[Federal Register Volume 60, Number 35 (Wednesday, February 22, 1995)]
[Rules and Regulations]
[Pages 9974-9984]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4259]
[[Page 9973]]
_______________________________________________________________________
Part III
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Parts 870, 886, 887, and 888
Abandoned Mine Reclamation Grant Procedures; Final Rule
Federal Register / Vol. 60, No. 35 / Wednesday, February 22, 1995 /
Rules and Regulations
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[[Page 9974]]
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.
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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
life-threatening 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 Sec. 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.'' [[Page 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
Sec. 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. Sec. 1232), and moved these reclamation objectives
to the non-coal provisions in new SMCRA Section 411 (30 U.S.C.
Sec. 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. Secs. 1233 and 1239), of
SMCRA with a general reference to SMCRA.
OSM also has deleted paragraphs (b)(2) and (b)(3) of Sec. 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 open-ended 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 Sec. 886.14 includes a reference to Section 405(f) of
SMCRA, relating to project information required from applicants. Since
Sec. 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 Sec. 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
[[Page 9976]] 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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, Sec. 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 Sec. 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 Secs. 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 Sec. 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 [[Page 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
Sec. 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
Sec. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 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 [[Page 9978]] 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 project-
specific 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
Sec. 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 Sec. 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 [[Page 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec. 886.25 to simplify the existing regulation by
including special Indian land procedures (formerly part 888) in part
886.
New Sec. 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 Sec. 886.25(b) is a conforming change that would incorporate
the language of deleted subsection 888.11(a).
New Sec. 886.25(c) is a conforming change that would incorporate
the language of deleted subsection 888.11(b).
New Sec. 886.25(d) is a conforming change that would incorporate
the language of deleted subsection 888.11(c).
New Sec. 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
Sec. 872.11(b)(2) is changed to a more general reference to
Sec. 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 Sec. 872.11(b)(2) is changed to a
more general reference to Sec. 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, Sec. 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 [[Page 9980]] 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:
Sec. 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.
* * * * *
[[Page 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:
Sec. 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:
Sec. 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:
Sec. 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:
Sec. 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:
Sec. 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:
Sec. 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:
Sec. 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:
Sec. 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:
Sec. 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 [[Page 9982]] 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:
Sec. 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:
Sec. 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 Sec. 886.13 or Sec. 886.17, OSM may reduce the grant in
accordance with Sec. 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:
Sec. 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:
Sec. 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
[[Page 9983]] approved by the Office of Management and Budget.
18. Section 886.21 is amended by revising paragraph (a) to read as
follows:
Sec. 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:
Sec. 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:
Sec. 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:
Sec. 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:
Sec. 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 Sec. 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:
Sec. 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
Sec. 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:
Sec. 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:
Sec. 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 Sec. 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:
Sec. 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:
Sec. 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. [[Page 9984]]
PART 888--[REMOVED]
29. Part 888 is removed.
[FR Doc. 95-4259 Filed 2-21-95; 8:45 am]
BILLING CODE 4310-05-M
