[Federal Register Volume 78, Number 25 (Wednesday, February 6, 2013)]
[Proposed Rules]
[Pages 8821-8831]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-02589]



[[Page 8821]]

Vol. 78

Wednesday,

No. 25

February 6, 2013

Part IV





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement





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30 CFR Parts 700, 875, 879, et al.





Abandoned Mine Land Reclamation Program; Limited Liability for Noncoal 
Reclamation by Certified States and Indian Tribes; Proposed Rule

Federal Register / Vol. 78 , No. 25 / Wednesday, February 6, 2013 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 700, 875, 879, 884, and 885

[Docket ID: OSM-2012-0010]
RIN 1029-AC66


Abandoned Mine Land Reclamation Program; Limited Liability for 
Noncoal Reclamation by Certified States and Indian Tribes

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are proposing changes to our abandoned mine land (AML) 
reclamation program regulations under title IV of the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). If finalized, 
the changes would allow states and Indian tribes that have certified 
correction of all known coal AML problems within their jurisdiction to 
receive limited liability protection for certain noncoal reclamation 
activities.

DATES: Electronic or written comments: We will accept written comments 
on the proposed rule on or before April 8, 2013.
    Public hearings: If you wish to testify at a public hearing, you 
must submit a request before 4:30 p.m., Eastern Time, on March 8, 2013. 
We will hold a public hearing only if there is sufficient interest. 
Hearing arrangements, dates and times, if any, will be announced in a 
subsequent Federal Register notice. If you require reasonable 
accommodation to attend a public hearing, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT.

ADDRESSES: You may submit comments by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. The 
proposed rule has been assigned Docket ID: OSM-2012-0010. Please follow 
the online instructions for submitting comments.
    Mail/Hand-Delivery/Courier: Office of Surface Mining Reclamation 
and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution 
Avenue NW., Washington, DC 20240. Please include the Docket ID: OSM-
2012-0010.
    You may submit a request for a public hearing on the proposed rule 
to the person and address specified under FOR FURTHER INFORMATION 
CONTACT. If you require reasonable accommodation to attend a public 
hearing, please contact the person listed under FOR FURTHER INFORMATION 
CONTACT.

FOR FURTHER INFORMATION CONTACT: Alfred Whitehouse, Chief, Reclamation 
Support Division, 1951 Constitution Ave. NW., Washington, DC 20240; 
Telephone: 202-208-2788.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. How does the AML reclamation program operate?
II. What is the limited liability provision of SMCRA?
III. Why are we proposing rule changes related to the limited 
liability provision?
IV. How do we propose to revise our rules?
V. How do I submit comments on the proposed rule?
VI. Procedural Matters and Required Determinations

I. How does the AML reclamation program operate?

    Congress established the AML reclamation program in title IV of 
SMCRA to remedy the extensive environmental damage caused by past coal 
mining activities. In general, the program is targeted toward 
reclaiming abandoned mine lands and waters adversely impacted by 
inadequately reclaimed surface coal mining operations on lands that 
were not subject to the reclamation requirements of SMCRA. Health, 
safety, and environmental problems associated with abandoned mine lands 
include surface and ground water pollution, entrances to open mines, 
water-filled pits, unreclaimed or inadequately reclaimed refuse piles 
and minesites (including some with dangerous highwalls), sediment-
clogged streams, damage from landslides, and fumes and surface 
instability resulting from mine fires and burning coal refuse. 
Restoration activities under the abandoned mine reclamation program 
correct or mitigate these problems. While the central focus of the AML 
program has been to address coal-related health, safety and 
environmental problems, noncoal mining-related problems also are 
eligible to receive funding under certain conditions.
    A core element of the national AML program is the reclamation plan 
developed by each qualifying state and tribe. Under section 405(b) of 
SMCRA, states (and, after amendment of the Act in 1987, the Navajo, 
Hopi, and Crow Indian tribes) that have coal lands and waters eligible 
for reclamation under title IV of SMCRA may submit a proposed plan to 
OSM for review. If the proposed plan demonstrates that the state or 
tribe has qualifying lands and waters along with the necessary 
legislative authority and administrative components to adequately 
administer the program, we will approve the plan under section 405(d) 
of SMCRA. Currently, 25 states and the 3 Indian tribes have approved 
AML reclamation plans, which allows them to submit applications for 
grant funding under section 405(f) of SMCRA.
    During the first 30 years of the program, states and tribes with 
approved plans received grants and conducted reclamation activities to 
address AML-eligible problems. During this period, the states of 
Louisiana, Montana, Texas, and Wyoming and the Crow Tribe, the Hopi 
Tribe, and the Navajo Nation completed reclamation of all known coal-
related AML problems within their jurisdiction and certified to that 
fact in accordance with section 411(a) of SMCRA. Once certified, these 
states and tribes were authorized to expend title IV grant funding on 
the reclamation of qualifying noncoal AML problems and on the 
construction of public facility projects under the provisions of 
paragraphs (b) through (g) of section 411 of SMCRA. In particular, 
section 411(b) provides a formal structure for addressing noncoal 
problems though identification and prioritization.
    In contrast, uncertified states have generally focused on 
completing coal-related reclamation projects, although they also have 
the option to address noncoal problems in limited circumstances as 
provided under section 409 of SMCRA.
    In 2006, the Tax Relief and Health Care Act of 2006, Public Law 
109-432 (the ``2006 amendments'') substantially modified the AML 
reclamation program in title IV of SMCRA. The 2006 amendments altered 
AML fee collection rates on the industry, increased program funding, 
ended the appropriation process for AML grants to states and tribes, 
provided general Treasury revenues as a new source of funding, targeted 
funding in uncertified states more directly at addressing high priority 
coal-related AML problems, and made a number of procedural changes--
such as requiring OSM approval for revisions to the national inventory 
of AML problems. Please refer to the final rule published November 14, 
2008 (the ``2008 rule'') \1\ for a more complete description of the 
program changes resulting from the 2006 amendments.
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    \1\ 73 FR 67576-67647.
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    Prior to the 2006 amendments, section 402(g)(1) of SMCRA allocated 
50 percent of the total reclamation fees paid by coal mine operations 
located

[[Page 8823]]

within each state or tribe to that state or tribe. These allocations 
within the AML Fund are referred to as ``State share'' or ``Tribal 
share'' funds. However, distribution of the State share and Tribal 
share funds was subject to annual appropriation, and the full amount 
allocated each year was not always appropriated.
    Among other changes, the 2006 amendments barred certified states 
and tribes from receiving their State share and Tribal share moneys 
from the AML Fund.\2\ Under the 2006 amendments, instead of receiving 
moneys from the AML Fund, they receive two new types of funding--prior 
balance replacement funds and certified in lieu funds--paid from the 
general funds of the United States Treasury and not subject to annual 
appropriations. Prior balance replacement funds are authorized by 
section 411(h)(1) of SMCRA; they either have been or will be 
distributed in seven equal annual installments beginning in fiscal year 
2008.\3\ The total of the seven payments equals the difference between 
the amount of the State share or Tribal share that was allocated to 
each state or tribe and the amount that was actually appropriated 
before the 2006 amendments. Certified in lieu funds are authorized by 
section 411(h)(2) of SMCRA and are annual payments from the general 
funds of the United States Treasury in an amount equal to 50 percent of 
the reclamation fees paid by coal mining operations within each 
certified state or tribe.\4\
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    \2\ 30 U.S.C. 1231(f)(3)(B).
    \3\ 30 U.S.C. 1240a(h)(1).
    \4\ 30 U.S.C. 1240a(h)(2).
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    Our 2008 rule revised our regulations to conform to the 2006 
amendments. Of note, in accordance with the 2006 amendments, the 2008 
rule gave certified states and tribes greater latitude in how they are 
allowed to use the new funding that they receive. In particular, while 
certified programs are still required to address known and newly 
discovered coal problems in a timely manner, funding not needed to 
address coal problems may be used for a wider range of purposes than 
previously allowed, including purposes not related to noncoal 
reclamation or public facility projects under paragraphs (b) through 
(g) of section 411 of SMCRA.

