient amount of

time for it to evaluate revised

applications. OSM considers 60 days to

be a more realistic time frame in which

to execute this task.

Several commenters stated that in the

prior Subsection 886.15(b), OSM should

define what constitutes a minor revision

to the grant application. In their view,

these minor revisions should not start

the 60-day clock for OSM review and

approval. In addition, one commenter

provided the opinion that the 60-day

review and approval process should be

shortened to a period of 30 days.

OSM does not agree with these

comments. It does not believe that a 30-

day period provides sufficient time to

review and process grants and agree

upon specific details with States/Indian

tribes. Accordingly, OSM has not acted

upon that part of the comment to reduce

the grant processing time period.

Furthermore, because of the variation in

eligible grant activities and projects,

OSM does not believe that the States/

Indian tribes would be better served by

attempting to further define what is or

is not a ‘‘minor revision.’’ By trying to

list or define items that may or may not

occur, one assumes the risk of being

over or under inclusive in the class of

items described. This ultimately leads to

further administrative problems

between the States/Indian tribes and

OSM. The agency’s goal has been and

will continue to be to process all grant

applications within the 60-day period

contemplated by the regulations. Where

revisions are required and are submitted

accurately and timely by the States/

Indian tribes, OSM will attempt in good

faith either to meet or take action

quicker than the 60-day time period. It

must be understood, however, that if

there are time delays in obtaining the

necessary revisions, it may not be

possible in all cases to meet the 60-day

period. However, it is a goal that OSM

will continue to strive toward.

Section 886.15(d) is revised by

inserting the requirement that States/

Indian tribes comply with all Federal

laws in order to apply for grants under

this Part. The deletion of the reference

to OSM implementing regulations is

merely an editorial change.

Section 886.15(f) is removed because

the requirements of this subsection are

redundant. Specifically, the information

called for in this subsection is also

required when States/Indian tribes

submit reclamation plans for OSM

approval. See 30 CFR 884.13(c)(7).

Section 886.16 is amended to make

some editorial and substantive changes.

Specifically, § 886.16(a) is revised by

deleting reference to Director approval

of an agency’s grant application. This is

an editorial change; the deleted

language is superfluous in light of the

fact that a ‘‘grant agreement’’ is in fact

the document that represents approval

of the agency’s grant application.

Therefore, the existence of a grant

agreement denotes that OSM has in fact

approved the agency’s grant application.

Paragraph (3) of § 886.16(a) requires

that the grant agreement include project

specific amounts. This paragraph is

deleted in order to simplify the AML

granting process. Specifically, the

deletion of paragraph (a)(3) provides

that individual projects will no longer

be included in the grant agreement.

Instead, this information will be

submitted to OSM Field Offices on a

project-by-project basis before OSM

approves the expenditure of funds for

individual projects. Current provisions

of these regulations (See recordkeeping

and reporting requirements discussed in

§§ 886.23 and 886.24), combined with

the National Environmental Policy Act

(NEPA) compliance process discussed

in revised Subsection 886.16(d) below,

alleviate the need for approval of

specific project amounts in the grant

agreement.

Paragraph (a)(4) of § 886.16 requires

that the grant agreement include

allowable transfers of funds. Likewise,

paragraph (b) of 886.16 requires Director

approval of agency assignment of

functions and funds. Paragraph (a)(4) is

removed, and paragraph (b) is revised to

give the States/Indian tribes more

flexibility in administering their AML

grant monies. The revision to paragraph

(b) would alleviate the need for Director

approval prior to assignment by the

States/Indian tribes. In the view of

OSM, States/Indian tribes are in the best

position to dictate which entities are

better suited to carry out day-to-day

reclamation activities. With OSM

approval no longer necessary, paragraph

(a)(4) becomes irrelevant and is

therefore removed.

Section 886.16(c) is also deleted and

paragraph (d) is revised and renumbered

as paragraph (c) to reflect changes in the

procedures required to effectuate a grant

agreement between OSM and a State/

Indian tribe. This amendment reflects a

change in the technical administration

of the grant agreement process.

Specifically, this amendment requires

that the Director sign and transmit only

two copies of the grant agreement to the

agency, instead of the four required

prior to amendment. In addition, this

amendment changes the time period for

the agency to execute the grant from 3

weeks to 20 days. For purposes of this
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9977

section, the agency is now required to

sign the agreement and return it to OSM

within the 20-day period. Since the

grant, when signed by the Director,

would obligate funds, subsection (c)

states that failure of the State/Indian

tribe to execute the grant within 20 days

would result in a deobligation of the

total Federal grant amount. Thus, if the

signed agreement is not returned to

OSM by the close of business on the

20th day after the designated OSM

official signs it and OSM has not

granted an extension, OSM will initiate

deobligation procedures.

Several commenters have stated that

OSM should allow liberal extensions of

the 20-day period to execute a grant

agreement based upon reasonable

justification provided by the State/

Indian tribe. Otherwise, commenters

note, grantees could be faced with

automatic premature deobligations

simply because they are unable to

obtain the appropriate approvals and

authorizing signatures within the 20

calendar day period.

OSM has accepted this comment and

made a change in the language of

§ 886.16(c) to provide that an extension

of time may be approved verbally or in

writing by the individual delegated the

authority to sign grant agreements.

Specifically, the word ‘‘formally’’ has

been deleted to allow an oral or other

less formal mechanism of approval.

OSM notes that the States/Indian tribes

are the primary delivery mechanism for

the AML program. The actual signing of

the grant agreements is not a complex

matter; OSM will endeavor to continue

to keep it as uncomplicated as possible.

In addition, one commenter has

requested that the 20-day period of

§ 886.16(c) be lengthened to 45 days to

allow sufficient time to execute grant

agreements.

OSM has declined to extend the 20-

day period based upon experience over

the past decade that reflects that there

has been few if any problems

encountered by the involved parties in

meeting the specified time period.

