Montana Regulatory Program

 
CONTENT
Federal Register, Volume 84 Issue 205 (Wednesday, October 23, 2019)
[Federal Register Volume 84, Number 205 (Wednesday, October 23, 2019)]
[Rules and Regulations]
[Pages 56689-56696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22945]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-035-FOR; Docket ID: OSM-2013-0009; S1D1S SS08011000
SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]
Montana Regulatory Program
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 regulatory program
(the Montana program) under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA or the Act). Montana proposed revisions and
additions to the Montana statute, known as the Montana Code Annotated
(MCA) about permit application requirements, coal prospecting
requirements, annual reporting requirements for coal permittees, and
lawsuits related to damages to water supplies. Montana also proposed to
revise its regulations, the Administrative Rules of Montana (ARM), to
incorporate changes about a new short form coal prospecting permit
process.
DATES: The effective date is November 22, 2019.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Chief, Denver
Field Division, Telephone: (307) 261-6550. Email address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
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
[[Page 56690]]
reclamation operations on non-Federal and non-Indian lands within its
borders by demonstrating that its program includes, among other things,
state laws and regulations that govern surface coal mining and
reclamation operations in accordance with the Act 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 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). Additionally, the removal of the
conditions of approval of the Montana program can be found in the
February 11, 1982, Federal Register (47 FR 6266). You can also find
later actions concerning Montana's program and program amendments at 30
CFR 926.12, 926.15, 926.16, and 926.30.
II. Submission of the Proposed Amendment
    By letter dated August 20, 2013, Montana sent OSMRE a proposed
amendment to its regulatory program (Administrative Record Document ID
No. OSM-2013-0009-0002) under SMCRA (30 U.S.C. 1201 et seq.). The
proposed revisions were in response to changes made to the Montana
Strip and Underground Mine Reclamation Act and the ARM that were a
result of Montana Senate Bill 286 and subsequent Montana Senate Bill
92, which were approved at the 2011 and 2013 Montana legislative
sessions.
    We announced receipt of the proposed amendment in the October 25,
2013, Federal Register (78 FR 63911). 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. OSM-2013-0009-0001). We did not hold a public hearing or meeting,
as neither were requested. The public comment period ended on November
25, 2013. We did not receive any public comments but did receive
comments from two Federal agencies.
III. OSMRE'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 Statutes or Regulations
    Montana proposed minor wording, editorial, punctuation,
grammatical, citation, and cross-reference changes to the following
previously approved rules and statutes. No substantive changes to the
text of these regulations were proposed. Because these changes are
minor, we find that they will not make Montana's statute or regulations
inconsistent with Federal statute or regulations, less stringent than
SMCRA, or less effective than the corresponding Federal regulations.
The specific, minor changes are as follows:
     MCA 82-4-227(8), related to the applicant violator system;
minor editorial change; counterpart Federal provision found at SMCRA
515(b)(12) (30 U.S.C. 1265(b)(12);
     MCA 82-4-237(1), (1)(a), (1)(b), (1)(c), (2), and (3),
related to the operator filing annual reports; minor changes to statute
with no Federal counterpart;
     ARM 17.24.1002(3), related to information and monthly
reports; minor citation and cross-reference modifications; no Federal
counterpart;
     ARM 17.24.1003(1), related to renewal and transfer of
permits; minor changes to regulation with no Federal counterpart;
     ARM 17.24.1005(2)(d), related to drill holes; minor
grammatical corrections; counterpart Federal regulations are found at
30 CFR 816.13, 816.14, and 816.15; and
     ARM 17.24.1016(3), related to bond requirements for
drilling operations; minor changes to regulation with no Federal
counterpart.
B. Revisions to Montana's Statutes and Regulations That Are in
Accordance With and No Less Effective Than the Corresponding Provisions
of SMCRA and the Federal Regulations
    Montana proposed revisions to the following statutes or regulations
containing language that is in accordance with and no less stringent
than SMCRA. In addition, Montana's proposed revisions are no less
effective than the corresponding sections of the Federal regulations.
