[Federal Register Volume 74, Number 2 (Monday, January 5, 2009)]
[Rules and Regulations]
[Pages 217-219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31275]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SATS No. MT-028-FOR; Docket ID No. OSM-2008-0018]


Montana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving an amendment to the Montana regulatory 
program (the ``Montana program'') under the Surface Mining Control and 
Reclamation Act of 1977 (``SMCRA'' or ``the Act''). Montana proposed 
revisions to its statute as discussed in SUPPLEMENTARY INFORMATION, II. 
Proposed Amendment, to clarify ambiguities and improve operational 
efficiency.

DATES: Effective Date: January 5, 2009.

FOR FURTHER INFORMATION CONTACT: Casper Field Office Director Jeffrey 
Fleischman, Telephone: 307/261-6550, Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM's) 
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 in the April 1, 1980, Federal Register (45 FR 21560). You can 
also find later actions at 926.15, 926.16, and 926.30.

II. Submission of the Proposed Amendment

    By letter dated July 7, 2008, Montana sent us an amendment to its 
program (Administrative Record No. MT-025-01, under SMCRA (30 U.S.C. 
1201 et seq.). Montana sent the amendment for changes made at its own 
initiative. The provisions of the Montana Strip and Underground Mine 
Reclamation Act that Montana proposed to revise are within MCA 82-4-
232, Area mining required--bond--alternative plan.
    We announced receipt of the proposed amendment in the August 26, 
2008, Federal Register 73 FR 50265. In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the amendment's adequacy (Administrative Record No. MT-
25-05). We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on September 25, 2008. 
We received comments from one Federal agency.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment.

A. Minor Revisions to Montana's Statute

    Montana proposed minor wording changes to the following previously-
approved Montana Strip and Underground Mine Reclamation Act:
    MCA 82-4-232(3) and (4). Area mining required--bond--alternative 
plan.
    Because these changes are minor, we find that they will not make 
Montana's statute less stringent than SMCRA.

B. Revisions to Montana's Statute That Have the Same Meaning as the 
Corresponding Provisions of SMCRA

    Montana proposed revisions to its statute at MCA 82-4-232(6)(l) 
requiring detailed written findings when reclamation is not approved. 
The revised language is similar and corresponds to section 519(d) of 
SMCRA; and therefore, we approve it.

C. Revision to Montana's Statute That Is Not the Same as SMCRA

    Montana statute at MCA 82-4-232(5)(k). Requirement to release 
performance bonds.
    MCA at 82-4-232(k)(5) states that the Department may release the 
bond in whole or in part if it is satisfied the reclamation covered by 
the bond or portion of the bond has been accomplished as required by 
this part according to the following schedule:
    Montana proposes to replace the existing term ``may'' in its 
statute with the more definitive term ``shall.'' The language in both 
SMCRA at Section 519 and the Federal regulations at 30 CFR 800.40(c) 
use the phrase ``the regulatory authority may release all or part of 
the bond * * *.'' (Emphasis added). Montana's proposed statutory change 
does not alter its existing requirements that all required reclamation 
must be completed prior to the release of the bond, the public must 
have been provided with the opportunity to request a hearing to contest 
the pending release, and the performance bond is released either in 
whole or in part only when the entire process is completed. With the 
use of the term ``shall'', Montana provides the operator conducting the 
required reclamation with clear assurance that bond will be released 
once all the requirements are met including the appropriate request by 
the operator. The added assurance that bond release will occur is also 
important to financial institutions providing funds for the reclamation 
bond. Surety bonds have become more difficult to obtain. Montana's 
proposed use of the term ``shall'' clarifies the terms of the bond. We 
have, in the past, approved the use of the term ``shall'' rather than 
``may'' with respect to a State's decision to release all or part of a 
reclamation bond. For the reasons discussed above, we are approving 
Montana's proposed change to MCA 82-4-232(k)(5) to require bond release 
with use of the term ``shall'' in place of the term ``may''.

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IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment but did not receive 
any (Administrative Record No. MT-25-03).

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Montana program (Administrative 
Record Document ID No. MT-25-03). One comment letter was received.
    The Rocky Mountain Regional Office of the U.S. Bureau of Indian 
Affairs replied in an August 1, 2008, letter (Administrative Record No. 
MT-25-04). It states that the proposed changes appear to be very 
beneficial to the program's mission and that ``we have no reason to 
object to the revision being approved.''

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    On July 21, 2008, we asked for concurrence on the amendment 
(Administrative Record Document ID No. MT-25-03). EPA did not respond 
to our request.

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On July 21, 2008, we requested comments on Montana's 
amendment (Administrative Record Document ID No. MT-25-03), but neither 
responded to our request.

V. OSM's Decision

    Based on the above findings, we approve Montana's July 7, 2008, 
amendment.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 926, which codify decisions concerning the Montana 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrates that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. 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

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has 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, and 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 have evaluated the 
potential effects of this rule on Federally recognized Indian Tribes 
and have determined that the 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 rule does not involve or affect Indian Tribes in any way.

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 CFR 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) et seq.).

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. 
3501 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 upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether

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this rule would have a significant economic impact, the Department 
relied upon 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), of 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.
    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 upon the fact that the State submittal 
which is the subject of this rule is based upon 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 upon the fact that the State 
submittal, which is the subject of this rule, is based upon 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.

    Dated: November 25, 2008.
Allen D. Klein,
Regional Director, Western Region.

0
For the reasons set out in the preamble, 30 CFR 926 is amended as set 
forth below:

PART 926--MONTANA

0
1. The authority citation for part 926 continues to read as follows:

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


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2. Section 926.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec.  926.15  Approval of Montana's regulatory program amendments.

* * * * *

 
------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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                              * * * * * * *
July 7, 2008..................  January 5, 2009..  Montana Strip and
                                                    Underground Mine
                                                    Reclamation Act 82-4-
                                                    232(3) and (4), 82-4-
                                                    232 (5)(k), 82-4-
                                                    232(5)(l).
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[FR Doc. E8-31275 Filed 1-2-09; 8:45 am]
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