New §§ 886.16(d) and 886.16(e) are

added to clarify that compliance with

NEPA is required before AML grant

funds may be used by the State/Indian

tribe and that a completed Form OSM–

76 must be submitted prior to the use

of funds for construction activities.

Currently, OSM grant procedure

requires NEPA compliance at the

construction grant award stage. Since

the issuance of a grant need not contain

authorization of expenditures for any

specific project, that action should not

require NEPA compliance. Instead,

NEPA compliance is deferred until the

State/Indian tribe requests authorization

to expend funds under the grant. The

actual initiation of each project is the

action that might have a significant

effect on the environment. Under these

procedures, NEPA documentation

would be developed as a normal part of

project planning rather than up front in

a grant application. Although OSM field

office approval would still be required

before the States/Indian tribes are

authorized to proceed with individual

projects, OSM believes that the overall

management of the grant by the States/

Indian tribes is enhanced by this action.

One commenter stated that

§ 886.16(d) should be revised to clarify

that the provisions of the National

Environmental Policy Act of 1969 apply

to coal AML projects only and not to

noncoal projects.

OSM disagrees with this comment.

NEPA applies to both coal and noncoal

projects. NEPA compliance must occur

for every project.

Prior to the time that authorization to

expend funds for construction activities

is requested, information specific to the

project is provided to the OSM field

office by the State/Indian tribe. The

required information is provided on the

Form OSM–76, Abandoned Mine Land

Problem Area Description (OMB No.

1029–0081). This information conforms

to that required in section 405(f) of

SMCRA.

Several commenters asked for

clarification on whether the filing of

Form OSM–76 with grant applications

applies to both coal and noncoal

projects. Commenters objected to having

to file a Form OSM–76 with noncoal

projects.

Although unfunded noncoal problem

areas/projects do not have to be

included in the AML inventory, if such

projects are funded, OSM is required

under section 403(c) of SMCRA to

establish procedures for, and to track,

accomplishments. This is being

implemented for all Title IV projects

through States/Indian tribes submitting

information on Form OSM–76.

It is noted that budgets are ‘‘revised’’

and grants are ‘‘amended.’’ Because of

the method of approving an AML grant,

a budget by itself is not required to be

revised. Thus, the title of Section 886.17

would be changed from ‘‘Grant and

budget revisions’’ to read ‘‘Grant

amendments.’’

Section 886.17 is amended by revising

paragraph (a)(1) which refers to OMB

Circular A–102. This editorial change

properly refers to the Grants

Management Common Rule. This

editorial change has been made

throughout this rule.

Paragraph (a)(2) of § 886.17, which

discusses events that trigger notification

requirements, is revised by deleting

subparagraphs (i) and (ii) and inserting

language specifying that notification is

necessary for changes that will result in

an extension of the grant period, or

require additional funds, or make a

budget transfer from administrative

costs to project costs or vice versa. This

revision eliminates the need to notify

OSM of project-specific changes, but

retains the mandates of the Grants

Management Common Rule. This

simplifies the grant process; OSM

would not require project-by-project

approval of State/Indian tribe AML

projects at the time of initial grant

approval. Thus, a grant amendment

would not be necessary merely due to

changes in individual projects that do

not effect the overall grant period,

funding, or cost category.

Several commenters stated that

§ 886.17(a)(2) should be revised to

clarify that budget transfers, from

administrative costs to project costs to

indirect costs and vice versa, require

notification only and do not require a

grant amendment.

OSM disagrees with the comments.

The Grants Management Common Rule,

(43 CFR part 12, subpart C.30(c)(3)),

requires that when a grant provides

funding for both construction and

nonconstruction activities, the grantee

must obtain prior written approval from

the awarding agency before making any

fund or budget transfers from

nonconstruction to construction or vice

versa. This requirement is being

implemented by the grantee formally

amending its approved budget.

Likewise, paragraphs (b)(1) and

subparagraphs (b)(3) (i)–(iii) of section

886.17, which require OSM approval for

budget revisions of $5,000 or 5 percent

of the grant amount, except in certain

enumerated circumstances, are removed

by these amendments. Thus, the

requirements in paragraphs (b)(1) and

(b)(3) (i)–(iii) of section 886.17 are

deleted in favor of the new instructions

in revised paragraph 886.17(a)(2). This

is a conforming change that is brought

about by the Grants Management

Common Rule and would codify

existing practices.

In addition, paragraph (b)(2) of

section 886.17 is revised to allow OSM

30 days, instead of the current 15 days,

in which to either approve or

disapprove the amendment. Paragraph

(b)(2) is redesignated as subsection (b).

The proposed 30-day time limit reflects

OSM’s evaluation of the time needed to

complete its review of the amendment.

In regard to paragraph 886.17(b)(2),

one commenter stated that they prefer

15 days instead of the specified 30-day
9978 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

period to approve or disapprove grant

amendments.

Based on past experience, OSM is of

the opinion that a 30-day period

provides a reasonable and sufficient

time to review and approve or

disapprove a grant amendment.

Accordingly, OSM has not acted upon

this comment and will endeavor to

process all grant amendments as quickly

as possible within the 30-day period

contemplated by the regulation.

Section 886.18, discussing conditions

for grant reduction, suspension, and

termination, is amended by revising

paragraph (a)(2) to make a minor

editorial change to the reference from 30

CFR 872.11(b)(2) to 30 CFR 872.11(b)(1)

and 872.11(b)(2). This is a conforming

change made necessary by rulemaking

to implement the AMRA, Pub. L. 101–

508.

In the interest of clarity, OSM has

decided to substitute the word

‘‘obligate’’ for ‘‘expend’’ in paragraph

886.18(a)(2). Paragraph 402(g)(1)(D) of

SMCRA uses the term ‘‘expended,’’ but

the term ‘‘obligate’’ is deemed to be a

more technically correct financial term

to reflect an irrevocable commitment of

funds by a grantee.

