[Federal Register Volume 68, Number 207 (Monday, October 27, 2003)]
[Proposed Rules]
[Pages 61175-61178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27045]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[MT-024-FOR]


Montana Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Montana regulatory program (hereinafter, the ``Montana program'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). Montana proposes to make editorial and substantive revisions to 
the Montana Strip and Underground Mine Reclamation Act (MSUMRA) 
provisions in the Montana Code Annotated (MCA) that pertain to: State 
policy and findings concerning mining and reclamation; definitions; the 
time required to approve or disapprove minor permit revisions; permit 
application requirements, including determinations of probable 
hydrologic consequences and land use; requirements to protect the 
hydrologic balance; area mining, post-mine land use, and wildlife 
enhancement; revegetating disturbed areas; timing of reclamation; 
standards for successful revegetation; making vegetation the 
landowner's property after bond release; jurisdictional venue in right-
of-entry actions; transfer of revoked permit; and mandamus. The State 
also proposes to add new provisions to the MSUMRA for: Revising 
applications for permits, permit amendments, and permit revisions; 
codifying the changes proposed in the amendment; clauses for 
severability, saving, and contingent voidness; and a delayed effective 
date for the proposed changes. Montana intends to revise its program to 
incorporate the additional flexibility afforded by the revised Federal 
regulations and SMCRA, as amended, to provide additional clarification, 
and to improve operational efficiency.
    This document gives the times and locations that the Montana 
program and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
mountain daylight time November 26, 2003. If requested, we will hold a 
public hearing on the amendment on November 21, 2003. We will accept 
requests to speak until 4 p.m., mountain daylight time, on November 12, 
2003.

ADDRESSES: You should mail or hand-deliver written comments and 
requests to speak at the hearing to Guy Padgett at the address listed 
below.
    You may review copies of the Montana program, this amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Casper Field Office.

Guy Padgett, Director, Casper Field Office, Office of Surface Mining, 
Federal Building, 100 East B Street, Casper, Wyoming 82601-1918, 
Telephone: (307) 261-6550, e-mail: [email protected].
Neil Harrington, Chief, Industrial and Energy Minerals Bureau, Coal and 
Uranium Program, Department of Environmental Quality, Phoenix Building, 
2209 Phoenix Avenue, P.O. Box 200902, Helena, Montana 59620-0902, 
Telephone: (406) 444-4973, e-mail: [email protected].

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Casper Field Office 
Director; telephone: (307) 261-6550; e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Montana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Montana Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Montana program on April 1, 1980. You can 
find background information on the Montana program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Montana program in the April 1, 1980, Federal Register 
(45 FR 21560). You can also find later actions concerning Montana's 
program and program amendments at 30 CFR 926.15, 926.16, and 926.30.

II. Description of the Proposed Amendment

    By letter dated July 29, 2003, Montana sent us a proposed amendment 
to its program (SATS MT-024-FOR; Administrative Record No. MT-21-1) 
under SMCRA (30 U.S.C. 1201 et seq.). Montana sent the amendment to 
include changes made at its own initiative. The full text of the 
program amendment is available for you to read at the locations listed 
above under ADDRESSES.
    The provisions of the Montana Strip and Underground Mine 
Reclamation Act that Montana proposes to add and/or revise are as 
follows.

82-4-202, Policy--Findings

    Making editorial changes to State policy and findings concerning 
the environment, mining and reclamation and adding new policy and 
findings statements.

82-4-203, Definitions

    Adding or revising the terms ``adjacent area,'' ``approximate 
original contour,'' ``cropland,'' ``developed water resources,'' 
``ephemeral drainageway,'' ``fish and wildlife habitat,'' ``forestry,'' 
``grazing land,'' ``higher or better uses,'' ``hydrologic balance,'' 
``industrial or commercial,'' ``intermittent stream,'' ``land use,'' 
``material damage,'' ``pastureland,'' ``perennial stream,'' 
``reclamation,'' ``recreation,'' ``reference area,'' ``residential,'' 
``restore or restoration,'' ``surface owner,'' and ``wildlife habitat 
enhancement feature''; and recodifying defined terms and making 
editorial changes in the wording of several terms.

[[Page 61176]]

82-4-221, Mining Permit Required

    Decreasing the time during which the Department of Environmental 
Quality (DEQ) must approve or disapprove an application for a minor 
permit revision.

82-4-222, Permit Application

    Adding specific requirements for a determination of probable 
hydrologic consequences, a water monitoring plan, a postmining 
topography map, and a description of the permit area's premining 
condition, and recodifying parts of the section and making editorial 
changes throughout it.