We are therefore approving the following changes:
     MCA 82-4-222(1)(k), (1)(l), (2), (2)(l), (2)(m), and (8),
Permit application--application revisions; [SMCRA Sec. 507(b)(14) (30
U.S.C. 1257(b)(14)];
     MCA 82-4-226(1), (2), (7), (7)(b)(i), (7)(b)(ii), and (8),
Prospecting permit; [SMCRA Sec. 512 (30 U.S.C. 1262) and 30 CFR 772];
     MCA 82-4-253(3)(d), Suit for damage to water supply;
[SMCRA Sec. 717 (30 U.S.C. 1307)];
     ARM 17.24.1001(1)(b), (1)(c), (2), (2)(h)(iii)(F), (2)(q),
and (7), related to permit requirements; [30 CFR 772.12 and 772.13];
and
     ARM 17.24.1019, Permit Requirement--Short Form; [30 CFR
772.11].
1. MCA 82-4-222(1)(k), (1)(l), (2), (2)(l), (2)(m), and (8)
    The changes to MCA 82-4-222 are associated with general
requirements that must be met upon submittal of a permit application to
conduct coal mining. Montana's statute contains language that
corresponds to SMCRA section 507(b) (30 U.S.C. 1257(b)) and the Federal
regulations at 30 CFR 773.6, 779.24, 779.25, 783.24, and 783.25. The
new language does not render Montana's statute less stringent than
SMCRA nor less effective than the Federal regulations.
    The change at MCA 82-4-222(1)(k) concerns the number of copies of
geologic cross sections that must be submitted for a permit
application. Montana proposes to change the number from ``two copies
each of two sets'' to ``two sets.'' The counterpart SMCRA section
507(b)(14) (30 U.S.C. 1257(b)(14)) and the regulations at 30 CFR
779.25(a) and 783.25(a) do not specify the number of copies required,
merely stating that the application shall include cross sections, maps,
and plans showing elevations and locations of test borings and core
samplings.
    The change at MCA 82-4-222(1)(l) pertains to the type of newspaper
that the permittee may use to give public notification of a permit
application, significant permit revision, or permit renewal. Montana is
changing the type of newspaper from a daily newspaper to any newspaper;
however, the requirement that the notification must be published in the
newspaper once a week for four consecutive weeks is unchanged. SMCRA
sections 507(b)(6) and 513 (30 U.S.C. 1257(b)(6) and 30 U.S.C. 1263,
respectively), and Federal regulations at 30 CFR 773.6 state that the
notification must be published once per week for four weeks, but does
not specify whether the newspaper must be published daily.
Additionally, Montana is adding language that clarifies that the
applicant must provide this public notification in a newspaper that is
published in the locality of the proposed operation and that it will be
published again within the State if an initial announcement was
published outside of Montana. Federal requirements also mandate that
publication in a local newspaper of general circulation in the locality
of the proposed mining operation must occur.
    The change to MCA 82-4-222(2) outlines the requirement that a
prospective permit applicant must submit maps as part of the permit
[[Page 56691]]
application package, permit renewal, or significant permit revision.
Montana proposes to simplify the requirement in this subsection from
two copies of each map to an unspecified number of ``maps.'' The
counterpart Federal regulations located at 30 CFR 779.24, 779.25,
783.24, and 783.25 similarly do not specify how many copies of each map
must be submitted, only that the maps must be submitted.
    Montana's modification to MCA 82-4-222(2)(l) concerns the
requirement for a permit application to include information on pre-
mining vegetation. Montana is proposing to eliminate references to
``varieties'' of plants and replace these references to ``species'' of
plants and trees. In botanical nomenclature, variety is a taxonomic
rank below species. In practice, it may be difficult and unnecessary to
inventory existing vegetation at this level of specificity. Providing
vegetation species information, including abundance per acre and
general distribution, provides the regulatory authority with sufficient
information to characterize the premining vegetation community
composition and structure. Montana is also deleting language indicating
that the required vegetation information will include, but not be
limited to, grasses, shrubs, legumes, forbs, and trees. The revised
provision is interpreted as requiring descriptions of all vegetation
life forms without such enumeration.
    The counterpart Federal regulations at 30 CFR 779.19 and 783.19
employ the terms ``vegetative types'' and ``plant communities'' and
also grant the regulatory authority discretion on whether to require
information on these topics in an application. Although there is no
specific statutory basis to refer to, SMCRA section 515(b)(19) (30
U.S.C. 1265(b)(19)) requires that a permanent vegetative cover of the
same seasonal variety native to the area must be established on
reclaimed lands with limited exceptions. Implicit in provision is a
requirement to collect information on pre-mining vegetation. OSMRE
finds that this minor modification to MCA 82-4-222(2)(l) should have no
effect on the implementation of this law because sufficient pre-mining
vegetation information will be collected and provided in the permit
application. This information, along with soils, climate, and land use
information, will assist the regulatory authority in assessing the
appropriateness of proposed revegetation plans and in predicting the
potential for reestablishing vegetation upon final reclamation.