In regard to paragraph 886.18(a)(2),

one commenter observed that if a

grantee fails to expend distributed funds

within a 3-year grant period, those

funds will be expended by the Secretary

to accomplish the purposes of Title IV.

The commenter disagrees with this

section due to annual distribution

decreases and anticipated future

decreases due to the amendments to

SMCRA. The commenter feels that all

distributed funds should be utilized

only by the respective State/Indian tribe

for the purposes of Title IV.

Except for the editorial change

previously mentioned, OSM does not

believe that any changes should be

made to this regulation. Section

402(g)(1)(D) of SMCRA specifically

provides for the Secretary to use moneys

granted, but not expended, within 3

years after the grant award. Note

however, that even though the language

of this provision has not been modified,

OSM has always been able to work with

the States/Indian tribes on expending

appropriated funds.

Paragraph (a)(3) of section 886.18 is

also revised by specifying that certain

Indian tribes may receive reclamation

funds without having an approved

regulatory program. Under the 1987

amendments to SMCRA, the Crow,

Hopi, and Navajo Indian tribes do not

have an approved Title V program prior

to being eligible to receive AML funds.

See 30 U.S.C. 1235(k) (1988).

Subsection 886.18(b) is replaced by a

new subsection (b). The new subsection

(b) incorporates remedial measures

outlined in the Grants Management

Common Rule.

Also, the current subsection (b) is

revised and redesignated as subsection

(c). This new subsection (c) contains

editorial changes to indicate that the

‘‘OSM official delegated grant signature

authority’’ is the person who would give

notice of grant reduction, suspension, or

termination of a grant. In addition,

subsection (c) requires certified mail

transmittal of the required written

notice. Subsection (c) also adds a new

paragraph (7) that would incorporate the

concept of mutual termination of a grant

as outlined in the Grants Management

Common Rule.

Likewise, the current subsection

886.18(c) is redesignated as subsection

(d) and revised to clarify that State or

Tribal appeals of OSM decisions to

reduce, suspend, or terminate a grant

are evaluated to the Director of OSM.

This rule provides that the Director

would have 30 days from receipt to

decide the appeal. The Director’s

decision could then be appealed to the

Secretary.

These appeals would be processed in

accordance with existing OSM

procedures. OSM has elected not to

codify the details of this process since

the procedures may be amended as

necessary.

One commenter stated that, before

reduction or termination of a grant, the

grantee should be allowed to complete

the appeal process provided in

Subsection 886.18(d). Hence, paragraph

886.18(c)(2) should be revised to

provide for the initiation and

completion of the appeals process

before any final action is taken to reduce

or terminate a grant.

OSM accepts this comment and notes

that no regulatory language change is

required because the authority to appeal

a reduction, suspension or termination

of a grant exists in paragraph 886.18(d).

Under this paragraph the Director must

decide the appeal within 30 days of

receipt. Further, a grantee can then

appeal the Director’s decision to the

Secretary who also has 30 days to act

upon the appeal.

Section 886.19, which explains

requirements for an audit, is revised to

remove an outdated reference to OMB

Circular A–102.

Two commenters requested further

clarification of Section 886.19 by

incorporating appropriate reference to

specific published Office of

Management and Budget guidance.

In order to provide guidance to

grantees, OSM has revised section

886.19 to state that the agency shall

arrange for an independent audit

pursuant to guidance provided by the

General Accounting Office and the

Office of Management and Budget. This

revision is being done in a general

fashion because the applicable circulars

and other guidance documents could be

modified and/or combined in the future.

Section 886.20, which outlines

administrative procedures for agencies

under this Part, is revised by replacing

references to OMB Circular A–102 with

the Grants Management Common Rule.

This change will alleviate the need for

rulemaking to effectuate every minor

change in form requirements. No

comments were received on this section

which is adopted as proposed.

Section 886.21, outlining allowable

costs, is revised by deleting the work

‘‘project’’ in paragraph (a). As discussed

throughout this rulemaking, these

amendments eliminate certain project

specific grant procedures under the

AML program. The revision will have

little substantive effect since previous

grants, although containing projectspecific information, were for overall

reclamation activities.

One commenter has noted that

‘‘acquisition of land’’ is an allowable

cost. That commenter has stated that

OSM may want to clarify § 886.21(a) to

note that acquisition is limited to lands

affected by coal and noncoal mining,

i.e., does not include public facility

projects authorized under Section 411(f)

of SMCRA.

OSM has not made any change to

§ 886.21. This is a general provision that

addresses grants as a whole; if specific

limitations exist in Title IV of SMCRA,

those limitations would have to be

complied with as required.

Section 886.22(a) contains some

editorial changes in order to properly

reference the Grants Management

Common Rule. In addition, subsection

(d), mandating that drawdowns be made

by the agency as closely as possible to

the time of making disbursements, is

revised by requiring that when advances

are appropriate, they should be made as

closely as possible to the actual time of

disbursement. This change will reflect

current practice and procedure. No

comments were received on this section

which is thus adopted as proposed.

Section 886.23 is amended by

replacing the semi annual reporting

requirement with an annual reporting

requirement. In the view of OSM,

annual reporting is sufficient to ensure

proper Federal oversight. The AML

program has been in effect in most

States for over a decade. This change

represents the growing maturity of these
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9979

programs and the confidence that OSM

has in their management.

In order to maintain consistency in

the regulatory language, OSM is making

a technical change and thereby deleting

reference to ‘‘cooperative agreements’’

in § 886.23. The term ‘‘grant’’ as used in

this regulation includes financial

assistance in the form of grants and/or

cooperative agreements.

Several commenters stated their

support of the OSM proposal in

§ 886.23(a) to change the reporting

requirements to an annual cycle rather

than semi annual.

