[Federal Register Volume 78, Number 31 (Thursday, February 14, 2013)]
[Rules and Regulations]
[Pages 10507-10512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03065]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SATS No. MT-032-FOR; Docket ID No. OSM-2011-0011]


Montana Regulatory Program

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

ACTION: Final rule.

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SUMMARY: We are issuing a final decision on an amendment to the Montana 
regulatory program (the Montana program) under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA or the Act). We are not 
approving the amendment. Montana proposes changes to the Montana Strip 
and Underground Mine Reclamation Act (MSUMRA) that differentiate 
between coal beneficiation and coal preparation plants. Montana revised 
its program to clarify ambiguities and improve operational efficiency.

DATES: Effective Date: February 14, 2013.

FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Casper Field 
Office Director, 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 
(OSMRE's) Findings
IV. Summary and Disposition of Comments
V. OSMRE'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 concerning Montana's program and program 
amendments at 30 CFR 926.15, 926.16, and 926.30.

II. Submission of the Proposed Amendment

    By letter dated June 7, 2011, Montana sent us a proposed amendment 
to its program (SATS number: MT-032-FOR, Administrative Record Docket 
ID No. OSM-2011-0011) under SMCRA (30 U.S.C. 1201 et seq.). Montana 
submitted the amendment to include changes made to the MSUMRA as a 
result of the Montana Legislature's 2011 passage of a Senate Bill (SB 
297) relating to coal beneficiation. Montana sent the amendment to 
include changes made at its own initiative.
    We announced receipt of the proposed amendment in the October 17, 
2011, Federal Register (76 FR 64045). 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-29-11; Administrative Record Document ID No. OSM-2011-0011-
0001). We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on November 16, 2011. We 
received four public comments and four Federal agency comments 
(discussed under ``IV. Summary and Disposition of Comments'').
    During our review of Montana's submittal and the comments received, 
we identified concerns with the amendment proposal including its newly 
proposed statutory definition of ``Coal beneficiation plant'' at 
Montana Code Annotated (MCA) Section 82-4-203(9), as well as proposed 
revisions to its currently approved statutory definitions of ``Coal 
preparation plant'' at MCA Section 82-4-203(11); ``Operation'' at MCA 
Section 82-4-203(34); ``Operator'' at MCA Section 82-4-203(35); ``Strip 
mining'' at MCA Section 82-4-203(48) (b); and ``Underground mining'' at 
MCA Section 82-4-203(52). We notified Montana of these concerns by 
letter dated February 14, 2012 (Administrative Record No. MT-29-15; 
Administrative Record Document ID No. OSM-2011-0011-0011).
    We delayed final rulemaking to afford Montana the opportunity to 
submit new material to address the deficiencies. Montana responded in a 
letter dated March 14, 2012, that all of the proposed changes are 
legislative amendments to the MSUMRA and because they are changes in 
statute and not rule, the Montana Department of Environmental Quality 
(DEQ) has no authority to amend them (Administrative Record No. MT-29-
16; Administrative Record Document ID No. OSM-2011-0011-0012). As a 
result, Montana stated that it will not be submitting revised 
amendments or draft proposed changes in response to our February 14, 
2012, letter. Therefore, we are proceeding with the final rule Federal 
Register document.

III. OSMRE's Findings

    30 CFR 732.17(h)(10) requires that State program amendments meet 
the criteria for approval of State programs set forth in 30 CFR 732.15, 
including that the State's laws and regulations are in accordance with 
the provisions of the Act and consistent with the requirements of 30 
CFR Part 700. In 30 CFR 730.5, OSMRE defines ``consistent with'' and 
``in accordance with'' to mean (a) with regard to SMCRA, the State laws 
and regulations are no less stringent than, meet the minimum 
requirements of, and include all applicable provisions of the Act and 
(b) with regard to the Federal regulations, the State laws and 
regulations are no less effective than the Federal regulations in 
meeting the requirements of SMCRA.
    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at

[[Page 10508]]

