[Federal Register Volume 86, Number 132 (Wednesday, July 14, 2021)]
[Rules and Regulations]
[Pages 37039-37045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14766]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SATS No. MT-039-FOR; Docket No. OSM-2020-0004; S1D1S SS08011000 
SX064A000 212S180110; S2D2S SS08011000 SX064A000 21XS501520]


Montana Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving an amendment to the Montana abandoned mine land 
(AML) reclamation plan (Montana Plan) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). Montana proposed to 
repeal and replace its existing AML Plan in response to OSMRE's request 
to amend the Plan and to improve the readability and efficiency of the 
document. Montana also submitted a statutory provision enacted by the 
State legislature in 2007 regarding its AML account for OSMRE approval.

DATES: Effective August 13, 2021.

FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Office of Surface 
Mining Reclamation and Enforcement, Dick Cheney Federal Building, 150 
East B Street, Casper, WY 82601-7032. Telephone: (307) 261-6550. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Montana Plan
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations

I. Background on the Montana Plan

    The Abandoned Mine Land Reclamation Program was established by 
Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns 
over extensive environmental damage caused by past coal mining 
activities. The program is funded by a reclamation fee collected on 
each ton of coal that is produced. The money collected is used to 
finance the reclamation of abandoned coal mines and for other 
authorized activities. Section 405 of the Act allows States and Indian 
Tribes to assume exclusive responsibility for reclamation activity 
within the State or on Indian lands if they develop and submit to the 
Secretary of the Interior for approval a program (often referred to as 
a plan) for the reclamation of abandoned coal mines.
    On October 24, 1980, the Secretary of the Interior approved the 
Montana Plan. You can find general background information on the 
Montana Plan, including the Secretary's findings and the disposition of 
comments, in the October 24, 1980, Federal Register (45 FR 70445). 
OSMRE announced in the July 9, 1990, Federal Register (55 FR 28022) the 
Director's decision accepting certification by Montana that it had 
addressed all known coal-related impacts in the State that were 
eligible for funding under the Montana Plan. You can also find later 
actions concerning Montana's AML Program and Plan amendments at 30 CFR 
926.25.

II. Submission of the Amendment

    Under the authority of 30 CFR 884.15, OSMRE directed Montana to 
update its Plan by letter dated March 6, 2019 (Document ID No. OSM-
2020-0004-0003). OSMRE indicated that the Montana Plan required 
revisions to meet the requirements of SMCRA as revised on December 20, 
2006, under the Tax Relief and Health Care Act of 2006 (Pub. L. 109-
432), and in response to changes made to the implementing Federal 
regulations as revised on November 14, 2008 (73 FR 67576) and February 
5, 2015 (80 FR 6435). By letter dated August 4, 2020 (Administrative 
Record No. OSM-2020-0004-0002), Montana sent us an amendment to its 
State Plan under SMCRA (30 U.S.C. 1201 et seq.). Montana's amendment is 
intended to address all required amendments identified in OSMRE's 
letter dated March 6, 2019. The State also proposed additional changes 
as part of the State's initiative to improve the Plan's readability and 
operational efficiency. The State also proposed a statutory addition 
enacted by its legislature in 2007. Montana's amendment will repeal and 
replace the State's existing Abandoned Mine Lands (AML) Plan.
    We announced receipt of the proposed amendment in the December

[[Page 37040]]

17, 2020, Federal Register (85 FR 81862). In the same document, we 
opened the public comment period and provided an opportunity for a 
public hearing or meeting on the adequacy of the amendment. We did not 
hold a public hearing or meeting because none were requested. The 
public comment period ended on January 19, 2021.