OSM agrees with the commenters that

this change will assist in reducing

administrative burdens on grantees and

recognizes the superior performance of

the States/Indian tribes in administering

their AML programs over the years.

In addition, existing paragraph (a) and

(b) are revised by deleting references to

specific form requirements. This is

accomplished by deleting a portion of

paragraph (a), all of paragraphs (a)(1)–

(2), and all of paragraph (b). In place of

these references to specific forms, this

amendment directs agencies to submit

reporting forms specified by OSM. This

change eliminates the need for

rulemaking procedures to amend these

regulations in every instance when form

requirements change. In addition, many

of the forms required by this section

anticipate the need for project-specific

information. In light of the changes that

are made by these amendments, specific

information no longer needs to be

submitted to OSM in advance. Some

project-specific information would be

provided to OSM at the time a grantee

requests approval for expenditures of

funds for individual projects.

Additional detailed information would

also be available in the grantee’s files.

A revised paragraph (b) is added to

§ 886.23 which requires, at the

completion of a grant, agency

submission of closeout reports as

specified by OSM. Specifically,

subsection (b) requires submission of

Form OSM–76 upon project completion.

This submission is necessary to comply

with the requirement in section 403(c)

of SMCRA that on a regular basis OSM

note on its inventory those projects

completed under Title IV.

Section 886.23(c) is deleted, since the

requirement to submit Form OSM–76

upon project completion is now

contained in revised subsection (b), as

noted above.

Several commenters observed that

§ 886.23(b) states that a completed Form

OSM–76 shall be submitted upon

project completion, not grant expiration.

Because of the 3-year limitation for

construction grants and the fact that

many projects may not begin until the

end of the first construction season due

to fiscal year constraints, some projects

may require funding from more than

one grant. Consequently, some projects

may not be completed when grant

closeout reports are due, and a Form

OSM–76 sent at that time would be

incomplete. Because of this situation,

the commenters suggest that OSM needs

to define ‘‘project completion’’ within

the framework of this section.

OSM agrees in part. However, the

term ‘‘project completion’’ refers to

when the actual construction/

reclamation work is completed. This

could involve more than one grant;

likewise, it means that if the

reclamation is completed at a site after

one year of the grant, the Form OSM–

76 is due at that time. This is necessary

to fulfill the mandate of Section 403(c)

requiring that the inventory be updated

annually with all completed projects.

Section 886.24 is amended by revising

subsection (a) which requires agencies

to keep records in accordance with

OMB Circular A–102. OSM is revising

this subsection to properly reference the

Grants Management Common Rule,

which supersedes Circular A–102 for

purposes of this Part.

Section 886.24(b), which mandates

certain recordkeeping requirements for

subgrantees and contractors, is deleted.

Designation of subsection (a) is removed

and paragraph (1) and (2) are

redesignated as subsections (a) and (b)

respectively. In OSM’s judgment, the

information called for by this subsection

would be redundant in light of the

requirements of the Grants Management

Common Rule.

No comments were received on this

section. This section is being adopted as

proposed.

OSM adds a new § 886.25 to simplify

the existing regulation by including

special Indian land procedures

(formerly part 888) in part 886.

New § 886.25(a) discusses the

Director’s authority to mitigate

emergencies or extreme dangers

resulting from past coal mining

practices and to perform other

reclamation on Indian lands not subject

to an approved reclamation program.

New § 886.25(b) is a conforming

change that would incorporate the

language of deleted subsection

888.11(a).

New § 886.25(c) is a conforming

change that would incorporate the

language of deleted subsection

888.11(b).

New § 886.25(d) is a conforming

change that would incorporate the

language of deleted subsection

888.11(c).

New § 886.25(e) is a conforming

change that would incorporate the

language of deleted subsection

888.11(d).

No comments were received on this

section, which is therefore adopted as

proposed.

Part 887—Subsidence Insurance

Program Grants

Section 887.3 discusses the Director’s

authority to approve or disapprove

grants for subsidence insurance up to a

total of $3 million in States with

approved reclamation plans. The

reference to section 402(g)(2) of SMCRA

is revised to properly reference section

402(g)(1) in light of the 1990

amendments to SMCRA. The reference

to § 872.11(b)(2) is changed to a more

general reference to § 872.11(b) in order

to reference some explanatory language

found in that paragraph.

Section 887.10 deals with information

collection requirements and their

submission to OMB for approval. The

collection of this information will not be

required until it has been approved by

OMB. OSM has revised and amended

this section by updating the data

contained in the section and including

the estimated reporting burden per

response for complying with the

information collection requirements.

The revision also provides the OSM and

OMB addresses where comments

regarding the information collection

requirements may be sent.

Section 887.11 discusses eligibility for

subsidence insurance program grants

under this Part. This section is revised

by making minor editorial changes. The

reference to § 872.11(b)(2) is changed to

a more general reference to § 872.11(b)

in order to reference some explanatory

language found in that paragraph. In

addition, the reference to SMCRA

section 402(g)(2) is revised to properly

reference section 402(g)(1) in light of the

1990 amendments to SMCRA.

Section 887.12 is amended by

replacing all references to OMB Circular

A–102 with references to the Grants

Management Common Rule. As

discussed above, this change reflects the

fact that the Grants Management

Common Rule supersedes OMB Circular

A–102 for the purposes of this Part.

In addition, § 887.12(b), which

specifies the contents of a grant

application under this Part, is revised by

adding a reference to the procedures of

30 CFR part 886. This amendment

advances the goal of simplifying the

AML grants process by providing a

uniform set of procedures for the grant

application process. The effect of this

amendment is to combine the process of

applying for reclamation grants under
9980 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

part 886 and for subsidence insurance

program grants under this Part.

Section 887.13 is amended by

replacing reference to OMB Circular A–

102 with reference to the Grants

Management Common Rule. As

discussed above, this change is made

throughout these amendments.