30 CFR 732.15 and 732.17. We are not approving the amendment as 
described below.

A. Minor Revisions to Montana's Statutes

    Montana proposes minor wording and editorial changes to its 
currently approved statutory definitions of ``Coal conservation plan'' 
at MCA Section 82-4-203(9); ``Imminent danger to the health and safety 
of the public'' at MCA Section 82-4-203(25); ``Minable coal'' at MCA 
Section 82-4-203(32); ``Prospecting'' at MCA Section 82-4-203(41) (b); 
and ``Residential'' at MCA Section 82-4-203(46).
    These minor wording and editorial changes do not impact the 
effectiveness of the current statutes and do not adversely affect other 
aspects of the program. OSMRE was prepared to approve them. However, in 
its March 14, 2012, letter Montana explained that as a matter of state 
law OSMRE must approve Chapter 408 as a whole before any portion of it 
can take effect [SB 297 was published as Chapter 408, Laws of 2011 by 
the Secretary of State].
    Specifically, Montana referenced Section 2 of Chapter 408 which 
provides:

    [This act] is effective on the date that the office of surface 
mining reclamation and enforcement publishes notice in the Federal 
Register that [this act] is approved pursuant to 30 CFR 732.17.

Therefore, Montana advised that the minor grammatical changes will not 
become effective if OSMRE disapproves any amendments made by Chapter 
408. During our review of Montana's submittal, we found that the 
proposed amendments to the definitions of ``coal preparation plant,'' 
``operation,'' ``operator,'' ``strip mining,'' and ``underground 
mining'' are less effective than Federal regulations or less stringent 
than SMCRA.
    Based on Montana's explanation above and the ``contingent 
voidness'' clause in Section 2 of Chapter 408, we are not approving the 
proposed minor wording and editorial changes.

B. Revisions to Montana's Statutes That Are Not the Same as the 
Corresponding Provisions of SMCRA and the Federal Regulations

