PART 632—RURAL ABANDONED MINE PROGRAM Authority: Sec. 406, Pub. L. 95-87; 91 Stat. 460 (30 U.S.C. 1236). Source: 43 FR 44749, Sept. 28, 1978, unless otherwise noted. Subpart A—General § 632.1 Purpose and scope. (a) The purpose of this part is to set forth the Natural Resources Conservation Service (NRCS) rules and regulations to carry out the Rural Abandoned Mine Program under section 406, Pub. L. 95-87; 91 Stat. 460 (30 U.S.C. 1236). (b) The Rural Abandoned Mine Program: (1) Through the NRCS delivery system, assists land users to voluntarily develop reclamation plans and apply conservation treatment for the reclamation, conservation, and development of eligible coal-mined lands and water, and (2) Provides cost sharing through long-term contracts according to an approved reclamation plan, to land users for establishing land use and conservation treatment on these lands. § 632.2 Objectives. (a) The objectives of the program are to protect people and the environment from the adverse effects of past coal-mining practices and to promote the development of the soil and water resources of unreclaimed mined lands by: (1) Stabilizing mined lands. (2) Controlling erosion and sediment on mined areas and areas affected by mining. (3) Reclaiming lands and water for useful purposes. (4) Enhancing water quality or quantity where it has been disturbed by past coal-mining practices. § 632.3 Responsibilities. (a) The Rural Abandoned Mine Program is administered by the U.S. Department of Agriculture (USDA) through NRCS in accordance with the delegation of responsibility contained in § 601.1(h) of this chapter. (1) The Chief of NRCS is responsible for national program management and administration and for coordinating program operations with the Office of Surface Mining (OSM), U.S. Department of the Interior. (2) State conservationists (Responsible Federal Officials) are responsible for program operations within a State including program coordination with the State reclamation agency and the representatives of OSM. (b) The primary public contacts for program assistance are the district conservationists located in local NRCS field offices. (c) NRCS is assisted by other USDA agencies in accordance with existing authorities and agreements in carrying out the program. (d) NRCS is to coordinate Rural Abandoned Mine Program activities with NRCS programs and the other reclamation programs authorized by Pub. L. 95-87 that are carried out by the Office of Surface Mining of the U.S. Department of the Interior, State reclamation agencies, and Indian tribes. Coordination includes program development, development of reclamation standards, preparation of special reports, requests for funding, and related actions required to achieve coordination between programs. (e) NRCS is to consult with State and local reclamation committees to obtain recommendations on program operation, evaluation of applications for reclamation assistance, and public participation. The NRCS State Conservationist is to use existing reclamation committees or encourage the organization of a new State committee for this purpose. The State Conservationist is to serve as a member when the committee is functioning for the purposes of this program. Representatives of the Office of Surface Mining, State reclamation agency, State water quality agency, State conservation agency, and other agencies or groups are to be invited to participate as members. Individual citizens may participate through the State committee. Local committees, if needed, are to be organized on a multicounty, county, conservation district, or other appropriate area with a local membership structure similar to the State committee. The district conservationist is to be a member of a local reclamation committee organized to provide program guidance. [43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980] § 632.4 Definitions. Abandoned mined lands. Average costs. Conservation district. Conservation treatment. Contract. Contracting officer. Cost. Cost-share payments. Financial burden. Identifiable unit. Inadequately reclaimed. Landrights. Land user. Main benefits. Reclamation committee. Reclamation plan. Specified maximum costs. Standards and specifications. Water rights. [43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980] Subpart B—Qualifications § 632.10 Applicability. This program applies to any county or other designated area within a State that had abandoned or inadequately reclaimed coal-mined lands within its borders before August 3, 1977. § 632.11 Availability of funds. (a) The provisions of the program are subject to the annual appropriation by Congress of funds from the Abandoned Mine Reclamation Fund and the transfer of as much as 20 percent of these funds from the Office to Surface Mining to NRCS for program operation. (b) Allotments of Rural Abandoned Mine Program funds to state conservationists are to reflect the national program needs, the geographic areas from which the funds were derived, the funding priority assigned to applications for program assistance, including benefits expected to be derived, and the practicability and feasibility of the reclamation work proposed. § 632.12 Funding priorities. (a) All eligible applications within a State are to be assigned a funding priority and subpriority. Assignment of a priority and subpriority establishes the order in which the proposed reclamation work will be selected and evaluated for funding. (See § 632.20(b) for additional selection criteria.) Applications for individual, joint, or special projects (See § 632.18) for areas of different priorities or subpriorities are to be assigned the highest applicable priority or subpriority. The funding priorities are as follows: (1) Priority 1. (2) Priority 2. (3) Priority 3. (b) Eligible and feasible