II. What is the limited liability provision of SMCRA?

    On November 5, 1990, SMCRA was amended to extend fee collection 
authority and to revise both the way the AML Fund moneys are allocated 
and the purposes for which AML Fund moneys may be used. Among the many 
changes made to title IV at that time, a new section 405(l) was added, 
which specifies that no state or Indian tribe shall be liable under 
Federal law for any costs or damages as a result of any action or 
omitted action while carrying out an approved abandoned mine 
reclamation plan. The new paragraph applies to all Federal laws. It 
does not preclude liability for gross negligence or intentional 
misconduct by a state or Indian tribe. States and tribes value the 
protection provided by this provision because state and tribal program 
officials routinely make a broad range of decisions concerning site 
selection and abatement of serious health, safety, and environmental 
problems. The limited liability provision provides them a degree of 
protection as they make difficult choices with limited program funding.
    On May 31, 1994, we adopted 30 CFR 874.15 and 875.19 to implement 
section 405(l) of SMCRA.\5\ The language in the two sections is 
identical--30 CFR 874.15 applies to uncertified programs, while 30 CFR 
875.19 applies to certified programs.
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    \5\ 59 FR 28172.
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III. Why are we proposing rule changes related to the limited liability 
provision?

    We propose to revise our rules in response to concerns that our 
2008 rule may have created a disincentive for certified States and 
tribes to conduct noncoal reclamation activities. In the 2008 rule, we 
did not change the language of either 30 CFR 874.15 or 875.19. However, 
we did conclude that certified programs expending the two new sources 
of funding made available by the 2006 amendments under sections 
411(h)(1) and (h)(2) of SMCRA (prior balance replacement funding and 
certified in lieu funding, respectively) cannot conduct a noncoal 
reclamation program under paragraphs (b) through (g) of section 411 of 
SMCRA.\6\ As a consequence of this determination, any noncoal 
reclamation project would not be subject to the provisions of 30 CFR 
part 875, which includes the limited liability provision.
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    \6\ 73 FR 67611.
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    We received a number of comments on the application of the limited 
liability provision to certified programs during our 2008 rulemaking. 
The Interstate Mining Compact Commission (IMCC), the National 
Association of Abandoned Mine Land Programs (NAAMLP), and one state 
commented that ``certified AML programs should not be required to 
follow all of Part 875 to enjoy the protection of the limited liability 
provisions of Sec.  875.19.'' Since we adopted the 2008 rule, program 
officials in certified states and tribes have continued to express 
concern over the loss of limited liability protection for noncoal 
reclamation projects.\7\ This proposed rule is designed to address 
those concerns and restore limited liability protections for noncoal 
reclamation and public facility projects conducted pursuant to a SMCRA 
noncoal program and paragraphs (b) through (g) of section 411 of SMCRA.
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    \7\ See, e.g., Statement of Madeline Roanhorse, Manager, AML 
Reclamation/UMTRA Department, Navajo Nation On Behalf of the 
National Association of Abandoned Mine Land Programs re Oversight 
Hearing on ``The Effect of the President's FY 2013 Budget and 
Legislative Proposals for the Office of Surface Mining on Private 
Sector Job Creation, Domestic Energy Production, State Programs and 
Deficit Reduction'' before the House Energy and Mineral Resources 
Subcommittee, March 6, 2012, p. 7 (``Without this limited liability 
protection, these states and tribes potentially subject themselves 
to liability under the Clean Water Act and CERCLA for their AML 
reclamation work. Nothing in the 2006 Amendments suggested that 
there was a desire or intent to remove these liability protections, 
and without them in place, certified states and tribes will need to 
potentially reconsider at least some of their more critical AML 
projects.'').
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IV. How do we propose to revise our rules?

    We are proposing to revise our regulations to clarify that 
certified states and tribes, using prior balance replacement funds and 
certified in lieu funds, may voluntarily conduct noncoal reclamation 
programs under the provisions of 30 CFR subchapter R and receive 
limited liability protection for projects completed under those 
provisions. Our proposed revision would retain the ability of certified 
states or tribes to expend title IV moneys on projects that are not 
part of a SMCRA noncoal reclamation program, but they would not receive 
limited liability protection for work on those projects.
    SMCRA section 405(l) protects the states or tribes from liability 
``under any provision of Federal law for any costs or damages as a 
result of action taken or omitted in the course of carrying out a[n 
approved] State abandoned mine reclamation plan * * *.'' 30 U.S.C. 
1235(l). Under current regulations, certified states and tribes have 
very few SMCRA-related administrative duties when they conduct noncoal 
reclamation but they also do not receive limited liability protection 
for any of their work because that work is not considered to be part of 
a noncoal reclamation program conducted in accordance with an approved 
State abandoned mine reclamation plan. 30 CFR 875.19; see also 73 FR 
67613-67614. To afford

[[Page 8824]]