82-4-231, Submission of and Action on Reclamation Plan

    Revising the requirement to minimize disturbances to the prevailing 
hydrologic balance and making editorial changes throughout the section.

82-4-232, Area Mining Required--Bond--Alternative Plan

    Revising the highwall reduction, approximate original contour, and 
alternate postmining land use provisions; defining the term 
``landowner'' in context of this section, adding provisions for timely 
reclamation, wildlife habitat enhancement features, and for replacing 
pre-existing facilities, and recodifying parts of the section and 
making editorial changes throughout it.

82-4-233, Planting of Vegetation Following Grading of Disturbed Area

    Revising provisions for establishing a vegetative cover, for 
reestablished plant species, and for reestablished vegetation, and 
recodifying parts of the section and making editorial changes 
throughout it.

82-4-234, Commencement of Reclamation

    Removing the prohibition against disturbing an area seeded as 
required by 82-4-233 without DEQ approval and making editorial changes 
to the section.

82-4-235, [Renamed ``Determination of Successful Revegetation--Final 
Bond Release'']

    Adding new provisions for revegetation success, including new 
success standards, and recodifying parts of the section and making 
editorial changes throughout it.

82-4-236, Vegetation as Property of Landowner

    Making editorial changes.

82-4-239, Reclamation

    Establishing jurisdictional venue for right-of-entry actions and 
making editorial changes.

82-4-250, Operating Permit Revocation--Permit Transfer

    Deleting the expiration on this provision.

82-4-252, Mondamus

    Making editorial changes.
    Montana also proposes to add new sections for: (1) Allowing permit 
and reclamation plan application revisions based on the proposed 
statutory changes; (2) codification instructions for making the 
provisions for revising permit applications part of the MSUMRA; (3) 
severability, to ensure that, if some of the new provisions are found 
to be invalid, other parts that are severable from them remain in 
effect; (4) a savings clause that keeps these statutory changes from 
affecting rights and duties that matured, penalties that were incurred, 
or proceedings begun before the effective date of these changes; (5) 
contingent voidness to void any of these statutory changes if the 
Secretary of the Interior disapproves them and for certifying such 
disapproval; and for making January 1, 2004, the effective date of 
these changes.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Montana program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your comments should be specific, pertain only to the 
issues proposed in this rulemaking, and include explanations in support 
of your recommendations. We will not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see DATES). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Casper Field Office may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SATS No. MT-024-FOR'' and your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Casper Field Office (307) 
261-6550.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., mountain 
daylight time on November 12, 2003. If you are disabled and need 
special accommodations to attend a public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT. We will arrange the 
location and time of the hearing with those persons requesting the 
hearing. If no one requests an opportunity to speak, we will not hold 
the hearing. To assist the transcriber and ensure an accurate record, 
we request, if possible, that each person who speaks at a public 
hearing provide us with a written copy of his or her comments. The 
public hearing will continue on the specified date until everyone 
scheduled to speak has been given an opportunity to be heard. If you 
are in the audience and have not been scheduled to speak and wish to do 
so, you will be allowed to speak after those who have been scheduled. 
We will end the hearing after everyone scheduled to speak and others 
present in the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make

[[Page 61177]]

a written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

    The Office of Management and Budget (OMB) exempted this rule from 
review under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

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

    In accordance with Executive Order 13175, we evaluated the 
potential effects of this rule on Federally-recognized Indian Tribes 
and have determined that this proposed rule does not have substantial 
direct effects on one or more Indian Tribes, 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. The proposed rule solicits public input 
but does not make any decisions or determinations. The State of 
Montana, under a Memorandum of Understanding with the Secretary of the 
Interior (the validity of which was upheld by the U.S. District Court 
for the District of Columbia), does have the authority to apply the 
provisions of the Montana regulatory program to mining of some coal 
minerals held in trust for the Crow Tribe. OSM is in the process of 
consulting with the Crow Tribe on this proposed program amendment.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based on 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect on a substantial number of small entities. 
In making the determination as to whether this rule would have a 
significant economic impact, the Department relied on the data and 
assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based on the fact that the State 
submittal, which is the subject of this rule, is based on counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based on the fact that the State 
submittal, which is the subject of this rule, is based on counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 926

    Intergovernmental relations, Surface mining, Underground mining.


[[Page 61178]]


    Dated: October 2, 2003.
James F. Fulton,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 03-27045 Filed 10-24-03; 8:45 am]
BILLING CODE 4310-05-P