applications for program assistance within each priority category (§ 632.12(a)) are to be funded in the following order: (1) Individual persons or public entities who owned the eligible area before May 2, 1977, and who neither consented to nor exercised control over the mining operation. (2) Individual persons who would actively use the area, if reclaimed, for agricultural or silvicultural purposes. (3) All other participants. [43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980] § 632.13 Eligible lands and water. Lands and water eligible for reclamation are those that were mined for coal or were affected by coal-mining processes and were abandoned or inadequately reclaimed before August 3, 1977. These lands and water are not eligible if: (a) There is continuing reclamation responsibility on the part of a mine operator, permittee, or agent under State or Federal law or on the part of the State as a result of bond forfeiture. However, if the amount of the bond forfeiture was insufficient to reclaim the area covered by the bond, the area will be considered eligible. (b) They are under Federal ownership and control. (c) The surface rights are under easement or lease to be remined for coal or other minerals. § 632.14 Eligible land users. Landowners holding surface land and water rights, residents, tenants, or their agents who own or have management control of eligible land and/or water are eligible to participate in the program. Residents or tenants who do not own the land must have control of the land for the period of the proposed contract and have the written consent of the landowner. Land users may participate by operating as persons, partnerships, associations, corporations, estates, trusts, or non-Federal public entities, and by acting individually or jointly with other eligible land users. However, joint participation with other eligible land users is required if the primary purpose of reclamation is enhancement of water quality or quantity. § 632.15 Eligible uses and treatment of reclaimed lands. (a) Reclaimed lands and water may be used for cropland, hayland, pasture land, rangeland, woodland, wildlife land, natural areas, noncommercial recreation land, and the supporting uses associated with these land uses. Other land uses proposed by public entities for public use and benefit such as open space, conservation uses, natural areas, and recreation sites may be approved by the NRCS State conservationist in accordance with the priorities stated in § 632.12. However, development of public sites, such as the installation of recreation facilities, is not eligible for cost sharing. (b) Reclaimed land use is determined by the objectives of the land user, compatibility of the land use with surrounding land use, and the practicability and feasibility of restoring the soil and water resources to support the use selected. (c) The maximum acreage of eligible lands and water that may be offered for contract under one ownership is 320 acres for the life of the program. (d) Conservation treatment eligible for Federal cost sharing includes the combination of practices needed and feasible to achieve: (1) Protection of life, property, and elimination of public health and safety hazards, including land stabilization. (2) Restoration of the environment where degraded by past mining, including water quality, visual quality, recreation resources, fish and wildlife habitat, and erosion and sediment control. (3) A site that can be developed for a beneficial use as specified in § 632.15(a). Examples of eligible treatment that may be cost shared include but are not limited to: Land shaping and grading, critical area planting or other plantings for stabilization, improving visual quality, wildlife food and cover, diversions or terraces, waterways or lined ditches, grade stabilization structures, sediment basins, and special practices for sealing shafts and tunnels, correcting subsidence problems, or other unusual situations. Practices not eligible for cost sharing are those that are solely applied to develop a reclamation site (including sites developed by public entities for public use), increase the production of crops, or for the recurring maintenance of applied reclamation. (e) Applied conservation treatment is to meet the applicable Federal and State standards for the reclamation and conservation treatment of abandoned or inadequately reclaimed coal-mined lands and water. Where needed, these standards are incorporated in local NRCS technical guides as the NRCS standards and specifications applicable to the program. Special practices as specified in § 632.15(d) are to be developed in cooperation with appropriate State or Federal agencies having the expertise or responsibility for the practices. (f) NRCS State conservationists, in consultation with the State reclamation committee, are to: (1) Develop a list of practices that are eligible for cost sharing, and (2) Maintain, as applicable, lists of average costs of applying conservation treatment to eligible lands and waters. § 632.16 Methods of applying planned land use and treatment. (a) Land users may arrange to apply the planned land uses and conservation treatment specified in the contract by one or more of the following methods: (1) By performing the required treatment with his own labor and equipment. (2) By hiring a qualified contractor to install the required treatment. (3) By requesting NRCS to award and administer a contract to perform the required treatment in accordance with 41 CFR chapters I and IV. (b) State conservationists are to develop criteria specifying the conditions for which NRCS will award and administer a contract. Criteria will consider: Type of equipment required, type and amount of conservation treatment required, costs of the required reclamation, needs