certified programs the protections of the limited liability provision 
at least in connection with some of their work, we propose to allow 
them the option of using their title IV moneys on SMCRA noncoal 
reclamation programs that will be part of an approved state abandoned 
mine reclamation plan; that is, on programs operating under paragraphs 
(b) through (g) of section 411 of SMCRA and that follow the 
requirements of 30 CFR subchapter R.
    Under such a noncoal reclamation program, limited liability 
protections would extend not only to site reclamation activities but 
also to program administration, site development, environmental 
management, and other actions taken and not taken in support of SMCRA 
noncoal reclamation activities. Because the protections only extend to 
``action taken or omitted in the course of carrying out'' an approved 
state or Indian tribe abandoned mine reclamation plan, there must be a 
clear nexus between the action or inaction and an approved state or 
abandoned mine reclamation plan for the protections to apply.
    In the 2008 rule, we concluded that certified programs could not 
conduct noncoal reclamation programs under 30 CFR part 875 using prior 
balance replacement funds or certified in lieu funds.\8\ The 2008 rule 
allowed certified states and tribes to use prior balance replacement 
funds for any purpose specified by the state legislature or tribal 
council under 30 CFR 872.31 and certified in lieu funds for any purpose 
under 30 CFR 872.34. However, we also determined that the 2006 
amendments did not authorize certified states and Indian tribes to use 
their title IV funding for projects conducted under paragraphs (b) 
through (g) of section 411 because those paragraphs specifically refer 
to the use of State share and Tribal share funds, which certified 
states and tribes no longer receive.
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    \8\ 73 FR 67610.
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    Although we adopted this approach in the 2008 rule, we recognized 
at the time that SMCRA was not clear and we considered possible 
alternatives. First, in our proposed rule that preceded the 2008 rule, 
we proposed that certified states and tribes could choose to use their 
title IV moneys for noncoal reclamation and public facility projects 
under 30 CFR part 875.\9\ Second, we presented an alternative that 
would have required certified states and tribes to spend their 
certified in lieu funds for noncoal reclamation and public facility 
projects under part 875.\10\
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    \9\ 73 FR 35236, June 20, 2008.
    \10\ 73 FR 35228, June 20, 2008.
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    We now propose an approach to the use of prior balance replacement 
funds and certified in lieu funds that is similar to the one we 
proposed in 2008--i.e., that certified states and tribes can choose to 
use their title IV moneys for noncoal reclamation and public facility 
projects under 30 CFR part 875. We do not believe that we need to amend 
the regulatory language in part 872 to effect this change--the current 
language is broad enough to allow certified states and tribes to expend 
their money on noncoal reclamation and public facility projects under 
30 CFR subchapter R if they choose to do so. We invite comment as to 
whether we need to make any modifications to part 872, particularly 
Sec. Sec.  872.31(a) and 872.34, to ensure that certified states and 
tribes receive limited liability protection for projects completed 
under a SMCRA noncoal program. Although we are not proposing changes to 
part 872, we are proposing revisions to other parts, as described 
further below.

A. How do we propose to revise 30 CFR Part 700: General?

1. Section 700.5: Definitions
    We propose to revise Sec.  700.5 to add a definition for the term 
``SMCRA'' to improve the clarity of existing regulations. The term 
``SMCRA'' means the Surface Mining Control and Reclamation Act of 1977 
(Pub. L. 95-87).

B. How do we propose to revise 30 CFR Part 875: Certification and 
Noncoal Reclamation?

    We propose to revise this part to clarify that certified states and 
tribes may voluntarily conduct noncoal reclamation programs under the 
provisions of 30 CFR subchapter R and receive limited liability 
protection for projects completed under those provisions. In general, 
our proposed revisions set forth the procedures that certified states 
and tribes would be required to follow if they voluntarily choose to 
use their title IV funding for a noncoal reclamation project or public 
facility project under SMCRA and 30 CFR subchapter R. These procedures 
relate to the eligibility of sites and restrictions related to land 
acquisition and management, lien determinations, and contractor 
eligibility. In addition, this part would make clear that certified 
states and Indian tribes would receive limited liability protection 
under 30 CFR 875.19 for authorized noncoal reclamation and supporting 
administrative and programmatic activities.
1. Section 875.11: Applicability
    We propose to revise Sec.  875.11(b)(2) to provide that under part 
875 certified programs may use prior balance replacement funds and 
certified in lieu funds not only to engage in coal reclamation projects 
that are necessary to maintain certification but also to conduct 
noncoal reclamation programs.
    During our previous rulemaking related to the 2006 amendments, we 
proposed similar language under Sec.  875.11(b)(2) that would have 
given certified states and Indian tribes the choice to expend prior 
balance replacement funds or certified in lieu moneys on noncoal 
reclamation programs under SMCRA.\11\ The majority of comments we 
received on this proposal were critical because certified states and 
tribes would have had to comply with the reclamation priorities for 
noncoal programs, which are set out in Sec.  875.15. According to 
commenters, this would have placed ``unsupported and illegal 
restraints'' on their use of prior balance replacement funds and 
certified in lieu funds. The commenters recommended that the proposed 
language be revised to ensure that certified states and Indian tribes 
did not have to comply with all the provisions of part 875 and to 
clarify that certified states and tribe can elect to do noncoal 
reclamation outside the framework of that part.
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    \11\ 73 FR 35259, June 20, 2008.
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    Based on these comments and upon further analysis of our approach, 
the final rule implementing the 2006 amendments did not carry forward 
the option in proposed Sec.  875.11(b)(2) that would have allowed 
certified states and Indian tribes the choice to expend prior balance 
replacement funds and certified in lieu funds on noncoal reclamation 
programs under SMCRA. Thus, the existing rule only requires certified 
states and tribes to follow part 875 when they expend prior balance 
replacement funds and certified in lieu funds on coal reclamation 
necessary to maintain their certification. In other words, certified 
states and tribes are no longer required to follow part 875 if they use 
their title IV funding for noncoal reclamation and public facility 
projects because we determined that those projects would not be 
completed under SMCRA and its regulations.
    In this proposed rule, we are reexamining our 2008 decision on this 
topic. We are considering giving certified states and tribes the choice 
to

[[Page 8825]]

