[Federal Register Volume 88, Number 150 (Monday, August 7, 2023)]
[Proposed Rules]
[Pages 52086-52088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16849]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SATS No. MT-043-FOR; Docket ID: OSM-2023-0008; S1D1S SS08011000 
SX064A000 231S180110; S2D2S SS08011000 SX064A000 23XS501520]


Montana Regulatory Program

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

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

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are announcing receipt of a proposed amendment to the Montana 
regulatory program (hereinafter, the Montana program) under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). During 
the 2023 legislative session, the Montana legislature passed Senate 
Bill 392 (SB 392), amending the Montana Strip and Underground Mine 
Reclamation Act (MSUMRA) as well as the Montana Code Annotated (MCA). 
Accordingly, Montana submitted this proposed amendment to OSMRE on its 
own initiative. Montana's proposal adds a provision for the equal 
application of court costs to the prevailing party in contested case 
proceedings by a court or administrative agency that issues a decision. 
The proposal also amends the MCA to reference the equal application of 
court costs in section1. Finally, the proposal includes codification 
instructions, a severability clause, an effective date, and an 
applicability statement. This document gives the times and locations 
that the Montana program and this proposed amendment to the program are 
available for your inspection, the comment period during which you may 
submit written comments on the amendment, and the procedures that we 
will follow for the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4:00 
p.m., M.D.T, September 6, 2023. If requested, we may hold a public 
hearing or meeting on the amendment on September 1, 2023. We will 
accept requests to speak at a hearing until 4:00 p.m., M.D.T. on August 
22, 2023.

ADDRESSES: You may submit comments, identified by SATS No. MT-043-FOR, 
by any of the following methods:
     Mail/Hand Delivery: OSMRE, Attn: Jeffrey Fleischman, P.O. 
Box 11018, 100 East B Street, Room 4100, Casper, Wyoming 82602.
     Fax: (307) 261-6552.
     Federal eRulemaking Portal: The amendment has been 
assigned Docket ID: OSM-2023-0008. If you would like to submit 
comments, go to http://www.regulations.gov. Follow the instructions for 
submitting comments.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than the ones 
listed above will be included in the docket for this rulemaking and 
considered.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the Montana 
program, this amendment, a listing of any scheduled public hearings or 
meetings, and all written comments received in response to this 
document, you must go to the address listed below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the amendment by contacting OSMRE's Casper 
Field Office or the full text of the program amendment is available for 
you to read at www.regulations.gov.

Attn: Jeffrey Fleischman, Field Office Director, Office of Surface 
Mining Reclamation and Enforcement, 100 East B Street, Casper, Wyoming 
82602, Telephone: (307) 261-6550, Email: [email protected]

    In addition, you may review a copy of the amendment during regular 
business hours at the following location:

Attn: Dan Walsh, Mining Bureau Chief, Coal and Opencut Mining Bureau, 
Department of Environmental Quality, P.O. Box 200901, Helena, MT 59601-
0901, Telephone: (406) 444-6791, Email: [email protected]

[[Page 52087]]


FOR FURTHER INFORMATION CONTACT: 
Attn: Jeffrey Fleischman, Field Office Director, Office of Surface 
Mining Reclamation and Enforcement, 100 East B Street, Casper, Wyoming 
82602, Telephone: (307) 261-6550, Email: [email protected]

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

I. Background on the Montana Program

    Subject to OSMRE's oversight, section 503(a) of SMCRA 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 approved, State program includes, 
among other things, State laws and regulations that govern surface coal 
mining and reclamation operations in accordance with SMCRA and 
consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and 
(7).
    On the basis of these criteria, the Secretary of the Interior 
approved the Montana program on October 24, 1980. You can find 
background information on the Montana program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Montana program in the October 24, 1980, Federal 
Register (45 FR 70445). You can also find later actions concerning the 
Montana program and program amendments at 30 CFR 926.25.