1. Definition of ``Coal Beneficiation Plant'' at Montana Code Annotated 
(MCA) Section 82-4-203(9)
    At its own initiative, Montana proposes a new definition for ``Coal 
beneficiation plant'' at Montana Code Annotated (MCA) Section 82-4-
203(9) to mean ``a commercial facility where coal is subject to coal 
preparation that is not operated, owned, or controlled by the mine 
operator of the mine providing the coal.'' While there are no direct 
Federal counterpart provisions, the definitions of ``Surface coal 
mining operations'' at SMCRA Section 701(28)(A) and 30 CFR 700.5, and 
the definitions of ``Coal preparation'' and ``Coal preparation plant'' 
at 30 CFR 701.5 all speak to the activities of chemical or physical 
processing, cleaning, concentrating, or other processing or preparation 
of coal. Similarly, Montana's definitions of ``Coal preparation'' and 
``Coal preparation plant'' include coal processing and preparation.
    In its submittal, Montana expresses its intent to exclude coal 
beneficiation plants from permitting and regulation under the MSUMRA. 
Montana's proposed definition of ``Coal beneficiation plant'' does not 
sufficiently distinguish between coal preparation and coal 
beneficiation plants for purposes of regulation under SMCRA and the 
MSUMRA. Specifically, the proposed definition references ``a commercial 
facility where coal is subject to coal preparation.'' However, 
Montana's currently approved definition of ``Coal preparation plant'' 
at MCA Section 82-4-203(11) also references ``a commercial facility 
where coal is subject to coal preparation.'' Montana does propose to 
revise its definition of ``Coal preparation plant'' by specifying that 
coal preparation is ``in connection with a strip mine or underground 
coal mine.'' Nevertheless, Montana's definitions for ``Coal 
beneficiation plant'' and ``Coal preparation plant'' both reference a 
commercial facility where coal is subject to coal preparation and as 
such are largely synonymous.
    In identifying the relationship necessary for coal preparation to 
be ``in connection with'' a coal mine, the principle stated by OSMRE in 
a May 5, 1983, Federal Register (48 FR 20393) preamble to the 
definition of ``surface coal mining operations'' should be referenced. 
In that preamble, OSMRE stated its belief that the phrase in Section 
701(28)(A) of the Act and 30 CFR 700.5 ``in connection with'' should be 
interpreted broadly. OSMRE also cited examples of facilities that could 
be considered to be ``in connection with'' a coal mine, including 
``facilities which receive a significant portion of their coal from a 
mine; facilities which receive a significant portion of the output from 
a mine; facilities which have an economic relationship with a mine; or 
any other type of integration that exists between a facility and a 
mine.'' Further, OSMRE stated that a ``facility need not be owned by a 
mine owner to be in connection with a mine.''
    Therefore, ownership, control, or operation by someone other than 
the mine operator is not the only criterion that determines whether a 
coal beneficiation facility or coal preparation plant is ``in 
connection with'' a coal mine. OSMRE amended its regulations, as 
published in the Federal Register (November 22, 1988, 53 FR 47384), to 
clarify the circumstances under which coal preparation plants located 
outside the permit area of a mine are subject to the performance 
standards and permitting requirements of SMCRA. The associated preamble 
clarified that off-site coal preparation is subject to regulation under 
SMCRA only when it is conducted in connection with a coal mine. No 
definition of the term ``in connection with'' is included in the rule. 
OSMRE stated in the preamble that any attempt to further define this 
phrase would unduly restrict the discretion that the regulatory 
authority must have in order to make valid decisions about the 
applicability of SMCRA in individual cases. In the same preamble, OSMRE 
stated that the elements of (1) geographic proximity and (2) functional 
relationship are proper factors to consider in evaluating whether an 
off-site coal preparation plant is subject to regulation under SMCRA. 
As a result of a subsequent U.S. District Court decision, OSMRE 
published a notice in the Federal Register (January 8, 1993, 58 FR 
3466) to clarify that geographic proximity may not be the decisive 
factor in deciding whether to regulate an off-site coal preparation 
plant. To allow proximity to be the decisive factor would render ``in 
connection with'' equivalent to ``at or near.'' That is not the 
Secretary's intent. Instead, the Secretary's intent is to provide 
regulatory authorities appropriate guidance and discretion in deciding 
which off-site coal processing plants to regulate.
    Since the term ``in connection with'' is not defined in the rule, 
OSMRE clarified in the Federal Register (November 22, 1988, 53 FR 
47384) several factors that should be considered in order to determine 
whether a coal preparation plant located outside the permit area of a 
mine is operated in connection with a coal mine, thus constituting a 
surface coal mining operation and subject to the performance standards 
and permitting requirements of SMCRA. Specifically, in addition to 
geographic proximity and functional relationship, other factors, 
including economic and operational relationship and point of ultimate 
use are to be considered by regulatory

[[Page 10509]]