of the land user, and the applicable cost-share rate. If the Federal share is less than 100 percent, a land user must put up his estimated share of the cost before NRCS awards the contract. § 632.17 Cost-share rates. (a) Cost-share rates paid by the Federal Government are to be established and issued as instructions by the NRCS Administrator in accordance with the following criteria: (1) For 120 acres or less, the cost-share rate is to provide up to 80 percent of the costs of land use and conservation treatment depending on the income-producing potential of the land after reclamation. However, this rate may be increased to a level required to obtain participation if the main benefits of reclamation are offsite (in the public interest) and there is a declaration of financial burden by the participant. (2) The rate on acreage in excess of 120 acres up to 320 acres maximum is to be reduced by up to 0.5 percent per acre. This reduced rate applies to the entire acreage offered for contract. § 632.18 Special projects. (a) The NRCS State conservationist may approve the following types of special projects subject to the eligibility requirements, funding priorities, and cost-share rates as stated in §§ 632.12, 632.13, 632.14, 632.15, and 632.17: (1) Field trials or demonstration projects recommended by the State reclamation committee. (2) Projects to enhance water quality and quantity where past coal-mining practices disturbed local water supplies and where joint action by a group of eligible land users in cooperation with Federal and State agencies is needed to restore the water resource. § 632.19 Crop history and allotments. (a) Most crop history and allotments on eligible lands were discontinued at the time of mining. However, if eligible lands are classified as cropland at the time the contract is signed, the cropland crop history and allotment, if any, may be: (1) Preserved for a period not to exceed twice the length of the contract as provided in 7 CFR part 719, or (2) Voluntarily surrendered by the land user. Subpart C—Participation § 632.20 Application for assistance. (a) Land users must submit an application for program assistance through the local conservation district or NRCS field office. NRCS is to announce dates for receiving applications through local media. Applications are to be reviewed by the conservation district and/or local reclamation committee, which is to verify eligibility and recommend funding priorities to the NRCS district conservationist. The NRCS district conservationist is to assign funding priorities according to the recommendations unless he determines that applications are incomplete, ineligible, or unfeasible. Low priority applications that cannot be serviced within specific time periods established by the State conservationist are to be returned to the applicant with an appropriate explanation. These applicants may reapply at a later date if they are still interested. (b) Eligible applicants are serviced within each subpriority according to the following criteria: (1) The specific type, amount, and relative importance of benefits to be derived. (Public benefits and offsite environmental improvement will take precedence over onsite benefits.) (2) Feasibility and practicability of reclaiming for the proposed uses. (3) Land user's ability to proceed. (4) Date of the application. § 632.21 Reclamation plan. (a) Responsibility. (b) Objectives and priorities. (c) Review. (2) If reclamation plans include lands within or adjacent to Federal lands, the plan is to be reviewed with the appropriate Federal land management agency to insure that the planned land use is compatible with that of the surrounding area. (3) Land users are responsible for insuring that the proposed land use and treatment is compatible with local land use ordinances. (d) Approval. § 632.22 Contracts. (a) Cost-sharing contracts. (b) Effect of contract. (c) Permits, landrights, and water rights. (d) Operation and maintenance. (e) Period of contract. (f) Transfer of contract. (i) Forfeits all right to any future cost-share payments on the transferred land unit, and (ii) Must refund cost-share payments that have been made on the transferred land unit not to exceed the difference between the estimated value of the land at the time of entering into the contract and at the time of transfer, unless the new land user becomes a party to the contract as provided in paragraph (f)(2) of this section. (2) If the new land user becomes a party to the contract: (i) He is to assume all obligations of the previous land user on the transferred land unit. (ii) The contract with the new land user is to remain in effect with the original terms and conditions. (iii) The contract is to be modified in writing to show the changes caused by the transfer. If the modification is not acceptable to the contracting officer, the provisions of paragraphs (f)(1) (i) and (ii) of this section apply. (3) The transfer of all or part of a land unit by a land user does not affect the rights and obligations of other land users who have signed the contract. (g) Modification of contract. (2) Contracts may be modified to add, delete, substitute, or reapply conservation treatment if: (i) Applied conservation treatment failed to achieve the desired results through no fault of the land user, (ii) Applied treatment deteriorated because of conditions beyond the control of the land user, or (iii) Other treatment is substituted that will achieve the desired results. (h) Joint contract. (i) Termination of contract. § 632.23 Access to land unit and records. Any authorized NRCS employee or agent is to have the right of access to land under application or contract and the right to examine any program records to ascertain the accuracy of any representations made in the application or