    The change to MCA 82-4-222(2)(m) pertains to the certification and
notarization of maps that are submitted as part of a permitting
application. Montana is removing the language that previously
stipulated the wording of professional certifications, and now simply
requires certification by a professional engineer or professional land
surveyor licensed as provided by Title 37, Chapter 67 of the MCA. SMCRA
section 507(b)(14) (30 U.S.C. 1257(b)(14)) requires maps to be
certified by a professional engineer or a professional geologist with
assistance from experts in related fields, such as land surveying and
landscape architecture. There are no implementing Federal regulations
that specify the language to be included in certifications of these
professionals.
    The change to MCA 82-4-222(8) pertains to the public availability
of a permit application, significant revision, or permit renewal.
Specifically, Montana is adding language to the existing statute to
allow this information to be made available at any accessible public
office or facility approved by the regulatory authority. Previously,
the public review file was required to be held by the clerk and
recorder at the courthouse of the county where a major portion of the
mining is to occur. Montana's change adds flexibility to the provision,
while ensuring permit applications are publicly available at
appropriate locations approved by the Montana Department of
Environmental Quality (DEQ). SMCRA section 507(e) (30 U.S.C. 1257(e))
affords similar flexibility, providing that the application be publicly
available either through the recorder at the courthouse of the county
or an appropriate public office approved by the regulatory authority
where the mining is to occur.
2. MCA 82-4-226(1), (2), (7), (7)(b)(i), (7)(b)(ii), and (8)
    Montana is amending MCA 82-4-226 to modify coal-prospecting
procedures to allow for a new type of prospecting permit when the
prospecting is conducted to determine the location, quantity, and
quality of coal that is outside an area designated as unsuitable, does
not remove more than 250 tons of coal, and does not substantially
disturb the land surface. The effect of the modifications to Montana's
coal prospecting statute causes the process to have three tiers of
prospecting regulation, rather than the existing two tiers.
    The first tier is submittal of a notice of intent (NOI) to gather
baseline data, identify access routes, locate drill hole locations and
other relevant information outside an area designated as unsuitable for
coal mining. Coal removal is not authorized under an NOI in Montana.
The new second tier is referred to as the short form prospecting
permit, which would be used for prospecting outside of areas designated
as unsuitable for mining and where prospecting is conducted to
determine the location, quantity, or quality of coal, but would not be
used to authorize removal of more than 250 tons. The third tier is
Montana's existing prospecting permit process, which the State will
continue to follow in instances when prospecting activities will
substantially disturb the land surface, remove more than 250 tons of
coal, or be conducted within an area designated as unsuitable for coal
mining. The performance standards about coal prospecting are codified
in ARM Title 17, Chapter 24, Subchapter 10, and many of these standards
are also being revised under this rulemaking. All prospecting
activities discussed here are to occur outside of a valid coal mining
permit area. When prospecting activities occur within a valid mining
permit, those activities are appropriately regulated under the mining
permit and a separate NOI or prospecting permit is unnecessary.
    Montana is modifying MCA 82-4-226(1) to clarify that the standard
prospecting permit requirements identified therein do not apply to
activities conducted under either an NOI or the new short form permit
processes. These exclusions clarify the distinction between the
requirements for prospecting activities that will involve more
significant land disturbances and therefore require a standard long
form permit process and the requirements for prospecting activities
that involve less significant surface disturbances and will therefore
require either a short form permit or NOI.
    Changes to subsection 7(a) further clarify that coal prospecting,
which is not conducted on lands designated as unsuitable for mining, is
not conducted to determine the characteristics of a coal deposit, and
does not remove more than 250 tons of coal, requires an NOI rather than
a prospecting permit. Montana's NOI process allows access to lands to
gather baseline data or for planning purposes where very little surface
disturbance is anticipated. A prospector may then apply for either a
short or long form prospecting permit to remove coal and characterize
the coal seam. Language deleted from existing subsection (7)(a) removes
the ability to conduct prospecting to determine the location, quality,
or quantity of a mineral deposit under an NOI. This type of activity
now requires a short form prospecting permit.