use their title IV moneys under a SMCRA noncoal program under part 875. 
We believe this proposed rule would be consistent with section 
411(h)(1) of SMCRA, which grants the state legislatures and tribal 
councils discretion as to how prior balance replacement funds may be 
spent because the state legislature or tribal council could direct 
these funds to be expended pursuant to a SMCRA noncoal program. In 
addition, we believe that optional coverage would be consistent with 
section 411(h)(2) of SMCRA, which contains no specific instruction on 
the use of certified in lieu funds and does not place any restrictions 
upon them. Therefore, under the proposed rule, certified states and 
tribes would be able to direct, if they so choose, some or all of these 
funds to be used for a SMCRA noncoal reclamation program consistent 
with section 411 of SMCRA and 30 CFR part 875. This approach would also 
be consistent with our view that states and tribes may use these funds 
for coal reclamation to maintain certification, a use also not 
explicitly contained in either paragraph (h)(1) or paragraph (h)(2) of 
section 411 of SMCRA.
    Finally, by allowing certified states and tribes the latitude to 
conduct activities under 30 CFR part 875, we would continue to promote 
the AML reclamation plan as a central component of noncoal reclamation. 
Under paragraphs (b) through (g) of section 405 of SMCRA, states and 
tribes may receive title IV grants only when they have received program 
approval based upon a complete reclamation plan. Certified states and 
tribes have approved reclamation plans, and they operate under and 
maintain these approved plans in order to receive title IV funding. 
Reclamation activities carried out pursuant to a SMCRA noncoal program 
would enjoy the limited liability protections of section 405(l) of 
SMCRA because the work would be conducted pursuant to an approved 
reclamation plan that conforms to paragraph (e) and (f) of section 405 
of SMCRA.
2. Section 875.16: Exclusion of Certain Noncoal Reclamation Sites
    We propose to revise this section to prohibit the reclamation of 
sites designated for remedial action under the Uranium Mill Tailings 
Radiation Control Act of 1978 (UMTRCA) \12\ or listed for remedial 
action under the Comprehensive Environmental Response Compensation and 
Liability Act of 1980 (CERCLA) \13\ by certified states or tribes using 
prior balance replacement funds or certified in lieu funds if they 
conduct the reclamation as a component of a voluntary noncoal 
reclamation program under Part 875. SMCRA clearly prohibits ``[s]ites 
and areas designated for remedial action pursuant to [UMTRCA] or which 
have been listed for remedial action pursuant to [CERCLA]'' from being 
``eligible from expenditures from the Fund under'' section 411 of 
SMCRA.\14\
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    \12\ 42 U.S.C. 7901 et seq.
    \13\ 42 U.S.C. 9601 et seq.
    \14\ 30 U.S.C. 1240a(d).
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    In the 2008 rule, one modification we made to this provision was to 
explicitly allow certified states and Indian tribes to expend their 
title IV moneys for UMTRCA and CERCLA sites so as to be consistent with 
our changes in 30 CFR part 872 that allowed these states and Indian 
tribes maximum flexibility to expend their prior balance replacement 
funds and certified in lieu funds.
    Our proposed revision to 30 CFR 875.16(b) would continue to 
prohibit a certified state or Indian tribe from expending money left 
over from the pre-2008 distributions of funds from section 402(g)(1) on 
UMTRCA and CERCLA sites. The section would be revised to prohibit the 
expenditure of prior balance replacement funds and certified in lieu 
funds for UMTRCA and CERCLA sites if the state or tribe chooses to 
conduct a SMCRA noncoal program. However, our proposed revision would 
also retain the ability of a certified state or tribe to expend title 
IV moneys on UMTRCA and CERCLA sites if those projects are completed 
outside the scope of a SMCRA noncoal reclamation program. In such an 
instance, the certified state or tribe would not receive limited 
liability coverage under SMCRA.
3. Section 875.17: Land Acquisition Authority--Noncoal
    Consistent with our proposal to allow certified programs to 
voluntarily use prior balance replacement funds and certified in lieu 
funds to conduct a noncoal reclamation program under part 875, we 
propose to revise this section to confirm that the requirements 
specified in parts 877 (Rights of Entry) and 879 (Acquisition, 
Management and Disposition of Lands and Water) also apply to a state's 
or tribe's SMCRA noncoal program conducted voluntarily under part 875.
4. Section 875.19: Limited Liability
    We propose to revise this section to clarify that no certified 
state or Indian tribe conducting noncoal reclamation activities under 
the provisions of part 875 is liable under any provision of Federal law 
for any costs or damages as a result of action taken or omitted in the 
course of carrying out an approved state or Indian tribe abandoned mine 
reclamation plan.
    In our 2008 rule, we did not revise this section, but we did note 
that under the proposed rule, the only scenario in which a certified 
state or Indian tribe could avail itself of the limited liability 
provision of Sec.  875.19 would be if it decided to maintain a noncoal 
reclamation program under section 411 of SMCRA. As previously 
discussed, we did not select our proposed approach at that time. Under 
the approach we adopted in the 2008 rule, we concluded that because 
prior balance replacement funds and certified in lieu funds could not 
be used to fund a noncoal reclamation program under SMCRA, section 
405(l) of the Act did not support an interpretation that limited 
liability protection extends to noncoal reclamation programs that are 
not conducted under title IV of SMCRA.
    Our current proposal is consistent with the approach we proposed, 
but did not adopt, in 2008. It is also consistent with section 405(l) 
of SMCRA, as this section would not preclude liability for costs or 
damages as a result of gross negligence or intentional misconduct by 
the state or Indian tribe that is carrying out a SMCRA noncoal program 
in accordance with its approved reclamation plan.
5. Section 875.20: Contractor Eligibility
    We propose to revise this section to clarify that certified states 
and tribes that voluntarily conduct noncoal reclamation activities 
under part 875 must comply with the contractor eligibility 
requirements. This section also applies to certified states and tribes 
that conduct coal reclamation to maintain certification.

C. How do we propose to revise 30 CFR Part 879: Acquisition, 
Management, and Disposition of Lands and Water?

    Because this proposed rule modifies part 875 to allow certified 
states and tribes to voluntarily conduct noncoal reclamation activities 
under SMCRA, we are proposing changes to part 879 so that our 
procedures related to acquisition, management, and disposition of land 
and water are consistent with this option. In general, with this 
proposed rule, certified states and Indian tribes that voluntarily 
conduct noncoal reclamation activities under part 875 would be required 
to follow the provisions of part 879. To ensure that any moneys 
received from

[[Page 8826]]

the disposition of lands and waters are returned to the reclamation 
program, we also propose to revise Sec.  879.15 to specify that all 
moneys received by a certified state or tribe in the context of the 
noncoal reclamation program must be handled in accordance with Sec.  
885.19.
1. Section 879.1: Scope
    We propose to revise this section to clarify its applicability to 
certified states and tribes that choose to conduct noncoal reclamation 
activities under part 875.
2. Section 879.11: Land Eligible for Acquisition
    We propose to revise Sec.  879.11(a) and 879.11(b) to clarify that 
these sections apply to a certified state or Indian tribe that chooses 
to conduct noncoal reclamation activities under part 875. In addition, 
as we reviewed our regulations to implement this proposed rule, we 
determined that existing Sec.  879.11 was not as clear as we intended, 
and we propose to restructure Sec.  875.11(a) to confirm that OSM must 
execute a written approval and make the findings required by Sec.  
875.11(a)(1) and 875.11(a)(2) when we acquire land.
3. Section 879.15: Disposition of Reclaimed Land
    We propose to revise Sec.  879.15(h) to specify that moneys 
received from disposal of land by certified states and tribes 
conducting a SMCRA noncoal reclamation program under part 875 must be 
handled as unused funds in accordance with Sec.  885.19.

D. How do we propose to revise 30 CFR part 884: State Reclamation 
Plans?

    We propose to revise part 884 to specify the contents of a proposed 
reclamation plan for certified states and Indian tribes. In our 2008 
rule, we revised Sec.  884.13 to reflect the view that the contents of 
a reclamation plan for a certified program should be very limited 
because certified programs would largely be expending the two new 
sources of funding outside of the parameters of the part 875 noncoal 
reclamation requirements. Specifically, our 2008 rule established that 
a reclamation plan for a certified program was only required to contain 
two components; the Governor's designation under Sec.  884.13(a) and a 
commitment to address coal problems in accordance with Sec. Sec.  
875.13(a)(3) and 875.14(b).
    In this proposed rule, we are revisiting our decision in the 2008 
rule and proposing to revise Sec.  884.13 to require that, if certified 
programs maintain reclamation plans, those plans must contain all of 
the components of Sec.  884.13(a) through (f)--instead of just the two 
aforementioned components. This change would be consistent with our 
position that to acquire the limited liability protections under 
section 405(l) of SMCRA, certified states and Indian tribes must 
conduct reclamation activities pursuant to an approved reclamation plan 
that conforms to paragraphs (e) and (f) of section 405. We believe that 
maintenance of a reclamation plan that fully conforms to paragraphs (e) 
and (f) of section 405 would ensure that a certified program has all of 
the necessary legal, administrative, and procedural components to 
conduct coal reclamation under part 874, to conduct noncoal reclamation 
under part 875, and to gain the limited liability protections under 
section 405(l) of SMCRA.
1. Section 884.13: Content of Proposed State Reclamation Plan
    As discussed above, we propose to revise this section to clarify 
that the reclamation plan for a certified program must contain all of 
the information identified in the section as well as a commitment to 
address eligible coal problems found or occurring after certification 
as required in Sec. Sec.  875.13(a)(3) and 875.14(b). The revision 
would ensure that reclamation plans for certified programs will contain 
all of the necessary legal, administrative, and procedural components 
to conduct coal reclamation to maintain certification and to conduct 
voluntary noncoal reclamation activities under part 875.