III. OSMRE's Findings

    The following are the findings we made concerning Montana's 
amendment under SMCRA and the Federal regulations at 30 CFR 884.14 and 
884.15. We are approving the amendment as described below.
    Montana's Legislature enacted new statutory language at 82-4-1006, 
MCA in 2007 regarding establishment, management, and use of funds in 
the State's Abandoned Mine Reclamation Account (Account). This new 
statute establishes the State's Abandoned Mine Reclamation Account 
within the Federal special revenue fund under existing 17-2-102, MCA. 
The Federal special revenue fund consists of money deposited in the 
State treasury from Federal sources, including trust income, that is 
used for operation of the State government. This is the appropriate 
place to create an account for managing Federal grant funds under 
SMCRA. The applicable sections of 82-4-1006(1) through (3), MCA 
properly identify SMCRA AML Program funding sources, handling of 
interest, uses of funds including specific lands and waters eligible 
for project funding under the AML Program, and allowable reclamation 
activities. The listed eligible lands and waters as well as reclamation 
activities are in accordance with those allowed for certified States 
under SMCRA Section 411. Creation of such an account is required under 
SMCRA Section 401(a), which requires States to establish AML accounts 
for grant funds. Montana has fulfilled that responsibility by 
establishing its Abandoned Mine Reclamation Account.
    According to 82-4-1006(4), MCA money in the Account that is subject 
to restrictions on use pursuant to Federal law, regulation, or grant 
conditions can only be used for the established purposes of the 
applicable Federal provision. Montana's Plan as revised under this 
amendment, as well as existing applicable statutory AML provisions, 
demonstrate that Montana's AML activities are consistent with SMCRA. 
Montana's Plan will prioritize addressing the impacts of historic 
mining and will comply with all grant requirements under 2 CFR part 
200, Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards. However, 82-4-1006(4), MCA ensures 
OSMRE grants, any abandoned mine lands grant funding from other Federal 
agencies, and any potential special future OSMRE funding received will 
be spent in accordance with applicable Federal restrictions.
    Furthermore, 82-4-1006(5), MCA provides that unspent and 
unencumbered money must remain in the account at the end of the fiscal 
year until spent or appropriated by the State legislature. Montana's 
certified AML grants from OSMRE are typically provided on a three-year 
performance period, although this performance period can be extended at 
the State's request. The performance period begins when the AML grant 
agreement is signed. If the State does not expend the funds during the 
course of the performance period they must return the unused funds back 
to OSMRE. However, the State can retain the unspent funds to carry over 
to the next year as long as it is within the performance period.
    Because Montana's statutory language at 82-4-1006, MCA fulfills a 
requirement for the State to create AML accounts for grant funds at 
SMCRA section 401(a), all restrictions on handling and use of funds are 
in accordance with requirements for certified States under SMCRA 
section 411, and all grant funds will be managed in accordance with 2 
CFR part 200, we are approving the addition of 82-4-1006, MCA.

A. Revisions to Montana's Certified AML Plan

    Montana is repealing and replacing its AML Plan with a simplified 
version that is structured similarly to the Federal AML Plan content 
requirements for States at 30 CFR 884.13. Documentation associated with 
Montana's original AML Program approval and subsequent Plan revisions 
was included within the State's previous Plan, leading to a lengthy and 
often duplicative document that was difficult to navigate. Now, Montana 
has made multiple editorial changes for brevity and structural 
alignment with Federal requirements as well as updates consistent with 
the 2006 changes to SMCRA under the Tax Relief and Health Care Act of 
2006 (Pub. L. 109-432) and the associated changes to the implementing 
Federal regulations on November 14, 2008 (73 FR 67576), and February 5, 
2015 (80 FR 6435). In order to simplify the Plan, the new version omits 
large and lengthy documentation that is now either incorporated by 
reference, is no longer applicable to Montana's AML Program, was in 
duplicate copy, was replaced by updated information, or was never 
required to be included in the Plan. All changes are discussed below.
    In order to simplify its Plan, Montana is removing and referencing 
Federal Register documentation regarding its AML Program approval, 
Program and Plan revisions, and certification of completion of all 
known high priority coal hazards. Removal and incorporation by 
reference is appropriate because these documents are not required to be 
in the State Plan.
    Throughout Montana's revised Plan, applicable State and Federal AML 
statutes and regulations are referenced, rather than incorporating the 
full text of those provisions. This approach decreases the overall 
volume of the Plan and prevents the need to further revise the Plan in 
the event of future statutory or regulatory changes. This change 
neither alters the statutes or regulations that apply to Montana nor 
the State's authority or procedures for implementing its certified AML 
Program.
    Montana's revised Plan includes subsections entitled Background on 
Title IV of SMCRA, Background on the Montana Plan, and Purpose of the 
2019 Revision. Inclusion of narrative program summaries is not required 
under the Federal program. However, it does provide background and 
context for the State's certified AML Plan and does not conflict with 
the established AML Plan content requirements at 30 CFR 884.13.
    Montana's revised Plan includes copies of the Governor's 1977 and 
1995 letters, respectively, initially designating the Department of 
State Lands and, then later after an agency reorganization, the 
Department of Environmental Quality, as the agency authorized to 
administer the State AML Program and to receive and administer grants 
under 30 CFR part 886. Because Montana's AML Program is certified, it 
no longer receives grant funding from OSMRE under Part 886, but rather 
receives certified grant funding under 30 CFR part 885. While the 1977 
and 1995 Governor's letters should be replaced with an updated version 
reflecting the State's certified grant recipient status and that it 
receives funding under 30 CFR part 885, the designated State agency 
remains the same as it was prior to certification. Montana has 
incorporated the Governor's letters designating the Department of 
Environmental Quality as the agency authorized to administer the State 
AML Program and receive and administer grants in its Plan as required 
under 30 CFR 884.13(a)(1). Montana may replace these letters with an