contract. This includes the right to furnish technical assistance and to inspect work done under the contract. Subpart D—Cost-Share Procedures § 632.30 Applicability. This subpart contains procedures for making cost-share payments to a land user when land use and conservation treatment is applied as specified in § 632.16(a)(1) or (2). § 632.31 Cost-share payment. (a) Amount of cost-share payment. (1) Average cost. (2) Actual cost but not more than the average cost. (3) Specified maximum cost. If the average cost or the specified maximum cost at the time of starting the installation of a conservation practice or identifiable unit is less than the cost specified in the contract, payment is to be made at the lower rate. If the cost at the start of installation is higher, payment may be made at the higher rate. A contract modification is necessary if NRCS determines that the higher cost is a significant increase in the total cost-share obligation. If costs are significant, cost-share payment is not to be made until the modification reflecting the increase is approved. If the higher costs are not significant, cost-share payments may be made if funds are available. (b) Time of payment. (c) Approval. (d) Ineligible claim. (e) Authorization for payment. (2) The contracting officer is to authorize payment for materials or services not exceeding: (i) The cost share of the material or service used, or (ii) The total cost share of the practices or identifiable unit if requested by the land user. (3) The land user who purchases materials or services to carry out a contract is responsible for them until the district conservationist determines that the material or service was used for the intended purpose. If a material or service cost-shared by NRCS is used for a purpose other than to carry out the contract, the land user is indebted to the United States for the cost of the misused material or service. This indebtedness is to be repaid to NRCS as a refund or withheld from cost-share payments otherwise due the land user under the contract. (4) NRCS has the right to inspect materials or services and to take samples for testing. Inspections by NRCS will not be necessary if NRCS considers State inspection regulations adequate. (5) Materials or services must meet the quality standards as specified. NRCS may make exceptions for materials or services that do not meet the standards only if they will satisfactorily serve the intended purpose. NRCS is to deduct from the cost-share payment the difference between the price of the materials or services specified and the actual value of the different materials or services. (f) Division of cost-share payments. (g) Other aid. (h) Assignments and claims. Subpart E—Appeals and Violations § 632.40 Appeals. Land users may appeal decisions under this part in accordance with part 614 of this title. [60 FR 67316, Dec. 29, 1995] § 632.41 Violations. (a) Actions causing violation. (1) Knowingly or negligently damaging or causing conservation treatment to be impaired. (2) Adopting land use or treatment that tends to defeat the program purposes during the period of the contract. (3) Failing to comply with the terms of the contract. (4) Filing a false claim. (5) Misusing an authorization. (b) Effect of violation Contract to be terminated. (A) There was a violation of the contract during the time the land user had control of the land, and (B) The violation was of a nature as to warrant termination of the contract. (ii) The land user is to be obligated to refund cost-share payments and cost shares paid under authorizations not to exceed the difference between the estimated value of the land at time of entering into the contract and the value at time of termination. (2) Contract not terminated. (A) There was a violation of the contract during the time the land user had control of the land, and (B) The nature of the violation does not warrant termination of the contract. (ii) Payment adjustments may include decreasing the rate of a cost share, deleting a cost-share commitment from the contract, or withholding cost-share payments earned but not paid. The land user who signs the contract may be obligated to refund cost-share payments and cost shares paid under authorizations. § 632.42 Violation procedures. (a) Scope. (b) Determination by contracting officer. (1) Determine, with the approval of the State conservationist, that a violation did not occur or that the violation was of such a nature that no penalty of forfeiture, refund, or payment adjustment is necessary. No notice is issued to the land user, and no further action is to be taken; or (2) Determine that a violation did occur, but the land user agrees to accept the penalty. If the land user agrees in writing to accept a penalty of forfeiture, refund, payment adjustment or termination, no further action is to be taken. The land user's agreement to accept the penalty must be approved by the contracting officer and State conservationist. (c) Notice of possible violation. (2) The notice setting forth the nature of the alleged violation is to give the land user an opportunity to appear at a hearing before a hearing officer designated by the State conservationist. The land user's request for a hearing is to be submitted in writing and must be received in the NRCS field office within 30 days after receipt of the notice. The land user is to be notified in writing by the hearing officer of the time, date, and place for the hearing. The land user is to have no right to a hearing if he does not file a written request for a hearing, or if he or his representative does not appear at the appointed time, unless the hearing officer, at his discretion, permits an appearance. A request for a hearing filed by a land user is considered to be a request by all land users who