E. How do we propose to revise 30 CFR part 885: Grants to Certified 
States and Indian Tribes?

    We are proposing changes in this part consistent with our proposal 
that certified states and tribes may voluntarily use prior balance 
replacement funds and certified in lieu funds for noncoal reclamation 
under part 875.
    To implement our proposal, we would need to revise several 
regulations in this part to ensure that certain grants management and 
programmatic activities are conducted properly. In particular, we 
propose to revise Sec.  885.12 to expand the list of activities 
eligible for certified program funding, and we are proposing revisions 
to Sec.  885.16 in order to ensure that the appropriate project 
authorization and environmental reviews are conducted for voluntary 
noncoal reclamation under part 875. Finally, we propose to revise Sec.  
885.20 to ensure that we receive the necessary grant information and 
project reporting for voluntary noncoal reclamation under part 875.
1. Section 885.12: What can I use grant funds for?
    We propose to revise Sec.  885.12(b) to clarify that certified 
programs may use prior balance replacement funds and certified in lieu 
funds for noncoal reclamation under section 411 of SMCRA and part 875.
2. Section 885.16: After OSM approves my grant, what responsibilities 
do I have?
    We propose to revise Sec.  885.16(e) to ensure that certified 
programs that use prior balance replacement funds and certified in lieu 
funds for noncoal reclamation under part 875 receive a written 
authorization to proceed with reclamation on individual projects. Our 
authorization to proceed denotes that both the certified program and 
OSM have taken all actions necessary to ensure compliance with the 
National Environmental Policy Act of 1969 (NEPA),\15\ and any other 
applicable laws, clearances, permits, or requirements.
---------------------------------------------------------------------------

    \15\ 42 U.S.C. 4321 et seq.
---------------------------------------------------------------------------

    To receive an authorization to proceed from us, a certified state 
or tribe would be required to follow its approved reclamation plan and 
conduct administrative and noncoal site development reclamation 
activities within the regulatory structure provided by 30 CFR 
subchapter R. Requesting an authorization to proceed from us would be a 
voluntary action on the part of the certified state or tribe. If we 
issue an authorization to proceed, the certified state or tribe would 
qualify for the limited liability protections for that project, 
including the administrative and programmatic activities directly 
related to that project. Because certified states and Indian tribes 
would not be required under this proposed rule to expend their title IV 
moneys under a SMCRA noncoal program, it would be possible for a 
certified state or Indian tribe to complete noncoal reclamation or 
public facility projects outside the parameters of a SMCRA noncoal 
reclamation program, including projects at CERCLA or UNTRCA sites as 
provided by other laws. If a certified state or tribe conducts noncoal 
reclamation activities outside SMCRA, it would not need to request an 
authorization to proceed from us, and it would not receive limited 
liability protection for that project.
    Requests for authorizations to proceed would be required to contain 
the information needed for us to complete

[[Page 8827]]

our review requirements and meet applicable deadlines. Any noncoal 
reclamation project proposal submitted to us would be required to be 
consistent with 30 CFR subchapter R and the approved state reclamation 
plan, and it would be required to be submitted well in advance of any 
planned construction so as to allow adequate time for review, including 
a NEPA review in order to fully consider reasonable alternatives.
    Certified states and tribes have many years of experience 
developing noncoal projects with moneys from the AML Fund. As with 
those projects, submissions for sites to be reclaimed as noncoal 
reclamation projects with prior balance replacement funding and 
certified in lieu funding would be required to comply with the 
requirements of program-related environmental reviews and satisfy AML 
grant and administrative components. These review elements would 
include, but would not be limited to, information sufficient for the 
conduct of assessments under NEPA, the Endangered Species Act, National 
Historic Preservation Act, and the Clean Water Act. In addition, we 
would review proposals and conduct oversight activities as needed to 
ensure that our program requirements related to site eligibility, 
grants management, and AML Inventory management are met. Proposals that 
receive our approval as noncoal reclamation projects would be required 
to be implemented consistent with the scope of work we approve, and we 
would be required to review changes in project scope or activities that 
would materially alter the environmental consequences of the 
reclamation. Generally, noncoal reclamation projects conducted with 
prior balance replacement funds or certified in lieu funds would be 
required to adhere to the development, review, and approval components 
we currently rely on for AML coal sites being addressed to maintain 
certification.
3. Section 885.20: What must I report?
    We propose to revise Sec.  885.20 to clarify that certified 
programs using prior balance replacement funds and certified in lieu 
funds for noncoal reclamation under part 875 would be required to 
update the AML inventory for each noncoal reclamation project as it is 
funded.

V. How do I submit comments on the proposed rule?

General Guidance

    We will review and consider all comments submitted to the addresses 
listed above (see ADDRESSES) by the close of the comment period (see 
DATES). The most helpful comments and the ones most likely to influence 
the final rule are those that include citations to and analyses of 
SMCRA, its legislative history, its implementing regulations, case law, 
other pertinent federal laws or regulations, technical literature, or 
other relevant publications and those that involve personal experience. 
Your comments should reference a specific portion of the proposed rule 
or preamble, be confined to issues pertinent to the proposed rule, 
explain the reason for any recommended change or objection, and include 
supporting data when appropriate.
    Please include the Docket ID ``OSM-2012-0010'' at the beginning of 
all written comments. We cannot ensure that comments received after the 
close of the comment period (see DATES) or at locations other than 
those listed above (see ADDRESSES) will be included in the docket for 
this rulemaking or considered in the development of a final rule.

Public Availability of Comments

    Before including your address, phone number, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--may be 
made publicly available at any time. While you can ask us in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so.

Public Hearings

    We will hold a public hearing on the proposed rule only if there is 
sufficient interest to do so. We will announce the time, date, and 
address for any hearings in the Federal Register at least 7 days before 
the hearing.
    If you wish to testify at a hearing, please contact the person 
listed in FOR FURTHER INFORMATION CONTACT, either orally or in writing, 
by 4:30 p.m., Eastern Time, on March 8, 2013. If no one expresses an 
interest in testifying at a hearing by that date, we will not hold a 
hearing. If only a limited number of people express an interest, we 
will hold a public meeting or teleconference rather than a hearing. We 
will place a summary of the public hearing in the docket for this 
rulemaking.
    If a public hearing is held, it will continue on the specified date 
until all persons scheduled to speak have been heard. If you are in the 
audience and have not been scheduled to speak but wish to do so, you 
will be allowed to testify after the scheduled speakers. We will end 
the hearing after all persons scheduled to speak and persons present in 
the audience who wish to speak have been heard. To assist the 
transcriber and ensure an accurate record, we request, if possible, 
that each person who testifies at a public hearing provide us with a 
written copy of his or her testimony.

Public Meeting or Teleconference

    We may hold a public meeting, in person or by teleconference, in 
place of a public hearing if there is only limited interest in a 
hearing. If you wish to meet with us to discuss the proposed rule, you 
may request a meeting by contacting the person listed under FOR FURTHER 
INFORMATION CONTACT. All meetings will be open to the public, and, if 
appropriate, we will post a notice of the meetings. We will include a 
written summary of the meeting in the docket for this rulemaking.