No comments were received in regard

to any of the above sections contained

in part 887, hence these sections are

adopted as proposed.

Part 888—Indian Reclamation Programs

OSM deletes part 888 and

incorporates its provisions into new

section 886.25. See the discussion of

proposed revisions of section 886.25

above. No comments were received

concerning this deletion.

III. Procedural Matters

Paperwork Reduction Act

The collections of information

contained in this rule have been

approved by the Office of Management

and Budget under 44 U.S.C. 3501 et seq.

and assigned clearance numbers 1029–

0059, 1029–0090, and 1029–0107.

Author

The principal author of this rule is

Norman J. Hess, Division of Abandoned

Mine Land Reclamation, Office of

Surface Mining Reclamation and

Enforcement, 1951 Constitution Avenue

NW., Washington, D.C. 20240;

Telephone: 202–208–2949.

Executive Order 12866

This rule has been reviewed under

Executive Order 12866.

Regulatory Flexibility Act

In accordance with the Regulatory

Flexibility Act, 5 U.S.C. et seq., the

Department of the Interior has

determined that this rule will not have

a significant economic effect on a

substantial number of small entities.

National Environmental Policy Act

OSM has prepared a final

environmental assessment (EA) of this

rule, and has made a finding that this

rule will not significantly affect the

quality of the human environment

under Section 102(2)(C) of NEPA, 42

U.S.C. 4332(2)(C). A finding of no

significant impact (FONSI), has been

approved for this final rule in

accordance with OSM procedures under

NEPA. The EA and FONSI are on file in

the OSM Administrative Record, room

660, 800 N. Capitol Street NW.,

Washington, DC.

Executive Order 12778 on Civil Justice

Reform

This rule has been reviewed under the

applicable standards of Section 2(b)(2)

of Executive Order 12778, Civil Justice

Reform (56 FR 55195). In general, the

requirements of Section 2(b)(2) of

Executive Order 12778 are covered by

the preamble discussion of this rule.

Additional remarks follow concerning

individual elements of the Executive

Order:

A. What is the preemptive effect, if

any, to be given to the regulation?

The rule specifies procedures for the

Federal grants program under Title IV of

SMCRA. This rule is not intended to

preempt State law except that to the

extent States wish to participate in the

program, they must comply with the

Federal rules.

B. What is the effect on existing

Federal law or regulations, if any,

including all provisions repealed or

modified?

This rule modifies the AML grant

process regulations pursuant to SMCRA

as described herein, and is not intended

to modify the rules or provisions of any

other Federal statute. The preceding

discussion of this rule specifies the

Federal regulatory provisions that are

affected by this rule.

C. Does the rule provide a clear and

certain legal standard for affected

conduct rather than a general standard,

while promoting simplification and

burden reduction?

The standards established by this rule

are as clear and certain as practicable,

given the complexity of the topics

covered and the mandates of SMCRA.

D. What is the retroactive effect, if

any, to be given to the regulation?

This rule is not intended to have

retroactive effect.

E. Are administrative proceedings

required before parties may file suit in

court? Which proceedings apply? Is the

exhaustion of administrative remedies

required?

No administrative proceedings are

required before parties may file suit in

court challenging the provisions of this

rule under Section 526(a) of SMCRA, 30

U.S.C. 1276(a). Prior to any judicial

challenge to the application of this rule,

however, administrative procedures

must be exhausted.

F. Does the rule define key terms,

either explicitly or by reference to other

regulations or statues that explicitly

define those items?

Terms that are important to the

understanding of this rule are set forth

in 30 CFR 870.5 and 887.5.

G. Does the rule address other

important issues affecting clarity and

general draftsmanship of regulations set

forth by the Attorney General, with the

concurrence of the Director of the Office

of Management and Budget, that are

determined to be in accordance with the

purposes of the Executive Order?

The Attorney General and the Director

of the Office of Management and Budget

have not issued any guidance on this

requirement.

List of Subjects

30 CFR Part 870

Reporting and recordkeeping

requirements, Surface mining,

Underground mining.

30 CFR Part 886

Grant programs—natural resources,

Reporting and recordkeeping

requirements, Surface mining,

Underground mining.

30 CFR Part 887

Grant programs—natural resources,

Insurance, Surface mining,

Underground mining.

30 CFR Part 888

Indian land, Surface mining,

Underground mining.

Dated: January 18, 1995.

Bob Armstrong,

Assistant Secretary—Land and Minerals

Management.

Accordingly, 30 CFR parts 870, 886,

887, and 888 are amended as set forth

below:

CHAPTER VII—OFFICE OF SURFACE

MINING RECLAMATION AND

ENFORCEMENT, DEPARTMENT OF THE

INTERIOR SUBCHAPTER R—ABANDONED

MINE LAND RECLAMATION

PART 870—ABANDONED MINE

RECLAMATION FUND—FEE

COLLECTION AND COAL

PRODUCTION REPORT

1. The authority citation for part 870

is revised to read as follows:

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

amended.

2. Section 870.5 is amended by

revising the definition of ‘‘Agency’’ to

read as follows:

§ 870.5 Definitions

* * * * *

Agency means the State agency

designated by the Governor, or in the

case of Indian tribes, the Tribal agency

designated by the equivalent head of an

Indian tribe, to administer the State/

Indian tribe reclamation program and to

receive and administer grants under this

part.

* * * * *
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9981

3. The heading of part 886 is revised

to read as follows:

PART 886—STATE AND TRIBAL

RECLAMATION GRANTS

4. The authority citation for part 886

is revised to read as follows:

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

amended.

5. Section 886.1 is revised to read as

follows:

§ 886.1 Scope.

