[Federal Register: October 27, 2003 (Volume 68, Number 207)]
[Proposed Rules]
[Page 61175-61178]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc03-26]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[MT-024-FOR]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
-----------------------------------------------------------------------
SUMMARY: We 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). Montana proposes to make editorial and substantive revisions to
the Montana Strip and Underground Mine Reclamation Act (MSUMRA)
provisions in the Montana Code Annotated (MCA) that pertain to: State
policy and findings concerning mining and reclamation; definitions; the
time required to approve or disapprove minor permit revisions; permit
application requirements, including determinations of probable
hydrologic consequences and land use; requirements to protect the
hydrologic balance; area mining, post-mine land use, and wildlife
enhancement; revegetating disturbed areas; timing of reclamation;
standards for successful revegetation; making vegetation the
landowner's property after bond release; jurisdictional venue in right-
of-entry actions; transfer of revoked permit; and mandamus. The State
also proposes to add new provisions to the MSUMRA for: Revising
applications for permits, permit amendments, and permit revisions;
codifying the changes proposed in the amendment; clauses for
severability, saving, and contingent voidness; and a delayed effective
date for the proposed changes. Montana intends to revise its program to
incorporate the additional flexibility afforded by the revised Federal
regulations and SMCRA, as amended, to provide additional clarification,
and to improve operational efficiency.
This document gives the times and locations that the Montana
program and proposed amendment to that 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 p.m.,
mountain daylight time November 26, 2003. If requested, we will hold a
public hearing on the amendment on November 21, 2003. We will accept
requests to speak until 4 p.m., mountain daylight time, on November 12,
2003.
ADDRESSES: You should mail or hand-deliver written comments and
requests to speak at the hearing to Guy Padgett at the address listed
below.
You may review copies of the Montana program, this amendment, a
listing of any scheduled public hearings, and all written comments
received in response to this document at the addresses listed below
during normal business hours, Monday through Friday, excluding
holidays. You may receive one free copy of the amendment by contacting
OSM's Casper Field Office.
Guy Padgett, Director, Casper Field Office, Office of Surface Mining,
Federal Building, 100 East B Street, Casper, Wyoming 82601-1918, Telephone: (307) 261-6550, e-mail: gpadgett@osmre.gov.
Neil Harrington, Chief, Industrial and Energy Minerals Bureau, Coal and
Uranium Program, Department of Environmental Quality, Phoenix Building,
2209 Phoenix Avenue, P.O. Box 200902, Helena, Montana 59620-0902, Telephone: (406) 444-4973, e-mail: neharrington@state.mt.us.
FOR FURTHER INFORMATION CONTACT: Guy Padgett, Casper Field Office Director; telephone: (307) 261-6550; e-mail: gpadgett@osmre.gov.
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
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 of the Montana program 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. Description of the Proposed Amendment
By letter dated July 29, 2003, Montana sent us a proposed amendment
to its program (SATS MT-024-FOR; Administrative Record No. MT-21-1)
under SMCRA (30 U.S.C. 1201 et seq.). Montana sent the amendment to
include changes made at its own initiative. The full text of the
program amendment is available for you to read at the locations listed
above under ADDRESSES.
The provisions of the Montana Strip and Underground Mine
Reclamation Act that Montana proposes to add and/or revise are as
follows.
82-4-202, Policy--Findings
Making editorial changes to State policy and findings concerning
the environment, mining and reclamation and adding new policy and
findings statements.
82-4-203, Definitions
Adding or revising the terms ``adjacent area,'' ``approximate
original contour,'' ``cropland,'' ``developed water resources,''
``ephemeral drainageway,'' ``fish and wildlife habitat,'' ``forestry,''
``grazing land,'' ``higher or better uses,'' ``hydrologic balance,''
``industrial or commercial,'' ``intermittent stream,'' ``land use,''
``material damage,'' ``pastureland,'' ``perennial stream,''
``reclamation,'' ``recreation,'' ``reference area,'' ``residential,''
``restore or restoration,'' ``surface owner,'' and ``wildlife habitat
enhancement feature''; and recodifying defined terms and making
editorial changes in the wording of several terms.
[[Page 61176]]
82-4-221, Mining Permit Required
Decreasing the time during which the Department of Environmental
Quality (DEQ) must approve or disapprove an application for a minor
permit revision.