[[Page 37041]]

updated version without resubmitting that change to OSMRE as an 
amendment.
    Montana provided an updated June 26, 2020, legal opinion from the 
State Attorney General indicating that the Department of Environmental 
Quality is the designated agency with the authority to conduct the AML 
Program in accordance with all requirements of SMCRA Title IV. Previous 
versions of this opinion have been removed from Montana's Plan because 
they are superseded by the new opinion. Montana has incorporated the 
Attorney General's letter in its Plan as required under 30 CFR 
884.13(a)(2).
    Federal regulations at 30 CFR 884.13(a)(3) require a description of 
the policies and procedures of the State agency, including the purposes 
of the State reclamation program. Montana's Plan includes a Policies 
and Procedures section that provides succinct descriptions of, and 
legal citations for, the purposes of its AML Program consistent with 30 
CFR 884.13(a)(3).
    Montana's revised Plan includes a section entitled Ranking and 
Selection that provides appropriate eligibility and prioritization 
criteria for coal and noncoal hazards based upon updated Federal 
program requirements, as well as the prioritization matrix Montana uses 
to assess and prioritize potential project areas for reclamation. This 
section is consistent with the Plan content requirements of 30 CFR 
884.13(a)(3)(ii), which requires specific criteria, consistent with 
SMCRA, for ranking and identifying projects to be funded.
    Montana's revised Plan includes a Limited Liability and 
Authorization to Proceed subsection under its Ranking and Selection 
section that indicates the State will comply with all applicable 
requirements to extend Limited Liability protections under SMCRA 
Section 405(l) to both coal and noncoal projects. Reclamation projects 
will not be undertaken without first receiving an Authorization to 
Proceed from OSMRE. This is in accordance with SMCRA 405(l) and 
consistent with 30 CFR 874.15 and 875.19, Limited Liability, which now 
provide limited liability coverage to certified State coal and noncoal 
reclamation activities, unless the costs or damages were the result of 
gross negligence or intentional misconduct.
    Montana's revised Plan includes a section entitled Coordination 
With Other Programs that indicates the State will coordinate with other 
agencies and offices including the Natural Resources Conservation 
Service within the Department of Agriculture (formerly known as the 
Soil Conservation Service), Indian Tribes, and OSMRE as required, as 
well as multiple other State and Federal entities. By indicating it 
will coordinate and work with all required agencies, as well as 
additional agencies applicable in the State, Montana's proposed section 
is consistent with the requirements of 30 CFR 884.13(a)(3)(iii).
    To describe how land will be acquired, managed, and disposed of, 
Montana's Plan includes a section entitled Land Acquisition, Management 
and Disposal that incorporates all applicable State and Federal 
statutory sections by reference. This ensures activity will occur in 
accordance with established State and Federal AML Program requirements. 
Therefore, Montana's Plan includes the State's policies and procedures 
for land acquisition, management, and disposition consistent with the 
requirements of 30 CFR 884.13(a)(3)(iv).
    Montana's revised Plan includes a section entitled Reclamation on 
Private Land and Rights of Entry that indicates the State will follow 
guidelines in SMCRA Section 407, 30 CFR part 882, and the provisions in 
82-4-1006, -239, -371, and -445, MCA regarding reclamation work on 
private land. The reference to SMCRA Section 407 is incorrect and OSMRE 