This part sets forth procedures for

grants to States/Indian tribes having an

approved plan for the reclamation of

eligible lands and water and other

activities necessary to carry out the plan

as approved. OSM’s ‘‘Final Guidelines

for Reclamation Programs and Projects’’

(45 FR 14810–14819, March 6, 1980)

should be used as applicable.

6. Section 886.3 is revised to read as

follows:

§ 886.3 Authority.

The Director is authorized to approve

or disapprove applications for grants

under this part if the total amount of the

grants does not exceed the moneys

appropriated by the Congress. Such

moneys are distributed annually to the

States/Indian tribes.

7. Section 886.10 is revised to read as

follows:

§ 886.10 Information collection.

The collections of information

contained in 30 CFR part 886 have been

approved by the Office of Management

and Budget under 44 U.S.C. 3501 et seq.

and assigned clearance number 1029–

0059. The information will be collected

to meet the requirements of Section 405

of the Act, which allows the Secretary

to grant funds to States/Indian tribes

pursuant to Section 402(g) and which

are necessary to implement the State/

Indian tribe reclamation program. This

information will be used by the OSM to

ensure that the State/Indian tribe

complies with the Grants Management

Common Rule (43 CFR part 12, subpart

C) and sound principles of grants

management. The obligation to respond

is required to obtain a benefit in

accordance with Pub. L. 95–87. Public

reporting burden for this information is

estimated to average 4 hours per

response, including the time for

reviewing instructions, searching

existing data sources, gathering and

maintaining the data needed, and

completing and reviewing the collection

of information. Send comments

regarding this burden estimate or any

other aspect of this collection of

information, including suggestions for

reducing the burden, to the Office of

Surface Mining Reclamation and

Enforcement, Information Collection

Clearance Officer, 1951 Constitution

Avenue NW., Room 640 NC,

Washington, D.C. 20240; and the Office

of Management and Budget, Paperwork

Reduction Project (1029–0059),

Washington D.C. 20503.

8. Section 886.11 is revised to read as

follows:

§ 886.11 Eligibility for grants.

A State/Indian tribe is eligible for

grants under this part if it has a

reclamation plan approved under part

884 of this chapter.

9. Section 886.12 is amended by

revising paragraphs (a) and (b) to read

as follows:

§ 886.12 Coverage and amount of grants.

(a) An agency may use moneys

granted under this Part to administer the

approved reclamation program and to

carry out the specific reclamation

activities included in the plan and

described in the annual grant

agreement. The moneys may be used to

cover costs to the agency for services

and materials obtained from other State

and Federal agencies or local

jurisdictions according to OMB Circular

A–87.

(b) Grants shall be approved for

reclamation and eligible lands and

water in accordance with 30 U.S.C. 1234

and 1241 and 30 CFR 874.12, 875.12,

and 875.14, and in accordance with the

priorities stated in 30 U.S.C. 1233 and

1241 and 30 CFR 874.13 and 875.15. To

the extent technologically and

economically feasible, public facilities

that are planned, constructed, or

modified in whole or in part with

abandoned mine land grant funds

should use fuel other than petroleum or

natural gas.

* * * * *

10. Section 886.13 is revised to read

as follows:

§ 886.13 Grant period.

(a) The period for administrative costs

of the authorized agency should not

exceed the first year of the grant.

(b) The Director shall approve a grant

period on the basis of the information

contained in the grant application

showing that projects to be funded will

fulfill the objectives of 30 U.S.C. 1201

et seq.

11. Section 886.14 is revised to read

as follows:

§ 886.14 Annual submission of budget

information.

The agency shall cooperate with OSM

in the development of information for

use by the Director in the preparation of

his/her requests for appropriation of

moneys for reclamation grants. OSM

shall determine the schedule for

submitting this information on an

annual basis. Funds required to prepare

this submission may be included in the

grants under 30 CFR 886.12.

12. Section 886.15 is amended by

revising and redesignating paragraph (a)

as (b); by revising and redesignating

paragraph (b) as (c); by revising and

redesignating paragraph (c) as (a); by

revising paragraph (d); and by removing

paragraph (f) to read as follows:

§ 886.15 Grant application procedures.

(a) An agency shall use application

forms and procedures specified by

OSM. A preapplication is not required

if the total of the grant requested is

within the amounts distributed to the

State/Indian tribe annually by the

Director based on the Congressional

appropriation.

(b) OSM shall approve or disapprove

a grant application within 60 days of

receipt. If OSM approves an agency’s

grant application, a grant agreement

shall be prepared and signed by the

agency and the Director.

(c) If the application is not approved,

OSM shall inform the agency in writing

of the reasons for disapproval and may

propose modifications if appropriate.

The agency may resubmit the

application or appropriate revised

portions of the application. OSM shall

process the revised application as an

original application.

(d) The agency shall agree to perform

the grant in accordance with the Act,

applicable Federal laws and regulations,

and applicable OMB and Treasury

Circulars.

* * * * *

13. Section 886.16 is amended by

revising paragraphs (a) and (b); by

removing paragraph (c); by

redesignating paragraph (d) as (c); by

revising redesignated paragraph (c); by

redesignating paragraph (e) as (f); and by

adding new paragraphs (d) and (e) to

read as follows:

§ 886.16 Grant agreements.

(a) OSM shall prepare a grant

agreement that includes:

(1) A statement of the work to be

covered by the grant; and

(2) A statement of the approvals of

specific actions required under this

subchapter or the conditions to be met

before approvals can be given if moneys

are included in the grant for these

actions.

(b) The State/Indian tribe may assign

functions and funds to other Federal,

State, or local agencies. The grantee
9982 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

agency shall retain responsibility for

overall administration of that grant,

including use of funds and reporting.

