Montana Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

Montana Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; reopening and extension of comment period on

proposed program amendment.

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SUMMARY: OSM is announcing receipt of additional explanatory

information pertaining to a previously proposed amendment to the

Montana permanent regulatory program (hereinafter, the ``Montana

program'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The additional explanatory information addresses issues raised

by OSM's review of Montana's previously proposed program amendment

submittal dated July 28, 1993 (Administrative Record No. MT-11-01);

this proposed amendment concerns ownership and control provisions,

violation history updates, surface owner consent, coal exploration

(``prospecting'') under notices of intent, and editorial changes.

This document sets forth the times and locations that the Montana

program and proposed amendment to that program are available for public

inspection and the reopened comment period during which interested

persons may submit written comments on the proposed amendment.

Dates: Written comments must be received by 4:00 p.m., m.d.t., August

26, 1994.

ADDRESSES: Written comments should be mailed or hand delivered to Guy

Padgett at the address listed below.

Copies of the Montana Program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Casper Field Office.

Mr. Guy Padgett, Director, Casper Field Office, Office of Surface

Mining Reclamation and Enforcement, 100 East B Street, Room 2128,

Casper, WY 82601-1918, Telephone:(307) 261-5776

Gary Amestoy, Administrator, Montana Department of State Lands,

Reclamation Division, Capitol Station, 1625 Eleventh Avenue, Helena,

Montana 59620, Telephone: (406) 444-2074

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone (307) 261-5776.

SUPPLEMENTARY INFORMATION:

I. Background on the Montana Program

On April 1, 1980, the Secretary of the Interior conditionally

approved the Montana program. General background information on the

Montana program, Including the Secretary's findings, the disposition of

comments, and conditions of approval of the Montana program can be

found in the April 1, 1980, Federal Register [45 FR 21560]. Subsequent

actions concerning Montana's program and program amendments can be

found at 30 CFR 926.15 and 926.16.

II. Proposed Amendment

By letters dated June 16 and July 28, 1993 (Administrative Record

No. MT-11-01), Montana submitted a proposed amendment to its program

pursuant to SMCRA. Montana submitted the proposed amendment in response

to statutory changes adopted by the Montana 1993 Legislative session,

regarding notice of intent for ``prospecting'', ownership and control

provisions, violation history updates, and editorial changes. OSM

announced receipt of the proposed amendment in the August 7, 1993,

Federal Register (58 FR 45303) and invited public comment on its

adequacy. The public comment period ended September 27, 1993.

During its review of the amendment, OSM identified concerns

relating to the provisions of Montana Code Annotated (MCA) 82-4-224

concerning surface owner consent and MCA 82-4-226(8) concerning coal

exploration (``prospecting'') under notices of intent. OSM notified

Montana of these concerns by letter dated January 19, 1994

(administrative record No. MT-11-18). Montana responded in a letter

dated July 28, 1994 (Administrative Record No. MT-11-19) by submitting

additional explanatory information.

The additional explanatory material submitted by Montana includes

the following:

1. Montana presents arguments that MCA 82-4-222(1)(d) and 82-4-

231(4) provides adequate statutory authority for the Administrative

Rules of Montana (ARM) 26.4.303(15) and 26.4.405(6)(k);

2. Montana explains that the statutory definitions of ``waiver''

and ``written consent'' in MCA 82-4-203 no longer have a purpose within

the statute, but pose no problem in administering the statute;

3. Montana presents arguments that any prospecting that is

conducted to determine the location, quality, or quantity of a coal

deposit requires a prospecting permit, and that it is highly unlikely

that any other prospecting activity would remove more than 250 tons of

coal;

4. Montana presents arguments that under MCA 82-4-266 (1) and (2),

all prospecting operations for which a permit must be obtained are

subject to reclamation and bonding requirements, regardless of whether

substantial surface disturbance results; and

5. Montana states its intention to promulgate a regulatory

definition of ``substantially disturbed,'' and regulatory requirements

for information in notices of intent, at some future date. Montana also

addressed several editorial comments OSM made on the initial June 16

and July 28, 1993, submission.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Montana program

amendment to provide the public an opportunity to reconsider the

adequacy of the amendment in light of the additional materials

submitted. In accordance with the provisions of 30 CFR 732.17(h), OSM

is seeking comments on whether the proposed amendment, including the

additional materials submitted, satisfies the applicable program

approval criteria of 30 CFR 732.15. If the amendment is deemed

adequate, it will become part of the Montana program.

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Casper Field Office will not

necessarily be considered in the final rulemaking or included in the

administrative record.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

by a specific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR

730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR parts 730, 731, and 732 have

been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq).

The State submittal which is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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 counterpart Federal regulations.

List of Subjects in 30 CFR Part 926

Intergovernmental relations, Surface mining, Underground mining.

Dated: August 5, 1994.

Russell F. Price,

Acting Assistant Director, Western Support Center.

[FR Doc. 94-19607 Filed 8-10-94; 8:45 am]

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