advised Montana that the reference should be to Section 408, Liens. 
Montana intends to correct this reference in its Plan and does not need 
to resubmit that change to OSMRE as an amendment. Montana also 
specifies that consent for entry will be obtained before entering 
private land, but if consent is denied procedures outlined in 30 CFR 
part 877 and 82-4-239, -371, and -445, MCA will be followed. With the 
corrected citation, this section of Montana's Plan accurately provides 
the State's policies and procedures for reclamation on private lands 
and right of entry and is therefore consistent with the Plan content 
requirements of 30 CFR 884.13(a)(3)(v) and (vi).
    Montana's revised Plan includes a section entitled Public 
Participation that indicates which State and Federal laws it will 
comply with pertaining to public participation, notice, and comment 
procedures for AML project activities and in other actions such as 
development of the AML Plan. Because Montana's proposed section 
provides the procedures and processes it will follow to ensure public 
participation and involvement in the State reclamation program and in 
preparation of the State reclamation Plan, this section is consistent 
with 30 CFR 884.13(a)(3)(vii).
    As discussed above, Montana's revised Plan includes sections 
responding to the requirements of 30 CFR 884.13(a)(3)(i) through (vii). 
These sections provide updated descriptions of the State's policies and 
procedures for conducting its AML Program including: The purposes of 
the Program; specific criteria for ranking and identifying projects to 
be funded; coordination of reclamation work between the State and all 
applicable State and Federal agencies; land acquisition; reclamation on 
private land; right of entry; and public involvement in the State 
reclamation program. These sections are simplified from previous 
versions of the Plan to eliminate unnecessary volume. Montana's revised 
Plan is consistent with the AML Plan content requirements of 30 CFR 
884.13(a)(3).
    Federal regulations at 30 CFR 884.13(a)(4)(i) require a description 
of the designated agency's organization and relationship to other State 
entities that may participate in or augment the State's AML reclamation 
abilities. Montana's Plan includes a section entitled Policies and 
Procedures, Department Structure, that provides these descriptions as 
well as an organizational chart depicting the entire Division of 
Environmental Quality and the AML Program's place within it.
    Federal regulations at 30 CFR 884.13(a)(4)(ii) require a 
description of the personnel staffing policies that will govern 
assignments within the AML Program. Montana's revised Plan includes a 
section entitled Staffing and Personnel Policies that references 
applicable personnel and procurement policies such as the Age 
Discrimination Act of 1975 and the Civil Rights Act of 1964 rather than 
incorporating full text versions of these documents, which were 
included in the previous version of Montana's Plan. This change does 
not alter Montana's personnel or procurement procedures but decreases 
the overall volume of the Plan while still providing the information 
required under 30 CFR 884.13(a)(4)(ii).
    Federal regulations at 30 CFR 884.13(a)(4)(iii) require State 
purchasing and procurement systems to meet the requirements of Office 
of Management and Budget Circular A-102, Attachment 0, relating to 
``Grants and Cooperative Agreements with State and Local Governments''. 
Federal grantmaking agencies were previously required to issue a grants 
management common rule to adopt governmentwide terms and conditions for 
grants to States and local governments. As a result, the attachments to 
Circular A-102, including Attachment 0 referenced in 30