[[Page 56692]]
    The new short form prospecting permit process is outlined in
subsections 7(b) and (8). The short form permit process applies to coal
prospecting that is conducted to determine the characteristics of a
coal deposit, does not significantly disturb the land surface, does not
remove more than 250 tons of coal, and is conducted in an area that is
not designated as unsuitable for coal mining. The addition of this
section causes Montana to go from a two-tiered process to a more
comprehensive, three-tiered process related to coal prospecting, as
discussed above. Montana's short form prospecting permit is applicable
to activities that would be regulated under an NOI under the approved
Montana program.
    Drilling operations, associated disposal pits, and groundwater
monitoring wells will not be considered ``substantial surface
disturbance'' for the purpose of this part and may be regulated under
the short form permit process. Comparison of this proposed statutory
basis for a definition of ``substantially disturb'' to the Federal
definition located in 30 CFR 701.5 does not yield any conflicts that
would render the Montana revisions less effective than the Federal
regulations. The Federal definition of ``substantially disturb'' at 30
CFR 701.5 does not explicitly include or mention disturbance caused by
exploration drilling or water monitoring well installation. The Federal
definition indicates that substantial disturbance involves removal of
more than 250 tons of coal, the same criterion that would invoke a more
involved permitting process under the Montana program. Montana's use of
the term ``associated disposal pits'' refers to drilling mud pits that
constitute a disturbance less than that of the drilling pad, generally
about one quarter to one half of an acre.
    New section MCA 82-4-226(8) specifies the requirements for the new
short form permits, including application contents, DEQ review and
decision timeframes and procedures, public notification and comment
procedures, and the approval processes. Short form permits must include
specific contact information, a narrative description of the proposed
area or a map of the area showing drill hole locations, occupied
dwellings, roads, topography, hydrologic features, and pipelines. The
application must also include documentation of the legal right to
prospect, a statement of the period of intended prospecting, and a
description of methods for prospecting and for reclaiming disturbances.
    Under new subsection (8)(b), the DEQ will notify the applicant
whether the application is complete and preliminarily acceptable within
10 working days of receipt. New subsection (8)(c) provides the
applicant five working days to respond to any identified deficiencies.
New subsection (8)(d) provides that when DEQ notifies the applicant
that the application is complete, it will also indicate the required
bond amount. New subsection (8)(e) indicates that after receipt of the
completeness determination, the applicant will publish an advertisement
in a newspaper of general circulation in the locality of the proposed
prospecting activity describing the application and identifying where
the public may review its contents and how to submit comments. The
public is allowed 10 days from the date of publication to submit
comments. Under new subsection (8)(f), the DEQ will issue its decision
to accept or reject the application within five days of the close of
the public comment period if no comments were received and within 10
days if comments are received. DEQ may identify necessary changes to
the bond amount at that time.
    New subsection (8)(g) indicates that short form permits are subject
to subsections (3) through (6). This clarifies the exemption in
subsection (1), which otherwise might be interpreted as excluding both
NOI and short form prospecting permits from all requirements of
subsections (1) through (6). Subsections (3) through (6) include
requirements, such as performance bonds, a one-year renewable permit
term, filing of progress reports, and other required, relevant
information, which exceed the requirements for this type of exploration
under Federal statute and regulation and the Montana program.
    MCA 82-4-226(8) sets out substantively more requirements for the
short form permitting process than the Federal counterpart provisions,
which regulate this type of exploration activity under an NOI.
Montana's short form prospecting requirements are no less stringent
than SMCRA and no less effective than the implementing regulations.
Specifically, OSMRE finds that the changes to MCA section 82-4-226 are
no less stringent than SMCRA section 512 (30 U.S.C. 1262) and no less
effective than the Federal regulations governing coal exploration at 30
CFR part 772.
3. MCA 82-4-253(3)(d)
    Montana is amending its statute to make clear that coal mine
operators are liable for replacing water supplies that have been
diminished, interrupted, or contaminated by mining, regardless of
whether surface or underground mining methods are employed. Although
MCA 82-4-253 clearly applies to surface and underground mining
operations, previous wording at subsection (3)(d) appeared to apply
only to surface mines. This change clarifies the scope of the existing
statute, which is consistent with and no less stringent than SMCRA and
no less effective than the Federal regulations.
4. ARM 17.24.1001(1)(b), (2), (2)(h)(iii)(F), (2)(q), and (7)
    Montana passed Senate Bill 286 to allow for a new type of coal
prospecting permit, which caused Montana to have three tiers of
prospecting processes depending on the specific conditions of the
operation. ARM section 17.24.1001 formerly pertained to the only level
of prospecting permit requirements in Montana, and is now being amended
to acknowledge the addition of the short form permit process.