(c) The Director shall sign two copies

of the agreement and transmit them

either by certified mail, return receipt

requested, or by hand delivery, to the

agency for countersignature. The grant

constitutes an obligation of Federal

funds at the time the Director signs the

agreement. The agency shall have 20

calendar days from the date of the

Director’s signature to execute the

agreement in order to accept its terms

and conditions. Unless an extension of

time is approved by the Director, failure

to execute the agreement within 20

calendar days shall result in an

immediate deobligation of the total

Federal grant amount.

(d) Although the funds are obligated

when the Director signs the agreement,

for any expenditure requiring

compliance with the National

Environmental Policy Act of 1969

(NEPA) (42 U.S.C. 4321 et seq.), funds

may not be used by the State/Indian

tribe until all actions necessary to

ensure compliance with NEPA are

taken.

(e) The agency shall submit a

completed Form OSM–76 (Abandoned

Mine Land Reclamation Problem Area

Description) showing proposed funding

for any planned non-emergency project

work to the applicable OSM field office

before it may use funds for construction

activities.

* * * * *

14. Section 886.17 is revised to read

as follows:

§ 886.17 Grant amendments.

(a) Grant amendments. (1) A grant

amendment is a written alteration of the

terms or conditions of the grant

agreement, whether accomplished on

the initiative of the agency or OSM. All

procedures for grant amendments shall

conform to those in 43 CFR part 12,

subpart C.

(2) The agency shall promptly notify

the Director, or the Director shall

promptly notify the agency, in writing

of events or proposed changes that may

require a grant amendment. The agency

shall notify the Director in advance of

changes that will result in an extension

of the grant period or require additional

funds, or when the agency plans to

make a budget transfer from

administrative costs to project costs or

vice versa.

(b) OSM shall either approve or

disapprove the amendment within 30

days of its receipt.

15. Section 886.18 is amended by

revising paragraphs (a)(2) and (a)(3); by

redesignating paragraphs (b) and (c) as

paragraphs (c) as (d) respectively; by

adding a new paragraph (b); and by

revising the newly redesignated

paragraphs (c) and (d) to read as follows:

§ 886.18 Grant reduction, suspension, and

termination.

(a) * * *

(2) If an agency fails to obligate

moneys distributed and granted within

three years from the date of grant award,

or within an extension granted under

§ 886.13 or § 886.17, OSM may reduce

the grant in accordance with § 872.11

(b)(1) and (b)(2) of this subchapter.

(3) If an agency fails to implement,

enforce, or maintain an approved State

regulatory program or any part thereof

and, as a result, the administration and

enforcement grant provided under part

735 of this chapter is terminated, OSM

shall terminate the grant awarded under

this part. This paragraph does not apply

to Indian tribes who receive reclamation

funds without having an approved

regulatory program.

* * * * *

(b) Remedies for noncompliance. If a

grantee or subgrantee materially fails to

comply with any term of an award,

whether stated in a Federal statute or

regulation, an assurance in a State plan

or application, a notice of award, or

elsewhere, OSM may take one or more

the following actions, as appropriate in

the circumstances:

(1) Temporarily withhold cash

payments pending correction of the

deficiency by the grantee or subgrantee;

(2) Disallow (that is, deny both use of

funds and matching credit for) all or

part of the cost of the activity or action

not in compliance;

(3) Wholly or partly suspend or

terminate the current award for the

grantee’s or subgrantee’s program;

(4) Withhold further grant awards for

the program; or

(5) Take other remedies that may be

legally available.

(c) Grant reduction, suspension, and

termination procedures. (1) The OSM

official delegated grant signature

authority shall give the agency at least

30 days written notice of intent to

reduce, suspend, or terminate a grant.

OSM must send this notice by certified

mail, return receipt requested. OSM

shall include in the notice the reasons

for the proposed action and the

proposed effective date of the action.

(2) OSM shall afford the agency

opportunity for consultation and

remedial action before reducing or

terminating a grant.

(3) The OSM official delegated grant

signature authority shall notify the

agency of the termination, suspension,

or reduction of the grant in writing by

certified mail, return receipt requested.

(4) Upon termination, the agency shall

refund or credit to the Fund that

remaining portion of the grant money

not encumbered. However, the agency

shall retain any portion of the grant that

is required to meet contractual

commitments made before the effective

date of termination.

(5) Upon receiving notification of

OSM’s intent to terminate the grant, the

agency shall not make any new

commitments without OSM’s approval.

(6) OSM may allow termination costs

as determined by applicable Federal

cost principles listed in Office of

Management and Budget Circular A–87.

(7) Either OSM or the agency may

terminate or reduce a grant if both

parties agree that continuing the

program would not produce beneficial

results commensurate with the further

expenditure of funds. Such a

termination for convenience shall be

handled as an amendment and shall be

signed by the OSM official delegated

grant signature authority.

(d) Appeals. (1) Within 30 days of

OSM’s decision to reduce, suspend, or

terminate a grant, the agency may

appeal the decision to the Director.

(i) The agency shall include in the

appeal a statement of the decision being

appealed and the facts that the agency

believes justify a reversal or

modification of the decision.

(ii) The Director shall decide the

appeal within 30 days of receipt.

(2) Within 30 days of the Director’s

decision to reduce, suspend, or

terminate a grant, the agency may

appeal the decision to the Secretary.

(i) The agency shall include in the

appeal a statement of the decision being

appealed and the facts that the agency

believes justify a reversal or

modification of the decision.

(ii) The Secretary shall act upon the

appeal within 30 days of receipt.

16. Section 886.19 is revised to read

as follows:

§ 886.19 Audit.

The agency shall arrange for an

independent audit pursuant to guidance

provided by the General Accounting

Office and the Office of Management

and Budget.

17. Section 886.20 is revised to read

as follows:

§ 886.20 Administrative procedures.

The agency shall follow

administrative procedures governing

accounting, payment, property, and

related requirements contained in 43

CFR part 12, subpart C and use the

property form specified by OSM and
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations 9983

approved by the Office of Management

and Budget.

