[Federal Register Volume 74, Number 2 (Monday, January 5, 2009)]
[Rules and Regulations]
[Pages 217-219]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31275]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-028-FOR; Docket ID No. OSM-2008-0018]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving an amendment to the Montana regulatory
program (the ``Montana program'') under the Surface Mining Control and
Reclamation Act of 1977 (``SMCRA'' or ``the Act''). Montana proposed
revisions to its statute as discussed in SUPPLEMENTARY INFORMATION, II.
Proposed Amendment, to clarify ambiguities and improve operational
efficiency.
DATES: Effective Date: January 5, 2009.
FOR FURTHER INFORMATION CONTACT: Casper Field Office Director Jeffrey
Fleischman, Telephone: 307/261-6550, Internet address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM's)
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Montana Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Montana program on April 1, 1980. You can
find background information on the Montana program, including the
Secretary's findings, the disposition of comments, and conditions of
approval in the April 1, 1980, Federal Register (45 FR 21560). You can
also find later actions at 926.15, 926.16, and 926.30.
II. Submission of the Proposed Amendment
By letter dated July 7, 2008, Montana sent us an amendment to its
program (Administrative Record No. MT-025-01, under SMCRA (30 U.S.C.
1201 et seq.). Montana sent the amendment for changes made at its own
initiative. The provisions of the Montana Strip and Underground Mine
Reclamation Act that Montana proposed to revise are within MCA 82-4-
232, Area mining required--bond--alternative plan.
We announced receipt of the proposed amendment in the August 26,
2008, Federal Register 73 FR 50265. In the same document, we opened the
public comment period and provided an opportunity for a public hearing
or meeting on the amendment's adequacy (Administrative Record No. MT-
25-05). We did not hold a public hearing or meeting because no one
requested one. The public comment period ended on September 25, 2008.
We received comments from one Federal agency.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment.
A. Minor Revisions to Montana's Statute
Montana proposed minor wording changes to the following previously-
approved Montana Strip and Underground Mine Reclamation Act:
MCA 82-4-232(3) and (4). Area mining required--bond--alternative
plan.
Because these changes are minor, we find that they will not make
Montana's statute less stringent than SMCRA.
B. Revisions to Montana's Statute That Have the Same Meaning as the
Corresponding Provisions of SMCRA
Montana proposed revisions to its statute at MCA 82-4-232(6)(l)
requiring detailed written findings when reclamation is not approved.
The revised language is similar and corresponds to section 519(d) of
SMCRA; and therefore, we approve it.
C. Revision to Montana's Statute That Is Not the Same as SMCRA
Montana statute at MCA 82-4-232(5)(k). Requirement to release
performance bonds.
MCA at 82-4-232(k)(5) states that the Department may release the
bond in whole or in part if it is satisfied the reclamation covered by
the bond or portion of the bond has been accomplished as required by
this part according to the following schedule:
Montana proposes to replace the existing term ``may'' in its
statute with the more definitive term ``shall.'' The language in both
SMCRA at Section 519 and the Federal regulations at 30 CFR 800.40(c)
use the phrase ``the regulatory authority may release all or part of
the bond * * *.'' (Emphasis added). Montana's proposed statutory change
does not alter its existing requirements that all required reclamation
must be completed prior to the release of the bond, the public must
have been provided with the opportunity to request a hearing to contest
the pending release, and the performance bond is released either in
whole or in part only when the entire process is completed. With the
use of the term ``shall'', Montana provides the operator conducting the
required reclamation with clear assurance that bond will be released
once all the requirements are met including the appropriate request by
the operator. The added assurance that bond release will occur is also
important to financial institutions providing funds for the reclamation
bond. Surety bonds have become more difficult to obtain. Montana's
proposed use of the term ``shall'' clarifies the terms of the bond. We
have, in the past, approved the use of the term ``shall'' rather than
``may'' with respect to a State's decision to release all or part of a
reclamation bond. For the reasons discussed above, we are approving
Montana's proposed change to MCA 82-4-232(k)(5) to require bond release
with use of the term ``shall'' in place of the term ``may''.
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IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment but did not receive
any (Administrative Record No. MT-25-03).
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the Montana program (Administrative
Record Document ID No. MT-25-03). One comment letter was received.
The Rocky Mountain Regional Office of the U.S. Bureau of Indian
Affairs replied in an August 1, 2008, letter (Administrative Record No.
MT-25-04). It states that the proposed changes appear to be very
beneficial to the program's mission and that ``we have no reason to
object to the revision being approved.''
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.).
On July 21, 2008, we asked for concurrence on the amendment
(Administrative Record Document ID No. MT-25-03). EPA did not respond
to our request.
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On July 21, 2008, we requested comments on Montana's
amendment (Administrative Record Document ID No. MT-25-03), but neither
responded to our request.
V. OSM's Decision
Based on the above findings, we approve Montana's July 7, 2008,
amendment.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 926, which codify decisions concerning the Montana
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrates that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of State and Federal
standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 CFR U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C) et seq.).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether
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this rule would have a significant economic impact, the Department
relied upon the data and assumptions for the counterpart Federal
regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), of the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 926
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 25, 2008.
Allen D. Klein,
Regional Director, Western Region.
0
For the reasons set out in the preamble, 30 CFR 926 is amended as set
forth below:
PART 926--MONTANA
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1. The authority citation for part 926 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
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2. Section 926.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 926.15 Approval of Montana's regulatory program amendments.
* * * * *
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Original amendment submission Date of final
date publication Citation/description
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* * * * * * *
July 7, 2008.................. January 5, 2009.. Montana Strip and
Underground Mine
Reclamation Act 82-4-
232(3) and (4), 82-4-
232 (5)(k), 82-4-
232(5)(l).
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[FR Doc. E8-31275 Filed 1-2-09; 8:45 am]
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