VI. Procedural Matters and Required Determinations.

A. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. OIRA has 
determined that this proposed rule is not significant.
    Executive Order 13563 reaffirms the principles of Executive Order 
12866 while calling for improvements in the nation's regulatory system 
to promote predictability, to reduce uncertainty, and to use the best, 
most innovative, and least burdensome tools for achieving regulatory 
ends. The executive order directs agencies to consider regulatory 
approaches that reduce burdens and maintain flexibility and freedom of 
choice for the public where these approaches are relevant, feasible, 
and consistent with regulatory objectives. Executive Order 13563 
emphasizes further that regulations must be based on the best available 
science and that the rulemaking process must allow for public 
participation and an open exchange of ideas. We have developed this 
proposed rule in a manner consistent with these requirements.
    At the time of this rulemaking, there are a total of seven 
certified states and tribes who would be affected by this proposed 
change. As previously discussed, the rulemaking would remove a 
disincentive for certified states and tribes to undertake noncoal 
reclamation. We estimate that, if the proposed rule is adopted, 
approximately 30 to 60 additional noncoal reclamation projects would be 
covered by SMCRA's limited liability provision each year. We do not 
anticipate any additional costs to

[[Page 8828]]

the certified states and tribes because this proposed rule creates a 
voluntary opportunity to redirect existing grant funds to noncoal 
reclamation under 30 CFR part 875 to obtain the limited liability 
protections of Sec.  875.19. By offering the incentive of limited 
liability coverage, the rule should result in more noncoal reclamation 
projects being undertaken. Increased reclamation would improve the 
quality of the human environment and eliminate hazardous conditions 
while improving water quality, air quality, wildlife habitat, community 
aesthetics, and the visual landscape.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed rule 
will not have a significant economic effect on a substantial number of 
small entities under the Regulatory Flexibility Act (RFA).\16\ The 
proposed revisions would not be expected to have an significant adverse 
economic impact on the regulated community, including small entities. 
As previously stated that rule would affect the states of Louisiana, 
Montana, Texas, and Wyoming and the Crow Tribe, the Hopi Tribe, and the 
Navajo Nation.
---------------------------------------------------------------------------

    \16\ 5 U.S.C. 601 et seq.
---------------------------------------------------------------------------

C. Small Business Regulatory Enforcement Fairness Act

    This proposed rule is not a major rule under the Small Business 
Regulatory Enforcement Fairness Act.\17\ For the reasons previously 
discussed, the proposed rule would not--
---------------------------------------------------------------------------

    \17\ 5 U.S.C. 804(2).
---------------------------------------------------------------------------

    a. Have an annual effect on the economy of $100 million or more.
    b. Cause a major increase in costs or prices for consumers, 
individual industries; federal, state, or local government agencies; or 
geographic regions.
    c. Have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises.

D. Unfunded Mandates

    This proposed rule would not impose an unfunded mandate on state, 
local, or tribal governments or the private sector of more than $100 
million per year. The rule would not have a significant or unique 
effect on state, tribal, or local governments or the private sector. A 
statement containing the information required by the Unfunded Mandates 
Reform Act \18\ is not required.
---------------------------------------------------------------------------

    \18\ 2 U.S.C. 1534.
---------------------------------------------------------------------------

E. Executive Order 12630--Takings

    The proposed rule would not have significant takings implications 
because it is not a governmental action capable of interference with 
constitutionally protected property rights. A takings implication 
assessment is not required.

F. Executive Order 13132--Federalism

    This proposed rule would not alter or affect the relationship 
between states and the Federal Government. Therefore, the proposed rule 
would not have significant Federalism implications. Consequently, there 
is no need to prepare a Federalism assessment.

G. Executive Order 12988--Civil Justice Reform

    The Office of the Solicitor for the Department of the Interior has 
determined that this proposed rule would not unduly burden the judicial 
system and that it meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order.

H. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian Tribes 
and have determined that the proposed revisions would not have 
substantial direct effects on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes. 
Indian Tribe representatives were invited to consult with OSM on our 
intention to propose a rule extending section 405(l) limited liability 
protections. In response to a request for consultation, we met with 
Indian tribe program representatives from the Hopi and Navajo nations 
on July 10, 2012, at Kykotsmovi, Arizona. The Crow Tribe did not 
request consultation.
    During the consultation with the Hopi and the Navajo Nations, the 
Tribes stated that they would like the proposed rule to allow a Tribe 
with an approved AML program to be able to request limited liability 
protection for some projects but to decline it for others. Our proposed 
rule reflects this optional approach. As proposed, the rule would allow 
a certified State or Indian Tribe to request OSM approval for specific 
noncoal and public facility projects that conform to the reclamation 
provisions of section 411(b) through (g) of SMCRA and 30 CFR part 875.
    The Tribes also indicated that they would prefer that the limited 
liability protections apply to all projects, including public facility 
projects, and that OSM should be involved in the NEPA process because 
OSM understands the projects and can move quickly through the approval 
process. Our proposed rule would allow public facility projects to 
receive limited liability if the Tribe chooses to conform to the 
reclamation provisions of section 411(b) through (g) of SMCRA and 30 
CFR part 875 and to receive the protections of section 405(l).
    Similarly, the Tribes requested that the limited liability 
protection apply to non-coal reclamation projects, as they were 
concerned that they could face liability if they chose to remediate 
sites, such as abandoned uranium mines. As proposed, our rule would 
provide the option for certified States and Tribes to receive limited 
liability protection for such project; however, we can make no 
predictions on how other federal agencies might approach the provision 
when implementing other federal laws.
    The Tribes questioned how the proposed rule might affect a Tribe's 
AML Reclamation Plan. Unfortunately, we are unable to completely answer 
this question at this time because until the rule is finalized, the 
effects of any final rule on an approved AML reclamation plan are 
speculative. If and when the rule is finalized, OSM together with the 
Tribes would need to conduct a detailed review of the existing approved 
AML reclamation plans to determine if changes need to be made. Because 
noncoal reclamation was routinely conducted by certified States and 
Tribes prior to our rulemaking that implemented the 2006 amendments to 
SMCRA, it is possible that some or all of the approved AML reclamation 
plans may already contain sufficient language to implement the rule 
with only minimal changes.
    The Tribes also voiced concern about the extent of limited 
liability protection provided to public facility projects. The limited 
liability provision extends protections to public facility projects if 
they are conducted under section 411(b) through (g) of SMCRA and 30 CFR 
part 875. The limited liability provision specifies that no State or 
Indian tribe shall be liable under Federal law for any costs or damages 
as a result of any action taken or omitted while carrying out an 
approved abandoned mine reclamation plan. The provision does not 
preclude liability for gross negligence or intentional misconduct by a 
state or Indian tribe.
    In addition, the Tribes commented on the relationship between 
SMCRA's limited liability provision and the Department of the 
Interior's trust responsibilities. More specifically, the

[[Page 8829]]

Tribes asked if OSM provides funding to a Tribe, does OSM assume 
liability? We believe that the limited liability provision of SMCRA and 
the Department's trust responsibilities are two essentially unrelated 
matters. The Department's trust responsibilities are a special Federal 
responsibility, involving the legal responsibilities and obligations of 
the United States towards Indian tribes and the application of 
fiduciary standards of due care with respect to Indian lands, tribal 
trust resources, and the exercise of tribal rights. In contrast, SMCRA 
section 405(l) relates to the potential liability of a State or Indian 
tribe under federal law for costs or damages when carrying out an 
approved reclamation plan. Indian tribe grant recipients provide 
commitments to OSM that expenditures of AML funding will comply with 
federal laws (as well as State, Tribe, and local laws). By providing 
funding, OSM assumes no liabilities for actions taken by the Tribe or 
Tribe officials. As proposed, this rule does not affect the 
Department's trust responsibilities.

I. Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposed rule is not considered a significant energy action 
under Executive Order 13211 because it is not classified as a 
significant rule under Executive Order 12866 and because the proposed 
revisions would not have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a statement of energy 
effects is not required.

J. Paperwork Reduction Act

    This proposed rule contains no new information collection 
requirements that are not already covered by the Office of Management 
and Budget (OMB) control numbers: 1029-0059 for 30 CFR Parts 735, 885 
and 886 and OSM's grant forms OSM-47, OSM-49 and OSM-51; and 1029-0087 
for the OSM-76--Problem Area Description Form used for OSM's Abandoned 
Mined Land Inventory System (AMLIS). We anticipate that there will not 
be an increase in the number of respondents who prepare OSM's grant 
forms, nor an increase in burden per respondent based on this proposed 
rulemaking.

K. National Environmental Policy Act

    We have determined that the revisions in this proposed rule are 
categorically excluded from preparation of an environmental assessment 
or environmental impact statement under the National Environmental 
Policy Act,\19\ as provided in 43 CFR 46.205(b). The specific 
categorical exclusion that applies is the exclusion in 43 CFR 46.210(i) 
for policies, directives, regulations, and guidelines that are of an 
administrative, financial, legal, technical, or procedural nature. In 
this case, extension of the limited liability provision of section 
405(l) to noncoal reclamation conducted by certified states is a legal 
matter. In addition, none of the extraordinary circumstances listed in 
43 CFR 46.215 applies.
---------------------------------------------------------------------------

    \19\ 42 U.S.C. 4332(2)(c).
---------------------------------------------------------------------------

L. Information Quality Act

    In developing this proposed rule, we did not conduct or use a 
study, experiment, or survey requiring peer review under the 
Information Quality Act (Pub. L. 106-554, section 15).

M. Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this proposed rule easier to understand, including answers to questions 
such as the following:
    (1) Are the requirements in the proposed rule clearly stated?
    (2) Does the proposed rule contain technical language or jargon 
that interferes with its clarity?
    (3) Does the format of the proposed rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity?
    (4) Would the rule be easier to understand if it were divided into 
more but shorter sections (a ``section'' appears in bold type and is 
preceded by the symbol ``Sec.  '' and a numbered heading; for example, 
``Sec.  700.5 Definitions.'')?
    (5) Is the description of the proposed rule in the SUPPLEMENTARY 
INFORMATION part of this preamble helpful in understanding the proposed 
rule?
    (6) What else could we do to make the proposed rule easier to 
understand?
    Send a copy of any comments that concern how we could make this 
proposed rule easier to understand to: Office of Information and 
Regulatory Affairs, Department of the Interior, Room 7229, 1849 C 
Street NW., Washington, DC 20240. You also may email the comments to 
this address: Exsec@ios.doi.gov.

List of Subjects

30 CFR Part 700

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.

30 CFR Part 875

    Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees, 
Reporting and recordkeeping requirements, Surface mining, Underground 
mining.

30 CFR Part 879

    Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees, 
Reporting and recordkeeping requirements, Surface mining, Underground 
mining.

30 CFR Part 884

    Grant programs-natural resources, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.

30 CFR Part 885

    Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees, 
Reporting and recordkeeping requirements, Surface mining, Underground 
mining.

    Dated: January 27, 2013.
Tommy P. Beaudreau,
Principal Deputy Assistant Secretary--Land and Minerals Management.

    For the reasons set forth in the preamble, the Department proposes 
to amend 30 CFR parts 700, 875, 879, 884, and 885 as set forth below.

PART 700--GENERAL

0
1. The authority citation for part 700 is revised to read as follows:

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

0
2. Amend Sec.  700.5 by adding a definition for the term ``SMCRA'' in 
alphabetical order to read as follows:


Sec.  700.5  Definitions.

* * * * *
    SMCRA means the Surface Mining Control and Reclamation Act of 1977 
(Pub. L. 95-87), as amended.
* * * * *

PART 875--CERTIFICATION AND NONCOAL RECLAMATION

0
3. The authority citation for part 875 continues to read as follows:

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

0
4. In Sec.  875.11, revise paragraph (b) to read as follows:


Sec.  875.11  Applicability.

* * * * *
    (b) If you are a State or Indian tribe that has certified under 
section 411(a) of the Act--
    (1) You must use State share or Tribal share funds distributed to 
you under section 402(g)(1) of the Act before

[[Page 8830]]

October 1, 2007, in accordance with this part; and
    (2) You may use prior balance replacement funds distributed to you 
under section 411(h)(1) of the Act, certified in lieu funds distributed 
to you under section 411(h)(2) of the Act, or both to--
    (i) Maintain certification as required by Sec. Sec.  875.13 and 
875.14 of this part; or
    (ii) Conduct a noncoal reclamation program in accordance with the 
requirements of this part.
0
5. In Sec.  875.16, revise paragraph (b) to read as follows:


Sec.  875.16  Exclusion of certain noncoal reclamation sites.

* * * * *
    (b) You, the certified state or Indian tribe, may not reclaim sites 
and areas designated for remedial action under the Uranium Mill 
Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.) or that 
have been listed for remedial action under the Comprehensive 
Environmental Response Compensation and Liability Act of 1980 (42 
U.S.C. 9601 et seq.) using--
    (1) Moneys distributed from the Fund under section 402(g)(1) of the 
Act.
    (2) Prior balance replacement funds distributed to you under 
section 411(h)(1) of the Act where you are conducting reclamation under 
the provisions of this part.
    (3) Certified in lieu funds distributed to you under section 
411(h)(2) of the Act where you are conducting reclamation under the 
provisions of this part.
0
6. Revise Sec.  875.17 to read as follows:


Sec.  875.17  Land acquisition authority--noncoal.

    The requirements of parts 877 (Rights of Entry) and 879 
(Acquisition, Management and Disposition of Lands and Water) of this 
chapter apply to a state's or Indian tribe's noncoal reclamation 
program conducted under this part except that, for purposes of this 
section, the term ``noncoal'' replaces all references to ``coal'' in 
parts 877 and 879 of this chapter.
0
7. Revise Sec.  875.19 to read as follows:


Sec.  875.19  Limited liability.