18. Section 886.21 is amended by

revising paragraph (a) to read as follows:

§ 886.21 Allowable costs.

(a) Allowable reclamation costs

include actual costs of construction,

operation and maintenance, planning

and engineering, construction

inspection, other necessary

administrative costs, and up to 90

percent of the costs of the acquisition of

land.

* * * * *

19. Section 886.22 is amended by

revising paragraphs (a) and (d) to read

as follows:

§ 886.22 Financial management.

(a) The agency shall account for grant

funds in accordance with the

requirements of 43 CFR part 12, subpart

C. Accounting for grant funds must be

accurate and current.

* * * * *

(d) When advances are made, they

should be made as closely as possible to

the actual time of the disbursement.

* * * * *

20. Section 886.23 is revised to read

as follows:

§ 886.23 Reports.

(a) For each grant, the agency shall

annually submit to OSM reporting forms

specified by OSM.

(b) At the completion of each grant,

the agency shall submit a completed

Form OSM–76 and any other closeout

reports specified by OSM.

21. Section 886.24 is amended by

revising paragraph (a) and deleting its

designation as (a); revising paragraph

(a)(1) and redesignating as (a);

redesignating paragraph (a)(2) as (b);

and by removing the existing paragraph

(b) to read as follows:

§ 886.24 Records.

The agency shall maintain complete

records in accordance with 43 CFR part

12, subpart C. This includes, but is not

limited to, books, documents, maps, and

other evidence and accounting

procedures and practices sufficient to

reflect properly—

(a) The amount and disposition of all

assistance received for the program; and

(b) * * *

22. Section 886.25 is added to read as

follows:

§ 886.25 Special Indian lands procedures.

(a) This section applies to Indian

lands not subject to an approved Tribal

reclamation program. The Director is

authorized to mitigate emergency

situations or extreme danger situations

arising from past mining practices and

begin reclamation of other areas

determined to have high priority on

such lands.

(b) The Director is authorized to

receive proposals from Indian tribes for

projects that should be carried out on

Indian lands subject to this Section and

to carry out these projects under parts

872 through 882 of this chapter.

(c) For reclamation activities carried

out under this section on Indian lands,

the Director shall consult with the

Indian tribe and the Bureau of Indian

Affairs office having jurisdiction over

the Indian lands.

(d) If a proposal is made by an Indian

tribe and approved by the Director, the

Tribal governing body shall approve the

project plans. The costs of the project

may be charged against the money

allocated to OSM under § 872.11(b)(5).

(e) Approved projects may be carried

out directly by the Director or through

such arrangements as the Director may

make with the Bureau of Indian Affairs

or other agencies.

PART 887—SUBSIDENCE INSURANCE

PROGRAM GRANTS

23. The authority citation for part 887

is revised to read as follows:

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

24. Section 887.3 is revised to read as

follows:

§ 887.3 Authority.

The Director is authorized to approve

or disapprove applications for grants up

to a total amount of $3,000,000 for each

State with an approved State

reclamation plan provided moneys are

available under § 872.11(b) of this

chapter and Section 402(g)(1) of Pub. L.

95–87 (30 U.S.C. 1232).

25. Section 887.10 is revised to read

as follows:

§ 887.10 Information collection.

The collections of information

contained in 30 CFR part 887 have been

approved by the Office of Management

and Budget under 44 U.S.C. 3501 et

seq., and assigned clearance number

1029–0107. The information will be

used to grant funds to State regulatory

authorities and Indian tribes to

administer their subsidence insurance

program. Response is required to obtain

a benefit in accordance with 30 U.S.C.

1201 et seq. Public reporting burden for

this information is estimated to average

40 hours per response, including the

time for reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information. Send

comments regarding this burden

estimate or any other aspect of this

collection of information, including

suggestions for reducing the burden, to

the Office of Surface Mining

Reclamation and Enforcement,

Information Collection Clearance

Officer, 1951 Constitution Avenue,

N.W., Room 640 NC, Washington, D.C.

20240; and the Office of Management

and Budget, Paperwork Reduction

Project (1029–0107), Washington, D.C.

20503.

26. Section 887.11 is revised to read

as follows:

§ 887.11 Eligibility for grants.

A State is eligible for grants under this

part if it has a State reclamation plan

approved under part 884 of this chapter

and if it has funds available under

§ 872.11(b) of this chapter and Section

402(g)(1) of SMCRA, as amended, 30

U.S.C. 1232.

27. Section 887.12 is amended by

revising paragraph (a), the introductory

sentence of paragraph (b), and

paragraph (e) to read as follows:

§ 887.12 Coverage and amount of grants.

(a) An agency may use moneys

granted under this part to develop,

administer, and operate a subsidence

insurance program to insure private

property against damages caused by

subsidence resulting from underground

coal mining. The moneys may be used

to cover costs to the agency for services

and materials obtained from other State

and Federal agencies or local

jurisdictions according to OMB Circular

A–87. Moneys granted may be used to

cover capitalization requirements and

initial reserve requirements mandated

by applicable State law provided use of

such moneys is consistent with the

Grants Management Common Rule (43

CFR part 12, subpart C).

(b) The grant application shall be

submitted under the procedures of 30

CFR part 886 and contain the following:

* * * * *

(e) Insurance premiums shall be

considered program income and must

be used to further eligible subsidence

insurance program objectives in

accordance with 43 CFR part 12, subpart

C.

28. Section 887.13 is revised to read

as follows:

§ 887.13 Grant period.

The grant funding period shall not

exceed eight years from the time the

grant is approved by OSM. Unexpended

funds remaining at the end of any grant

period shall be returned according to

the 43 CFR part 12, subpart C.
9984 Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 / Rules and Regulations

PART 888—[REMOVED]

29. Part 888 is removed.

[FR Doc. 95–4259 Filed 2–21–95; 8:45 am]

BILLING CODE 4310–05–M