Prospecting conducted under an NOI is not considered a permit and is
not subject to ARM 17.24.1001.
    Montana's change at ARM 17.24.1001(1)(b) adds language indicating
that prospecting permit requirements apply where activities will be
conducted to determine the location, quality, or quantity of the
mineral using drilling methods. Drilling operations conducted to
characterize the coal seam that remove less than 250 tons of coal and
occur outside an area designated as unsuitable for mining would be
subject to the short form permit requirements. This revision
acknowledges that the short form is still a permit under Montana's
program and that if drilling operations remove more than 250 tons of
coal they would be regulated under the standard permit process. There
are no Federal provisions that describe standards for prospecting or
exploration operations analogous to Montana's program. SMCRA and the
regulations promulgated thereunder regulate exploration operations that
remove less than 250 tons of coal from lands outside those areas
designated as unsuitable for mining under NOI requirements. These types
of operations carry a lesser regulatory burden in terms of reporting,
mapping, and bonding. Furthermore, exploration operations that remove
more than 250 tons of coal or occur within lands designated unsuitable
for mining under an exploration permit analogous to Montana's existing
long form prospecting permit are regulated pursuant to SMCRA and the
regulations promulgated thereunder. The Montana program applies
prospecting permit
[[Page 56693]]
requirements to more types of activities than required under
corresponding Federal exploration requirements as enumerated in 30
U.S.C. 1262.
    The modification at ARM 17.24.1001(2) adds an exception to the
listed permit requirements for drilling operations, which are subject
to the short form permit requirements under MCA 82-4-226(8). This
change clarifies the distinction between the standard prospecting
permit and the new short form prospecting permit under MCA 82-4-226(8).
    Montana's change at ARM 17.24.1001(2)(h)(iii)(F) is an editorial
correction that fixes a reference to fish and wildlife habitat and
species information that must be provided in maps.
    The modification to ARM 17.24.1001(2)(q) corrects a reference to
public notification requirements that must be satisfied upon submittal
of a coal prospecting permit. This regulation now correctly refers the
reader to ARM 17.24.303(1)(x), which concerns the filing of a newspaper
advertisement and proof of publication.
    Montana's existing ARM 17.24.1001(7) concerns the transfer of coal
prospecting activities to a mining permit when such activities become
part of a mining operation. Montana correctly incorporates reference to
ARM 17.24.1019, which is the new short form permitting process, and
also corrects a previously inaccurate cross-reference to ARM
17.24.308(1)(b) for mine permit operations plans.
5. ARM 17.24.1019
    Montana is incorporating a short form permitting process for coal
prospecting operations that are outside an area designated unsuitable
for mining, do not remove more than 250 tons of coal, and do not
substantially disturb the natural land surface. Montana's short form
prospecting permit covers the types of activities that the Federal
statute and regulations would capture under an NOI. Specifically, the
Federal regulations at 30 CFR 772.11 dictate that the analogous
requirements apply outside of a mining permit area. Although Montana's
provision does not indicate that it applies only outside of a mining
permit area, exploration activities within a valid mining permit would
be regulated under the mining permit. The Montana DEQ does not intend
to require a short form exploration permit within mining permit areas.
    The content requirements for short form permits are primarily
codified under Montana's statute at MCA 82-4-226(8). New regulation
language at ARM 17.24.1019 reiterates the types of activities are
regulated under the short form, stipulates that the short form must be
filed with the DEQ on a provided form, and that the application must be
reviewed and approved prior to the initiation of operations.
    Montana will apply all parts of ARM 17.24 subchapter 10, except ARM
17.24.1001(1), (2), and (4) through (6), 17.24.1006(2), and (3)(b) and
(c), 17.24.1007, 17.24.1009, 17.24.1014, and 17.24.1018, to short form
prospecting permits. These are the standard long form permitting and
NOI requirements, which appropriately do not apply to short form
prospecting operations.
    All the Montana proposed statute and regulation changes listed
above contain language that is no less stringent than and no less
effective than SMCRA and the corresponding Federal regulations.
Furthermore, Montana's changes are not inconsistent with SMCRA and
other provisions of the Federal regulations. Consequently, we are
approving the amendments.