    No certified State or Indian tribe conducting noncoal reclamation 
activities under the provisions of this part is liable under any 
provision of Federal law for any costs or damages as a result of action 
taken or omitted in the course of carrying out an approved State or 
Indian tribe abandoned mine reclamation plan. This section does not 
preclude liability for costs or damages as a result of gross negligence 
or intentional misconduct by the State or Indian tribe. For purposes of 
the preceding sentence, reckless, willful, or wanton misconduct will 
constitute gross negligence or intentional misconduct.
0
8. Revise Sec.  875.20 to read as follows:


Sec.  875.20  Contractor eligibility.

    Every successful bidder for any contract by an uncertified State or 
Indian tribe under this part, or for any contract by a certified State 
or Indian tribe to undertake noncoal reclamation under this part, must 
be eligible under Sec. Sec.  773.12, 773.13, and 773.14 of this chapter 
at the time of contract award to receive a permit or be provisionally 
issued a permit to conduct surface coal mining operations. This section 
does not apply to any contract by a certified State or Indian tribe 
that is not for coal reclamation or that is not for noncoal reclamation 
under this part.

PART 879--ACQUISITION, MANAGEMENT, AND DISPOSITION OF LANDS AND 
WATERS

0
9. The authority citation for part 879 continues to read as follows:

    Authority:  30 U.S.C. 1201 et seq.
0
10. Revise Sec.  879.1 to read as follows:

Sec.  879.1  Scope.

    This part establishes procedures for acquisition of eligible land 
and water resources for emergency abatement activities and reclamation 
purposes by you, a State or Indian tribe with an approved reclamation 
program that has not certified completion of coal reclamation or a 
certified State or tribe conducting noncoal reclamation activities 
under part 875 of this chapter, or by us. It also provides for the 
management and disposition of lands acquired by the State, the Indian 
tribe, or us.
0
11. In Sec.  879.11, revise paragraphs (a) and (b) to read as follows:


Sec.  879.11  Land eligible for acquisition.

    (a)(1) We may acquire land adversely affected by past coal mining 
practices with moneys from the Fund.
    (2) You, an uncertified State or Indian tribe or a certified State 
or Indian tribe conducting noncoal reclamation under part 875 of this 
chapter, may acquire land adversely affected by past coal mining 
practices with moneys from the Fund or with prior balance replacement 
funds and certified in lieu funds provided under Sec. Sec.  872.29 and 
872.32 of this chapter, provided that we first approve the acquisition 
in writing.
    (3) Before acquiring land under paragraph (a)(1) of this section or 
approving land acquisition under paragraph (a)(2) of this section, we 
must make a finding that the land acquisition is necessary for 
successful reclamation and that--
    (i) The acquired land will serve recreation, historic, 
conservation, and reclamation purposes or provide open space benefits 
after restoration, reclamation, abatement, control, or prevention of 
the adverse effects of past coal mining practices; and
    (ii) Permanent facilities will be constructed on the land for the 
restoration, reclamation, abatement, control, or prevention of the 
adverse effects of past coal mining practices. For the purposes of this 
paragraph, ``permanent facility'' means any structure that is built, 
installed, or established to serve a particular purpose or any 
manipulation or modification of the site that is designed to remain 
after the reclamation activity is completed, such as a relocated stream 
channel or diversion ditch.
    (b) You, an uncertified State or Indian tribe or a certified State 
or Indian tribe conducting noncoal reclamation under part 875 of this 
chapter, if approved in advance by us, may acquire coal refuse disposal 
sites, including the coal refuse, with moneys from the Fund and with 
prior balance replacement funds and certified in lieu funds provided 
under Sec. Sec.  872.29 and 872.32 of this chapter. We, OSM, also may 
use moneys from the Fund to acquire coal refuse disposal sites, 
including the coal refuse.
    (1) Before the approval of the acquisition, the reclamation program 
seeking to acquire the site will make a finding in writing that the 
acquisition is necessary for successful reclamation and will serve the 
purposes of the reclamation program.
    (2) Where an emergency situation exists and a written finding as 
set forth in Sec.  877.14 of this chapter has been made, we may acquire 
lands where public ownership is necessary and will prevent recurrence 
of the adverse effects of past coal mining practices.
* * * * *
    12. In Sec.  879.15, revise paragraph (h) to read as follows:


Sec.  879.15  Disposition of reclaimed land.

* * * * *
    (h) You must return all moneys received from disposal of land under 
this part to us. We will handle all moneys received under this 
paragraph as unused funds in accordance with Sec. Sec.  885.19 and 
886.20 of this chapter.

PART 884--STATE RECLAMATION PLANS

0
13. The authority citation for part 884 continues to read as follows:


[[Page 8831]]


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

0
14. In Sec.  884.13, revise the introductory text to read as follows:


Sec.  884.13  Content of proposed State reclamation plan.

    You must submit each proposed State reclamation plan to the 
Director in writing. A proposed plan must include the information set 
forth in all of the following paragraphs of this section. In addition, 
a proposed plan for a certified State or Indian tribe must also include 
a commitment to address eligible coal problems found or occurring after 
certification as required in Sec. Sec.  875.13(a)(3) and 875.14(b) of 
this chapter.
* * * * *

PART 885--GRANTS FOR CERTIFIED STATES AND INDIAN TRIBES

0
15. The authority citation for part 879 continues to read as follows:

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

0
16. In Sec.  885.12, revise paragraph (b) to read as follows:


Sec.  885.12  What can I use grant funds for?

* * * * *
    (b) You may use grant funds as established for each type of funds 
you receive. You may use prior balance replacement funds as provided 
under Sec.  872.31 of this chapter. You may use certified in lieu funds 
as provided under Sec.  872.34 of this chapter. You may use the 
following moneys for noncoal reclamation under section 411 of the Act 
and part 875 of this chapter:
    (1) Moneys that may be available to you from the Fund.
    (2) Prior balance replacement funds made available under Sec.  
872.31 of this chapter.
    (3) Certified in lieu funds as provided under Sec.  872.34 of this 
chapter.
* * * * *
0
17. In Sec.  885.16, revise the section heading and paragraph (e) to 
read as follows:


Sec.  885.16  After OSM approves my grant, what responsibilities do I 
have?

* * * * *
    (e) If you conduct a coal reclamation project under part 874 of 
this chapter or noncoal reclamation under part 875 of this chapter, you 
must not expend any construction funds until you receive a written 
authorization to proceed with reclamation on an individual project. Our 
authorization to proceed ensures that both you and we have taken all 
actions necessary to ensure compliance with the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and any other applicable 
laws, clearances, permits, or requirements.
* * * * *
0
18. In Sec.  885.20, revise paragraph (c) to read as follows:


Sec.  885.20  What must I report?

* * * * *
    (c) You must use the AML inventory to maintain a current list of 
AML problems and to report annual reclamation accomplishments with 
grant funds.
    (1) If you conduct coal reclamation projects or noncoal reclamation 
projects under part 875 of this chapter, you must update the AML 
inventory for each reclamation project as you fund it.
    (2) You must update the AML inventory for each reclamation project 
you complete as you complete it.
    (3) We must approve any amendments to the AML inventory after 
December 20, 2006. We define ``amendment'' as any coal problems added 
to the AML inventory in a new or existing problem area.

[FR Doc. 2013-02589 Filed 2-5-13; 8:45 am]
BILLING CODE 4310-05-P