[[Page 37042]]

CFR 884.13(a)(4)(iii), have been replaced by the grants management 
common rule at 2 CFR part 200. The Federal regulations have not yet 
been updated to reflect this change; however, it is reflected in the 
State's revised Plan under the section entitled Purchasing and 
Procurement, which indicates its purchasing and procurement policies 
are consistent with 2 CFR part 200. This section provides descriptions 
of purchasing and procurement systems consistent with the requirements 
of 30 CFR 884.13(a)(4)(iii).
    Montana's revised Plan includes a Contractor Eligibility subsection 
under the Purchasing and Procurement section that indicates the State 
will comply with SMCRA section 510(c) and 30 CFR 875.20 in determining 
the eligibility of bidders on AML Program contracts through the 
Applicant Violator System (AVS). By referencing the applicable Federal 
statute and regulation, Montana's revised Plan incorporates all 
applicable contractor eligibility requirements and is therefore 
consistent with the Federal program at SMCRA section 510(c) and 30 CFR 
875.20.
    Federal regulations at 30 CFR 884.13(a)(4)(iv) require a 
description of the accounting system to be used by the agency including 
specific procedures for operation of the AML Fund. Montana's new Plan 
includes a section entitled Accounting System that describes the 
Statewide Accounting, Budgeting and Human Resources System, how it 
conforms to 2 CFR part 200, that funds are safeguarded and accounted 
for, how audits will be conducted and audit recommendations 
implemented, and programmatic and financial reports will be made to 
OSMRE as required.
    As discussed above, Montana's revised Plan includes four sections 
providing revised descriptions of the State's administrative and 
management structure: Department Structure; Staffing and Personnel 
Policies; Purchasing and Procurement; and Accounting System. By 
providing all required descriptions of the administrative and 
management structure of the State AML agency, Montana's revised Plan is 
consistent with all AML Plan content requirements under 30 CFR 
884.13(a)(4).
    Montana's revised Plan includes sections entitled Description of 
Reclamation Activities, Montana AML Problems, and Plan to Address 
Problems that provide general descriptions derived from available data 
of the reclamation activities to be conducted under the State Plan 
including: A map showing the general location of known or suspected 
eligible lands and waters; a description of the problems occurring on 
those lands and waters; and how the Plan proposes to address each of 
the problems. Because Montana is certified, the State has already 
completed all known high priority coal hazards. The revised maps and 
information reflect the State's certified status, identifying historic 
mining areas where AML hazards may occur, as well as general AML hazard 
types and abatement strategies without identifying specific project 
areas. Individual project approval and funding are appropriately 
handled through the Authorization to Proceed process under 30 CFR 
885.16(e). Montana's revised Plan sections entitled Description of 
Reclamation Activities, Montana AML Problems and Plan to Address 
Problems are consistent with the AML Plan content requirements of 30 
CFR 884.13(a)(5) in providing general descriptions of reclamation 
activities to be conducted including maps, descriptions of AML 
problems, and descriptions of hazard abatement strategies.
    Montana's revised Plan includes sections entitled: Geographic Areas 
of Montana; Montana Economic Base; Significant Esthetic, Historic or 
Cultural, and Recreational Values; and Endangered and Threatened Plant, 
Fish, and Wildlife Habitat that provide general descriptions on each 
subject derived from available data on the conditions prevailing in the 
areas of the state where reclamation may occur. Montana has reduced the 
volume of these sections by omitting unnecessary documentation that was 
included in the previous version of its Plan such as detailed 
demographic information, projected population growth rates, graphics 
and charts depicting different population and employment parameters, 
and a map depicting the general topographic regions of the state. The 
omitted items were outdated and not required to be in the Plan. 
Montana's revised Plan provides descriptions of the prevailing 
conditions in the State where reclamation may occur consistent with the 
requirements of 30 CFR 884.13(a)(6).
    Montana's revised Plan includes a section entitled Additional 
Requirement for Certified States and Indian Tribes that provides a 
commitment to address all eligible coal problems found or occurring 
after certification as required under 30 CFR 875.13(a)(3) and 
875.14(b). Montana indicates it will prioritize coal hazards over 
noncoal hazards unless a noncoal hazard site imminently threatens human 
health or the environment, in which case, the State will assess the 
need for taking appropriate action in consultation with OSMRE. By 
committing to give priority to addressing eligible coal problems found 
or occurring after certification as required in 30 CFR 875.13(a)(3) and 
875.14(b), Montana's revised Plan is consistent with the AML Plan 
content requirements of 30 CFR 884.13(b).
    Thus, we find that Montana's Plan, as amended, meets all content 
requirements stipulated under 30 CFR 884.13 while also updating the 
Plan consistently with changes made to the Federal program in 2006, 
2008, and 2015. Montana's revised Plan, therefore, meets the 
requirements of OSMRE's March 6, 2019 letter, and we approve it.

B. Sections Removed From the Montana Plan

    To simplify its revised Plan, Montana removed and did not replace 
extraneous, duplicate, and outdated documentation from the repealed 
version. A brief discussion of major sections no longer included in 
Montana's Plan is as follows:
    Montana has removed its outdated AML hazard inventory, project 
planning, and estimated cost information. As a certified State, all 
high priority coal hazards have now been abated and such detailed 
project planning is neither possible nor required to be incorporated in 
Montana's Plan. Proposed projects are now appropriately identified by 
the State and approved by OSMRE through the Authorization to Proceed 
processes under 30 CFR 885.16(e).
    Montana has removed the full text of several statutory and 
regulatory provisions from its Plan. As noted in the section above, 
many statutes and regulations are now incorporated by reference rather 
than copied in the Plan. However, some are removed and not referenced 
or replaced in the Plan. This action neither alters any existing 
statutes or regulations, which will continue to apply with full force 
and effect, nor does it alter which statutes or regulations apply to 
Montana's certified AML Program. Removals include: State statutes 
establishing the Board of Environmental Review; rules pertaining to 
equal opportunity, handicapped person's preference, and purchasing; and 
Americans With Disabilities Act implementation plans. Similarly, 
Montana has removed some Federal regulation language, including 
previous versions of 30 CFR 884.13 through 884.15 and 30 CFR 926.21, 
from its Plan. This State and Federal language was never required to be 
incorporated in the State Plan. As such, removal is appropriate.
    Montana removed historic records related to approval and revision 
of its