C. Revisions to Montana's Rules With No Corresponding Federal
Regulations
    Montana's proposed revisions to the following rules contain
language that has no Federal counterpart, but also is no less stringent
than SMCRA and is no less effective than the Federal regulations. We
are therefore approving these changes.
1. ARM 17.24.1018(1)(b), (2), (4), (5)(a), (6), (7), (8), and (9)
    Montana is changing ARM 17.24.1018, Notice of Intent to Prospect,
to reflect the distinction between NOIs and the new short form
prospecting permits. Language deleted from ARM 17.24.1018(1)(b) removes
the ability to conduct prospecting activities for the purpose of
determining the location, quality, or quantity of the coal without
substantially disturbing the land surface under an NOI. These
activities must now be conducted under a short form prospecting permit.
Language added to ARM 17.24.1018(1)(b) indicates that activities such
as locating drill holes and identifying access routes are appropriately
conducted under an NOI. Although the Federal program does not make a
similar distinction, this language is consistent with Montana's
statutory authority under MCA 82-4-226. The Federal program allows coal
extraction through drilling to occur under an NOI, while Montana's
program now requires a short form permit for such activities.
    Changes to ARM 17.24.1018(2) clarify that the existing regulation
pertains only to NOIs and that NOIs must meet the requirements of ARM
17.24.1018(3) and (4). The change to ARM 17.24.1018(4) replaces
``permit'' with ``notice of intent'' because this section now only
applies to NOIs. Changes to ARM 17.24.1018(5) delete the reference to
prospecting permit requirements at ARM 17.24.1001(2)(a) through (i),
and (2)(l) through (n) and replace these references with NOI
requirements for maps specifying base layers, topography, hydrologic
features, surface ownership, roads and access routes, locations of
proposed monitoring facilities, and locations of pipelines and occupied
dwellings. The Federal program does not delineate a tier of
exploration, which involves only planning and monitoring activities
without authority to construct roads or remove coal to characterize the
seam. It is therefore not possible to compare the two programs in this
regard. However, Montana's new language is similar to the mapping
requirements for Federal NOIs under 30 CFR 772.11(b)(3) with the
exception that drill holes and trenches and proposed roads would not be
authorized under an NOI in Montana and as such are not included within
the NOI map requirements.
    Changes to ARM 17.24.1018(6) specify that the requirements of that
part pertain only to the extent that the requirements are applicable to
the proposed prospecting operation. Coal removal is not authorized
under an NOI in Montana; therefore, surface disturbances would include
only activities such as access road development or installation of
monitoring equipment. The existing provision includes multiple cross
references, which apply to operations involving coal removal or
activities on protected lands. Because such activities would not be
authorized under an NOI, Montana's revisions clarify that only the
referenced provisions which are applicable to the proposed prospecting
operation would be applied.
    Changes to ARM 17.24.1018(7) are editorial in nature and clarify
that when an applicant submits an NOI, the DEQ has 30 days to review
and notify the person whether the NOI meets all applicable
requirements.
    Changes to ARM 17.24.1018(8) clarify that the requirement to have a
copy of the NOI on-site pertains to all NOIs rather than only those
that substantially disturb the land surface.
    Changes to ARM 17.24.1018(9) update the list of prospecting permit
requirements that do not apply to activities conducted under an NOI.
These changes are appropriate due to the distinction between the types
of activities authorized under NOIs and
[[Page 56694]]
prospecting permits and the requirements specified under each.
    Because there are no Federal counterpart regulations to this
portion of Montana's rules and because the use of the NOI process
before issuing a prospecting permit is not inconsistent with provisions
of the Federal program, OSMRE finds Montana's proposed changes to ARM
17.24.1018 to be no less effective than the Federal program.
IV. Summary and Disposition of Comments
Public Comments
    We asked for public comments on the amendment (Administrative
Record Document ID No. OSM-2013-0009-0001), but did not receive any.
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. On August 28,
2013, we requested comments on Montana's amendment (Administrative
Record Document ID No. OSM-2013-0009-0007).
    We received one response letter dated October 25, 2013, from the
Mine Safety and Health Administration (MSHA) stating that they had no
comment (Administrative Record Document ID No. OSM-2013-0009-0008).
    We also received an email from the National Park Service (NPS) on
October 23, 2013, stating that they had no comment on the amendment
(Administrative Record Document ID No. OSM-2013-0009-0009).
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.). None of the revisions that Montana proposed to
make in this amendment pertains to air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment.