authorities when evaluating whether such facilities are subject to 
regulation under SMCRA.
    Accordingly, we find that Montana's proposed definition is too 
vague to exclude coal beneficiation plants from permitting and 
regulation under SMCRA and the MSUMRA. In particular, proposed MCA 
Section 82-4-203(9) references ``coal preparation'' and, in addition to 
relying solely on ownership and control considerations, fails to ensure 
that coal beneficiation plants have no functional or economic 
relationship to the mine(s) providing the coal and are the point of end 
use of the coal. Consequently, we are not approving Montana's proposed 
definition of ``Coal beneficiation plant'' as it is less stringent than 
SMCRA and less effective than the Federal regulations.
    Moreover, we are not approving Montana's proposed statutory changes 
that derive from its disapproved definition of ``Coal beneficiation 
plant'' or their associated recodification. Specifically, we are not 
approving Montana's proposed revisions to its currently approved 
definition of ``Coal preparation plant'' at MCA Section 82-4-203(11); 
Montana's proposed revisions to its currently approved definition of 
``Operation'' at MCA Section 82-4-203(34); Montana's proposed revision 
to its currently approved definition of ``Operator'' at MCA Section 82-
4-203(35); Montana's proposed revisions to its currently approved 
definition of ``Strip mining'' at MCA Section 82-4-203(48)(b); and 
Montana's proposed revisions to its currently approved definition of 
``Underground mining'' at MCA Section 82-4-203(52).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the original amendment proposal (76 
FR 64045; Administrative Record Docket ID No. OSM-2011-0011-0001). We 
received four public comments.
    Westmoreland Resources, Inc. commented in a July 6, 2011, email 
message that it supports the changes to MSUMRA resulting from passage 
and approval of SB 297, and encouraged OSM to approve the program 
amendment (Administrative Record Document ID No. OSM-2011-0011-0003).
    We received a comment letter from a private citizen on November 15, 
2011 (Administrative Record Document ID No. OSM-2011-0011-0010). The 
letter contained both general and narrative comments in opposition to 
SB 297. The commenter noted that the definition of a coal beneficiation 
plant relates only to the ownership of the ``commercial facility,'' and 
opined that apparently the authors of SB 297 and its proposed 
amendments to the Montana program thought that if a coal beneficiation 
plant is owned by someone other than the mine operator, it would have 
no effect on anything for which the mine owner/operator is responsible 
under MSUMRA and SMCRA.
    The commenter also stated that Section 507(a) of SMCRA dealing with 
application requirements makes it quite plain that anyone having an 
interest in property being permitted must be listed whether ownership 
or lease, and Section 508 indicates that there must be a reclamation 
plan for those lands, and that would include every activity, including 
measures to be taken during mining and reclamation to assure the 
protection of surface and ground water systems, rights of present users 
to water, and several other things. As a result, the commenter 
expresses a concern that if a company can avoid reclaiming areas where 
some sort of ``beneficiation'' may have taken place and may now be 
polluted in the soil or water, it can dodge an expensive cleanup.
    Next, the commenter asserted that SB 297 is trying to get coal 
gasification exempted from control if it is in a mine permit. The 
commenter stated that SMCRA is quite plain that damaging the hydrologic 
balance in a mine site is not acceptable. The commenter also referenced 
30 CFR Part 828 which concerns special environmental protection 
performance, reclamation and design standards for in situ processing of 
coal and noted that water is particularly important in that part.
    The commenter went on to claim that SB 297 could be a vehicle to 
allow most of a mine permit surface to be sold for a ``beneficiation'' 
plant that would result in the removal of all bonding and reclamation 
problems because the operator would cease to own most of it. The 
commenter continued that if one attempted to operate on a mine permit, 
there would be questions as to where the waste from the beneficiation 
plant would be stored or disposed of. The commenter then questioned how 
the effects of processed water on the hydrologic balance in the area 
would affect the mine operator's compliance with SMCRA, and asked what 
kind of chemicals would be used in the beneficiation process and where 
would they be stored or disposed of? The commenter concluded by 
asserting that SB 297 is an attempt to avoid complying with the 
reclamation laws, and the modifications to MSUMRA do not comply with 
SMCRA.
    Notwithstanding the ancillary concerns expressed above regarding 
hydrologic balance and waste storage and disposal, we refer the 
commenter to Finding No. III.B.1. for a detailed explanation as to why 
we are not approving Montana's proposed amendment.
    We also received a comment letter from the Montana Environmental 
Information Center (MEIC) on November 16, 2011 (Administrative Record 
Document ID No. OSM-2011-0011-0008). The MEIC opposed Montana's 
proposed changes to the MSUMRA and asserted that the myriad of proposed 
changes would violate Federal law by eliminating important regulation 
of coal beneficiation plants, strip mines, and underground mines. The 
MEIC further stated that the Montana proposal attempts to differentiate 
coal preparation plants by ownership and asserts that the definition of 
``surface coal mining operations'' in section 701(28) of SMCRA does not 
allow for such arbitrary differentiation. The MEIC continued that 
because the definition does not differentiate operations based on 
ownership, the proposal is clearly in conflict with the Federal 
requirements and should be rejected.
    Next, the MEIC asserted that Montana's proposed change to the 
definition of ``operation'' contains a broad exclusion of at least 
three different types of coal preparation facilities, railroads, roads, 
and equipment that would leave many communities with no regulation of 
these potentially dangerous activities. The MEIC then stated that the 
definition change clearly flies in the face of SMCRA and should be 
rejected.
    Finally, the MEIC contended that Montana's attempt to exclude all 
beneficiation activities from regulation through proposed changes to 
the definitions of ``operator,'' ``strip mining,'' and ``underground 
mining'' is counter to the intent of SMCRA and the definition of 
``surface coal mining operations.'' For the reasons stated above, the 
MEIC urged OSMRE to reject Montana's proposal.
    In response to the concerns expressed above, we refer the MEIC to 
Finding No. III.B.1. for a detailed explanation as to why we are not 
approving Montana's proposed amendment.
    Lastly, we received a comment letter from the Northern Plains 
Resource Council (NPRC) on November 16, 2011 (Administrative Record 
Document ID No. OSM-2011-0011-0009). The NPRC also opposed Montana's 
proposed changes to the MSUMRA and asserted