signed the contract. (d) Hearing. (1) The land user or his representative is to be given full opportunity to present oral or documentary evidence about the alleged violation. Likewise, the United States may submit statements and evidence. Individuals not otherwise represented at the hearing may be permitted, at the discretion of the hearing officer, to give information of evidence. The hearing officer, at his discretion, may permit witnesses to be cross-examined. (2) The hearing officer is to make a record of the hearing so that the testimony can be summarized. A summary of the testimony may be made if both the land user and the State conservationist agree. A transcript of the hearing is to be made if requested by either the State conservationist or the land user within 10 days of the hearing. If a transcript is requested by the land user, the land user may be assessed the cost of a copy of the transcript. (3) The hearing officer is to close the hearing after a reasonable period of time if the land user or his representative is not present at the scheduled time. The hearing officer may, at his discretion, accept information and evidence submitted by others present for the hearing. (4) The hearing officer is to furnish the State conservationist with a written report setting forth his findings, conclusions, and recommendations. The report is to include the summary of testimony or transcript made of the hearing and any other information that would aid the State conservationist in reaching his decision. (e) Decision by State conservationist. (f) Appeal to Chief. (1) If the decision provides for termination of the contract, it is to state that the contract is terminated, that all rights to further cost-share payments under the contract are forfeited, and that cost-share payments received under the contract are to be refunded, but the refund is not to exceed the difference between the estimated value of the land at time of entering into the contract and the value at time of termination. The decision is to state the amount of refund and method of payment. (2) If the decision does not provide for termination of the contract, the land user may be required to make a refund of cost-share payments or to accept payment adjustments. The decision is to state the amount of refunds of cost-share payments or payment adjustments. In determining amounts of refund or payment adjustments, the following are to be considered: (i) The extent of the violation. (ii) Whether the violation was deliberate or the result of negligence or was caused by circumstances beyond the control of the land user. (iii) The effect on the program if no refund or payment adjustment is required. (iv) The extent to which the land user benefited by the violation. (v) The effect of the violation on the contract as a whole. (vi) Other considerations including the appropriateness and reasonableness of the refund or payment adjustment. [43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980] Subpart F—Environment § 632.50 Environmental evaluation. (a) Environmental evaluation is an integral part of planning used by NRCS in developing each reclamation plan under this program. Planning includes site inventory and analysis, evaluation of reasonable alternatives, and identification of significant environmental impacts. Major points in planning when NRCS or the land user can make decisions concerning further action are: (1) After an evaluation of the application for program assistance to verify eligibility, land user objectives, and priorities for funding. (2) After a site-specific inventory and analysis to evaluate feasible treatment alternatives, costs, and environmental impacts. (3) After development of an acceptable reclamation plan as a basis for contract. (4) Before the signing of a mutually acceptable contract for financial cost-share assistance. (b) The scope and complexity of the assessment is to be consistent with the scope and complexity of the proposed reclamation. (c) An interdisciplinary team, consisting of NRCS and/or other cooperating agency personnel as needed, is used in making the assessment. (d) The Responsible Federal Official (RFO) is to use the environmental evaluation to make a decision concerning the need to prepare an environmental impact statement (EIS) in accordance with § 632.52. [43 FR 44749, Sept. 28, 1978, as amended at 45 FR 65181, Oct. 2, 1980] § 632.51 Accord with environmental laws and orders. (a) A final program EIS is available in compliance with section 102(2)(c) of the National Environmental Policy Act of 1969 (NEPA). This statement discloses the cumulative program impacts that significantly affect the quality of the human environment. (b) The program is to be conducted in accordance with other laws and Executive orders concerning environmental protection. (c) Channelization of streams is prohibited under this program. Channelization as used herein means the overall widening, deepening, realining, or constructing a nonvegetative protective lining over all or part of the perimeter of a perennial stream channel as described in NRCS Channel Modification Guidelines, Part B, Items 4, 5, 6, and 7, as published in the Federal Register § 632.52 Identifying typical classes of action. (a) The RFO will analyze the environmental assessment of the proposed action to determine which of the following classes of action applies. This determination will be recorded and will be available to the public on request. (1) Actions not requiring a site-specific EIS. (i) Modify the action to eliminate or mitigate the significant adverse impacts, or (ii) Withdraw further Federal assistance if significant adverse impacts cannot be eliminated or mitigated. (2) Actions requiring a site-specific EIS. Federal Register. (3) Actions excluded from the EIS requirements.