Montana Regulatory Program, 56689-56696 [2019-22945]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement

[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]]



----------------------------------------------------------------------------------------------------------------
   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.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2019-22945 Filed 10-22-19; 8:45 am]
 BILLING CODE 4310-05-P