[[Page 10510]]

that they eliminate important oversight responsibilities of OSMRE in 
relation to coal preparation, strip mining, and underground mining and 
should be rejected as they clearly violate the intent of the Federal 
law. The NPRC continued that the proposed amendment's newly-created 
definition of ``coal beneficiation plant'' exempts these facilities 
from regulation under the MSUMRA and removes the Montana DEQ's 
jurisdictional authority to regulate them. The NRPC went on to state 
that the intent of SB 297 was to create a regulatory distinction 
between a coal preparation facility that is owned, operated, or 
controlled by the mine operator supplying the coal and a ``coal 
beneficiation plant'' that has a potential different owner, operator, 
or controller which results in an arbitrary exclusion under the law. 
The NPRC then referenced the definition of ``surface coal mining 
operations'' in section 701(28) of SMCRA and asserted that because it 
does not make a distinction between ownership, operation, or control of 
any such activities being connected to the mine operator, the 
distinction made in the Montana program would appear to be 
inconsistent.
    Next, the NPRC commented that the proposed amendment attempts to 
change the definition of ``operation'' so that these facilities would 
no longer be subject to regulation under the Montana regulatory 
program, and would create a far reaching exemption under law that would 
leave significant gaps in oversight for the development and reclamation 
of such activities. The NRPC then reiterated that such facilities 
clearly fall under the definition of ``surface coal mining operations'' 
in SMCRA and asserted that allowing this exemption would be 
inconsistent with Federal law.
    The NRPC then cited the Federal regulations at 30 CFR 785.21 to 
argue that all coal preparation facilities, whether within the mining 
permit area or not, are subject to regulation under SMCRA. 
Additionally, the NRPC maintained that the Federal regulations 
governing the development of in situ processing and gasification 
clearly indicate that these facilities are to be regulated under the 
provisions of SMCRA. The NRPC concluded by strongly encouraging OSMRE 
to reject the proposed amendment as it is in clear violation with SMCRA 
and the Federal regulations.
    In response, we acknowledge the concerns expressed above and refer 
the NPRC to Finding No. III.B.1. for a detailed explanation as to why 
we are not approving Montana's proposed amendment.