II. Description of the Proposed Amendment

    By letter dated June 22, 2023 (Administrative Record No. MT-043-
01), Montana sent us an amendment to its program under SMCRA (30 U.S.C. 
1201 et seq.). We found Montana's proposed amendment to be 
administratively complete on June 27, 2023. Montana submitted this 
proposed amendment to us, of its own volition, following the passage of 
Montana Senate Bill 392 (SB 392) during the 2023 legislative session. 
SB 392 amends the MSUMRA as well as Sec.  82-4-251 and Sec.  82-4-252 
of the MCA. SB 392 also adds four contingencies that apply to the 
proposed amendments.
    Under section 1 of SB 392 Montana proposes to add a provision to 
MCA, section 1, for the equal application of court costs to the 
prevailing party in contested case proceedings by a court or 
administrative agency that issues a decision pursuant to Sec.  82-4-2. 
This proposed section allows that a court or administrative agency may 
award the prevailing party reasonable costs of litigation, including 
filing fees, attorney fees, and witness costs. Under this proposal a 
court or administrative agency may not consider the identity of the 
party when awarding costs. This includes the permittee, permit 
applicant, agency, public interest litigant, or other party to the 
action. The proposal applies equally to all parties in an action and 
places the burden of proof and persuasion for awarding court costs on 
the requesting party. SB 392 does not state where section 1 will be 
codified in the MCA. This will be done by the legislature later; 
however, section 1 will be an integral part of the MCA.
    Next, the proposal amends Sec.  82-4-251(7) and Sec.  82-4-252(5) 
to reference the equal application of court costs in section 1. Sec.  
82-4-251(7), which discusses the awarding of court costs, strikes out 
the word ``Whenever'' and adds the language ``Subject to the provisions 
of [section 1], whenever . . .''. Sec.  82-4-252(5), which also 
discusses the awarding of court costs, strikes out the language ``. . . 
to any party whenever the court determines that the award is 
appropriate . . .'' and adds ``. . . pursuant to [section 1] . . .''.
    Lastly, SB 392 adds four contingencies to section 1 and the 
proposed amendments to Sec.  82-4-251 and Sec.  82-4-252. The 
contingencies will not be codified into the MCA but apply to section 1 
as proposed and the amended sections of the MCA. Section 4 of SB 392 
contains codification instructions which state that [section 1] is 
intended to be codified as an integral part of Sec.  82-4-2 and the 
provisions of Sec.  82-4-2 apply to [section 1]. Section 5 is a 
severability clause and states that if a part of SB 392 found invalid, 
any part(s) found valid will remain in effect. Section 6 of SB 392 is 
an effective date, which states that the act is effective on passage 
and approval. Lastly, section 7 of SB 392 is an applicability clause, 
which states that SB 392 applies to court actions filed on or after the 
effective date of SB 392.
    The full text of the program and/or plan amendment is available for 
you to read at the locations listed above under ADDRESSES or at 
www.regulations.gov.

III. Public Comment Procedures

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

Electronic or Written Comments

    If you submit written or electronic comments on the proposed rule 
during the 30-day comment period, they should be specific, confined to 
issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent State or 
Federal laws or regulations, technical literature, or other relevant 
publications.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than those 
listed (see ADDRESSES) will be included in the docket for this 
rulemaking and considered.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information, may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., MDT. on 
August 22, 2023. If you are disabled and need reasonable accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

[[Page 52088]]

Public Meeting

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

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review and Executive 
Order 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 and/or AML plan amendments is 
exempted from OMB review under Executive Order 12866. Executive Order 
13563, which reaffirms and supplements Executive Order 12866, retains 
this exemption.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSMRE for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment. We 
conclude our review of the proposed amendment after the close of the 
public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the rulemaking process and include them 
in the final rule.

List of Subjects in 30 CFR Part 926

    State regulatory program approval, State-federal cooperative 
agreement, Required program amendments.

David A. Berry,
Regional Director, Unified Regions 5, 7-11.
[FR Doc. 2023-16849 Filed 8-4-23; 8:45 am]
BILLING CODE 4310-05-P