[[Page 37043]]

AML Program such as transmittal memos, records of public meetings, and 
discussion records between the State and OSMRE. Appendix A to the Plan 
includes a chronological list of significant Montana AML Program 
historical events. The removed historical documents are not required to 
be included in the State Plan and removal is therefore appropriate.
    Montana has removed sections entitled The New Interim Bond 
Forfeiture Projects Initiative and The New Bankrupt Surety Bond 
Forfeiture Projects Initiative. To qualify for reclamation under these 
programs, sites must have been mined for coal or affected by coal 
mining processes and the site left in either an un-reclaimed or 
inadequately reclaimed condition (1) between August 4, 1977, and April 
1, 1980 (the date on which the Secretary of the Interior approved 
Montana's regulatory program pursuant to Section 503 of SMCRA), and any 
funds pursuant to a bond or other financial guarantee or from any other 
source that would be available for reclamation and abatement were not 
sufficient to provide for adequate reclamation or abatement at the 
site, or (2) between August 4, 1977, and November 5, 1990, and the 
surety of the mining operator became insolvent during such period, and 
as of November 5, 1990, funds immediately available from proceedings 
relating to such insolvency or from any financial guarantee or other 
source were not sufficient to provide for adequate reclamation or 
abatement of the site. In addition, to qualify for reclamation or 
abatement funding under the initiatives cited above, such sites must 
have been either Priority 1 or 2 sites pursuant to section 403(a)(1) 
and (2) of SMCRA. Because more than 30 years have passed since any site 
could qualify for reclamation under these requirements, this part is no 
longer relevant to the Montana Program. As such, removal of the 
sections related to these initiatives is appropriate.
    Montana is repealing and not replacing its Plan section entitled 
The Grant Set Aside for Future Priority I-III Coal, and AMD Abatement/
Treatment Program Initiative because it no longer applies to the 
Montana Program. The State retains its Trust Fund for future 
expenditures on abandoned mine reclamation (coal or noncoal) and its 
OSMRE Trust (coal only). No new grant funds are placed in these 
accounts and interest earned is considered State funds in accordance 
with 30 CFR 873.12. Montana also has an approved interest-bearing 
account earmarked for the operation and maintenance of the Belt Water 
Treatment Plant authorized via letter from OSMRE dated July 21, 2010. 
However, this is not a set-aside account under SMCRA section 402(g)(6) 
and was properly funded using Prior Balance Replacement and Certified 
in Lieu Funds. Although Montana is removing this section from its Plan, 
its historically approved and created accounts remain in existence and 
are properly administered through the State's normal operations and 
overseen by OSMRE through routine oversight and grant monitoring 
processes.
    Montana is removing its Emergency Reclamation Responsibility 
section previously approved under SMCRA sections 401(c)(5) and 410 and 
30 CFR 877.14, and 30 CFR part 879. This program only applied to 
emergency coal hazards and is no longer applicable or necessary under 
Montana's certified AML Program.
    All content removal support Montana's goals of streamlining and 
updating its Plan consistently with updated Federal requirements as 
required by OSMRE though its March 6, 2019 letter sent under the 
authority of 30 CFR 884.15. We therefore approve these changes.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, but none were 
received.

Federal Agency Comments

    Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSMRE solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Montana Plan on October 14, 2020 
(Administrative Record No. OSM-2020-0004-0004). We did not receive any 
comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    OSMRE solicited EPA's comments on the proposed amendment 
(Administrative Record No. OSM-2020-0004-0004). The EPA did not respond 
to our request.