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 ID No. MT-29-03). We received comments from three Federal 
Agencies.
    The Bureau of Land Management (BLM) commented in a July 8, 2011 
letter (Administrative Record Document ID No. OSM-2011-0011-0005), the 
U.S Geological Survey (USGS) commented in a July 15, 2011 letter 
(Administrative Record Document ID No. OSM-2011-0011-0006), and the 
Mine Safety and Health Administration (MSHA) commented in a July 29, 
2011 letter (Administrative Record Document ID No. OSM-2011-0011-0007).
    The BLM commented that one of the proposed changes to the MSUMRA 
would differentiate a coal beneficiation plant from a coal preparation 
plant by way of ownership, control, or operations by someone other than 
the mine operator. The BLM continued that the effect of the change 
would be that the DEQ would no longer have regulatory authority through 
MSUMRA over facilities that meet the definition of ``coal beneficiation 
plant'' even though it performs the same processes as a coal 
preparation plant. The BLM then referenced the definition of ``Surface 
Coal Mining Operations'' at 30 CFR 700.5 and ``the cleaning, 
concentrating, or other processing or preparation of coal.'' The BLM 
also quoted Sec.  701.11(a), which requires ``any person who conducts 
surface coal mining operations on non-Indian and non-Federal lands on 
or after 8 months from the date of approval of a State program or 
implementation of a Federal program shall have a permit issued pursuant 
to the applicable State or Federal program.'' On this basis, the BLM 
stated it appears that the operation of a coal beneficiation plant or 
coal preparation plant is to be regulated under SMCRA and the Federal 
regulations at 30 CFR Part 700. The BLM concluded by stating that the 
proposed change to the MSUMRA would render it less stringent than SMCRA 
and should not be allowed.
    We agree with the BLM's concerns and refer it to Finding No. 
III.B.1. above for a detailed explanation as to why we are not 
approving Montana's proposed amendment.
    The USGS commented that, as a non-regulatory agency, it does not 
have a standing position on the issue and could not provide one.
    The MSHA stated its concurrence with the proposed revisions to the 
MSMURA and has no further comment.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i), OSMRE requested comments on the 
amendment from EPA (Administrative Record ID No. MT-29-03). 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 June 29, 2011, we requested comments on Wyoming's 
amendment (Administrative Record ID No. MT-29-03). The SHPO responded 
on July 5, 2011, and commented that apparently the DEQ previously 
exercised regulatory authority over coal beneficiation and coal 
preparation facilities prior to the proposed changes (Administrative 
Record Document ID No. OSM-2011-0011-0004). The SHPO also explained 
that OSMRE's correspondence does not address whether or not it 
otherwise has regulatory authority under SMCRA or the National Historic 
Preservation Act for what would be termed coal beneficiation under 
MSUMRA, and noted that the proposed changes would seem to constrict the 
actions or undertakings under which SMCRA would/should otherwise apply. 
The SHPO then stated that 36 CFR Part 800 does not distinguish 
regulatory authority or responsibility on the basis of ownership, but 
by permitting, approval, license, funding or indirect jurisdiction by a 
Federal agency. The SHPO also commented that if, but for the proposed 
changes, OSMRE has regulatory responsibility under SMCRA, then it would 
seem the proposed amendment would pertain to cultural resources insofar 
as a section 106 type review to 36 CFR Part 800 standards would be 
foregone. The SHPO concluded by stating that it is not in a position to 
determine that responsibility as Sec.  800.3(a) states the Federal 
agency official shall determine whether an action is an undertaking 
using the criteria of Sec.  800.16(y).
    In response, we acknowledge the aforementioned concerns and refer 
the SHPO to Finding No. III.B.1. above for a detailed explanation as to 
why we are not approving Montana's proposed amendment.

[[Page 10511]]

V. OSMRE's Decision

    Based on the above findings, we are not approving Montana's June 7, 
2011, 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 the State's program to demonstrate 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.

Effect of OSMRE's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an 
approved State program be submitted to OSM for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSM. In the 
oversight of the Montana program, we will recognize only the statutes, 
regulations and other materials we have approved, together with any 
consistent implementing policies, directives and other materials. We 
will require Montana to enforce only approved provisions.

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 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.

[[Page 10512]]

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: June 26, 2012.
Allen D. Klein,
Director, Western Region.

    Editorial Note: This document was received at the Office of the 
Federal Register on February 6, 2013.


    For the reasons set out in the preamble, 30 CFR part 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.


0
2. Add Sec.  926.12 to read as follows:


Sec.  926.12  State program provisions and amendments not approved.

    (a) The amendment submitted by letter dated June 7, 2011, Docket ID 
No. OSM-2011-0011, which proposed changes to the Montana approved 
program as a result of the Montana Legislature's 2011 passage of a 
Senate Bill (SB 297) relating to coal beneficiation is not approved.
    (b) [Reserved]

[FR Doc. 2013-03065 Filed 2-13-13; 8:45 am]
BILLING CODE 4310-05-P