82-4-222, Permit Application
Adding specific requirements for a determination of probable
hydrologic consequences, a water monitoring plan, a postmining
topography map, and a description of the permit area's premining
condition, and recodifying parts of the section and making editorial
changes throughout it.
82-4-231, Submission of and Action on Reclamation Plan
Revising the requirement to minimize disturbances to the prevailing
hydrologic balance and making editorial changes throughout the section.
82-4-232, Area Mining Required--Bond--Alternative Plan
Revising the highwall reduction, approximate original contour, and
alternate postmining land use provisions; defining the term
``landowner'' in context of this section, adding provisions for timely
reclamation, wildlife habitat enhancement features, and for replacing
pre-existing facilities, and recodifying parts of the section and
making editorial changes throughout it.
82-4-233, Planting of Vegetation Following Grading of Disturbed Area
Revising provisions for establishing a vegetative cover, for
reestablished plant species, and for reestablished vegetation, and
recodifying parts of the section and making editorial changes
throughout it.
82-4-234, Commencement of Reclamation
Removing the prohibition against disturbing an area seeded as
required by 82-4-233 without DEQ approval and making editorial changes
to the section.
82-4-235, [Renamed ``Determination of Successful Revegetation--Final
Bond Release'']
Adding new provisions for revegetation success, including new
success standards, and recodifying parts of the section and making
editorial changes throughout it.
82-4-236, Vegetation as Property of Landowner
Making editorial changes.
82-4-239, Reclamation
Establishing jurisdictional venue for right-of-entry actions and
making editorial changes.
82-4-250, Operating Permit Revocation--Permit Transfer
Deleting the expiration on this provision.
82-4-252, Mondamus
Making editorial changes.
Montana also proposes to add new sections for: (1) Allowing permit
and reclamation plan application revisions based on the proposed
statutory changes; (2) codification instructions for making the
provisions for revising permit applications part of the MSUMRA; (3)
severability, to ensure that, if some of the new provisions are found
to be invalid, other parts that are severable from them remain in
effect; (4) a savings clause that keeps these statutory changes from
affecting rights and duties that matured, penalties that were incurred,
or proceedings begun before the effective date of these changes; (5)
contingent voidness to void any of these statutory changes if the
Secretary of the Interior disapproves them and for certifying such
disapproval; and for making January 1, 2004, the effective date of
these changes.
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 Montana program.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your comments should be specific, pertain only to the
issues proposed in this rulemaking, and include explanations in support
of your recommendations. We will not consider or respond to your
comments when developing the final rule if they are received after the
close of the comment period (see DATES). We will make every attempt to
log all comments into the administrative record, but comments delivered
to an address other than the Casper Field Office may not be logged in.
Electronic Comments
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: SATS No. MT-024-FOR'' and your name and return address in your
Internet message. If you do not receive a confirmation that we have
received your Internet message, contact the Casper Field Office (307)
261-6550.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public review in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., mountain
daylight time on November 12, 2003. If you are disabled and need
special 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
the hearing. To assist the transcriber and ensure an accurate record,
we request, if possible, that each person who speaks at a 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.
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
[[Page 61177]]
a written summary of each meeting a part of the administrative record.
IV. 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
The Office of Management and Budget (OMB) exempted this rule from
review under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and 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. 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 evaluated the
potential effects of this rule on Federally-recognized Indian Tribes
and have determined that this proposed 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 proposed rule solicits public input
but does not make any decisions or determinations. The State of
Montana, under a Memorandum of Understanding with the Secretary of the
Interior (the validity of which was upheld by the U.S. District Court
for the District of Columbia), does have the authority to apply the
provisions of the Montana regulatory program to mining of some coal
minerals held in trust for the Crow Tribe. OSM is in the process of
consulting with the Crow Tribe on this proposed program amendment.
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 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)).
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.
3507 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 on
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect on a substantial number of small entities.
In making the determination as to whether this rule would have a
significant economic impact, the Department relied on 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), 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 the fact that the State
submittal, which is the subject of this rule, is based on 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 on the fact that the State
submittal, which is the subject of this rule, is based on 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.
[[Page 61178]]
Dated: October 2, 2003.
James F. Fulton,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 03-27045 Filed 10-24-03; 8:45 am]
BILLING CODE 4310-05-P