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 August 28, 2013, we requested comments on Montana's
amendment from the SHPO and the ACHP (Administrative Record Document ID
No. OSM-2013-0009-0007), but neither responded to our request.
V. OSMRE's Decision
    Based on the above findings, we approve Montana's August 20, 2013,
amendment. To implement this decision, we are amending the Federal
regulations at 30 CFR part 926, which codify decisions concerning the
Montana program. In accordance with the Administrative Procedure Act (5
U.S.C. 500 et seq.), this rule will take effect 30 days after the date
of publication. Section 503(a) of SMCRA (30 U.S.C. 1253) requires that
the State's program demonstrate that it has the capability of carrying
out the provisions of the Act and meeting its purposes. SMCRA requires
consistency between State and Federal standards.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
    This rule would not effect a taking of private property or
otherwise have taking implications that would result in public 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, 1992, 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 13771--Reducing Regulation and Controlling Regulatory
Costs
    State program amendments are not regulatory actions under Executive
Order 13771 because they are exempt from review under Executive Order
12866.
Executive Order 12988--Civil Justice Reform
    The Department of the Interior has reviewed this rule as required
by Section 3 of Executive Order 12988. The Department determined that
this Federal Register notice meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and proposed regulations to eliminate drafting
errors and ambiguity; that the agency write 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 notice and
to changes to the Federal regulations. The review under this Executive
Order did not extend to the language of the State regulatory program or
to the program amendment that the State of Montana drafted.
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 program
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 the program amendment to ensure that it is ``in
accordance with'' the requirements of SMCRA and is ``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 though a commitment
to consultation with Tribes and recognition of their right to self-
governance and Tribal
[[Page 56695]]
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
a significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
Executive Order 13405--Protection of Children From Environmental Health
Risks and Safety Risks
    This rule is not subject to Executive Order 13045 because this is
not an economically significant regulatory action as defined by
Executive Order 12866; and this action does not address environmental
health or safety risks disproportionately affecting children.
National Environmental Policy Act
    Consistent with Sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the Department of the Interior
Departmental Manual, part 516, Section 13.5(A), State program
amendments are not major Federal actions within the meaning of Section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
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 OMB 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), 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; 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
    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. This 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.
    Dated: August 21, 2019.
David Berry,
Director, Western Region, Regions 5, 7, 8, 9, 10, 11.
    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. Section 926.15 is amended in the table by adding an entry in
chronological order by ``date of final publication'' to read as
follows:
Sec.  926.15   Approval of Montana regulatory program amendments.
* * * * *
[[Page 56696]]
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   Original amendment submission date            Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
August 20, 2013.........................  October 23, 2019.......................  ARM 17.24.1001(1)(b), (1)(c),
                                                                                    (2), (2)(h)(iii)(F), (2)(q),
                                                                                    and (7), Permit Requirement;
                                                                                    ARM 17.24.1002(3),
                                                                                    Information and Monthly
                                                                                    Reports; ARM 17.24.1003(1),
                                                                                    Renewal and Transfer of
                                                                                    Permits; ARM
                                                                                    17.24.1005(2)(d), Drill
                                                                                    holes; ARM 17.24.1016(3),
                                                                                    Bond Requirements for
                                                                                    Drilling Operations; ARM
                                                                                    17.24.1018(1)(b), (2), (4),
                                                                                    (5)(a), (6), (7), (8), and
                                                                                    (9), Notice of Intent to
                                                                                    Prospect; ARM 17.24.1019,
                                                                                    Permit requirement--short
                                                                                    form; MCA 82-4-222(1)(k),
                                                                                    (1)(l), (2), (2)(l), (2)(m),
                                                                                    and (8), Permit application--
                                                                                    application revisions; MCA
                                                                                    82-4-226(1), (2), (7)(a),
                                                                                    (7)(b)(i), (7)(b)(ii), and
                                                                                    (8), Prospecting permit; MCA
                                                                                    82-4-227 (8), Refusal of
                                                                                    permit--applicant violator
                                                                                    system; MCA 82-4-237(1),
                                                                                    (1)(a), (1)(b), (1)(c), (2),
                                                                                    and (3), Operator to file
                                                                                    annual reports; MCA 82-4-
                                                                                    253(3)(d), Suit for damage
                                                                                    to water supply.
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[FR Doc. 2019-22945 Filed 10-22-19; 8:45 am]
 BILLING CODE 4310-05-P