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

    OSMRE solicited comments on the proposed amendment from the SHPO 
(Administrative Record No. OSM-2020-0004-0004) and the ACHP 
(Administrative Record No. OSM-2020-0004-0005). SHPO did not respond to 
our request. By email dated December 4, 2020 (Administrative Record No. 
OSM-2020-0004-0006), ACHP indicated its belief that the revised Plan 
did not have any involvement with OSMRE's National Historic 
Preservation Act (NHPA) Section 106 review process in Montana, and 
therefore ACHP does not have any comments on this Plan. OSMRE agrees 
with ACHP's assessment that the revised Plan does not alter OSMRE's 
NHPA Section 106 review process in Montana.

V. OSMRE's Decision

    Based on the above findings, we are approving Montana's AML Plan 
amendment that was submitted on August 4, 2020.
    To implement this decision, we are amending the Federal 
regulations, at 30 CFR part 926, which codify decisions concerning the 
Montana Plan. In accordance with the Administrative Procedure Act, this 
rule will take effect 30 days after the date of publication. Generally, 
SMCRA requires that each State with an AML program must have an 
approved State regulatory program pursuant to section 503 of the Act. 
Section 503(a) of the Act requires that the State's program demonstrate 
that the State has the capability of carrying out the provisions of the 
Act and meeting its purposes. SMCRA requires consistency of State and 
Federal standards.

VI. Procedural Determinations

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not affect a taking of private property or 
otherwise have taking implications that would result in private 
property being taken for government use without just compensation under 
the law. Therefore, a takings implication assessment is not required. 
This determination is based on an analysis of the corresponding Federal 
regulations.

Executive Orders 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. Pursuant to OMB guidance, dated October 
12, 1993, the approval of State program amendments is exempted from OMB 
review under Executive Order 12866. Executive Order 13563, which 
reaffirms and supplements Executive Order 12866, retains this 
exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by

[[Page 37044]]

Section 3(a) of Executive Order 12988. The Department has determined 
that this Federal Register document meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and regulations to minimize litigation; and that 
the agency's legislation and regulations provide a clear legal standard 
for affected conduct, rather than a general standard, and promote 
simplification and burden reduction. Because section 3 focuses on the 
quality of Federal legislation and regulations, the Department limited 
its review under this Executive Order to the quality of this Federal 
Register document and to changes to the Federal regulations. The review 
under this Executive Order did not extend to the language of the 
Montana Plan or to the Plan amendment that the State of Montana 
submitted.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Instead, this rule approves an amendment to the Montana Plan submitted 
and drafted by that State. OSMRE reviewed the submission with 
fundamental federalism principles in mind as set forth in sections 2 
and 3 of the Executive order and with the principles of cooperative 
federalism as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As 
such, pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and 
(7)), OSMRE reviewed Montana's amendment to ensure that it is ``in 
accordance with'' the requirements of SMCRA and ``consistent with'' the 
regulations issued by the Secretary pursuant to SMCRA.

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal government and Tribes. 
Therefore, consultation under the Department's tribal consultation 
policy is not required. The basis for this determination is that our 
decision is on the Montana program that does not include Tribal lands 
or regulation of activities on Tribal lands. Tribal lands are regulated 
independently under the applicable, approved Federal program.

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

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking 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 
significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. We are not required to 
provide a detailed statement under the National Environmental Policy 
Act of 1969 (NEPA) because this rule qualifies for a categorical 
exclusion under the U.S. Department of the Interior Departmental 
Manual, part 516, section 13.5(B)(29).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus 
standards in its regulatory activities unless to do so would be 
inconsistent with applicable law or otherwise impractical. OMB Circular 
A-119 at p. 14. This action is not subject to the requirements of 
section 12(d) of the NTTAA because application of those requirements 
would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

    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 corresponding 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 corresponding 
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 an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 926

    Intergovernmental relations, Surface mining, Underground mining.

David A. Berry,
Regional Director, Interior Unified Regions 5, 7-11.

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

[[Page 37045]]

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. Section 926.25 is amended in the table by adding an entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  926.25  Approval of Montana abandoned mine land reclamation plan 
amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
   Original amendment submission date      Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
August 4, 2020..........................  July 14, 2021..............  Repeal and replace Certified AML Plan in
                                                                        response to OSMRE 884 Letter and State
                                                                        initiative streamlining of Plan. Updates
                                                                        Plan to be consistent with changes to
                                                                        Federal program and extends limited
                                                                        liability protection for certain coal
                                                                        and noncoal reclamation projects.
                                                                       Addition of 82-4-1006, MCA.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2021-14766 Filed 7-13-21; 8:45 am]
BILLING CODE 4310-05-P