81112 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 

APPENDIX A TO PART 950—SCHEDULE OF USER FEES FOR ACCESS TO NOAA ENVIRONMENTAL DATA—Continued 

Name of product/data/publication/information/service Current fee New fee 

NODC Order Consultation Fee ........................................................................................................................ * 2.00 

NODC Handling and Packing Fee ................................................................................................................... * 7.00 

World Ocean Database-World Ocean Atlas 2009 DVDs ................................................................................. * 11.00 

Additional National Geophysical Data Center (NGDC) User Fees: 

Mini Poster ........................................................................................................................................................ 1.00 1.00 

Icosahedron Globe ........................................................................................................................................... 3.00 .50 

Convert Data to Standard Image ..................................................................................................................... 5.00 5.00 

Single Orbit OLS .............................................................................................................................................. 16.00 16.00 

Single Orbit OLS, Additional Orbits .................................................................................................................. 5.00 5.00 

Single Orbit OLS—Subset ................................................................................................................................ 16.00 16.00 

Single Orbit OLS, Subset—Additional Orbits ................................................................................................... 5.00 5.00 

Geolocated Data ............................................................................................................................................... 43.00 45.00 

Subset of Pre-existing Geolocated Data .......................................................................................................... 26.00 27.00 

Global DMSP–OLS Nighttime Lights Annual Composite from One Satellite .................................................. 70,140.00 73,614.00 

Most Recent DMSP–OLS Thermal Band/Cloud Cover Mosaics from Multiple Satellites ............................... 238.00 250.00 

Nightly DMSP–OLS Mosaics, Visible and Thermal Band Data from One Satellite ........................................ 223.00 235.00

Global DMSP–OLS Nighttime Lights Lunar Cycle Composite from One Satellite .......................................... 6,020.00 6,307.00 

Radiance Calibrated Global DMSP–OLS Nighttime Lights Annual Composite from One Satellite ................ 77,177.00 81,047.00 

Research Data Series CD–ROM/DVD ............................................................................................................. 25.00 25.00 

Custom Analog Plotter Prints ........................................................................................................................... 60.00 60.00 

NOS Bathymetric Maps and Miscellaneous Archived Publication Inventory ................................................... 7.00 7.00 

Global DMSP–OLS Annual Composite of Persistent Nighttime Lights on Monthly Increments from One 

Satellite ......................................................................................................................................................... 7,665.00 8,032.00 

Data Poster ....................................................................................................................................................... * 18.00 

High Definition Geomagnetic Model ................................................................................................................. * 19,997.00 

* Reflects a new product not previously offered.

[FR Doc. 2010–32404 Filed 12–23–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 926 

[SATS No. MT–029–FOR; Docket ID No. 

OSM–2008–0022] 

Montana Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, 

Department of the Interior. 

ACTION: Final rule; approval of 

amendment. 

SUMMARY: The Office of Surface Mining 

Reclamation and Enforcement (OSMRE) 

is 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 

is proposing the addition of guidelines 

regarding normal husbandry practices to 

improve operational efficiency and to 

ensure that the husbandry practices 

used by the permittee during the period 

of responsibility for revegetation success 

and bond liability are normal husbandry 

practices within the region for unmined 

lands. 

DATES: Effective Date: December 27, 

2010. 

FOR FURTHER INFORMATION CONTACT: Jeff 

Fleischman, Director, Casper Field 

Office Telephone: (307) 261–6550 

Internet Address: 

jfleischman@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Montana Program 

II. Submission of the Proposed Amendment 

III. Office of Surface Mining Reclamation and 

Enforcement’s Findings 

IV. Summary and Disposition of Comments 

V. OSMRE’s Decision 

VI. Procedural Determinations 

I. Background on the Montana Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this [Act] * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this [Act].’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the Montana 

program on April 1, 1980. You can find 

background information on the Montana 

program, including the Secretary’s 

findings, the disposition of comments, 

and conditions of approval in the April 

1, 1980, Federal Register (45 FR 21560). 

You can also find later actions 

concerning Montana’s program and 

program amendments at 30 CFR 926.15, 

926.16, and 926.30. 

II. Submission of the Proposed 

Amendment 

By letter dated July 3, 2008, Montana 

sent OSMRE an amendment to its 

program (SATS number MT–029–FOR; 

Administrative Record No. OSM–2008– 

0022) under SMCRA (30 U.S.C. 1201 et 

seq.). Montana sent the amendment to 

include the changes made at its own 

initiative. 

We announced receipt of the 

proposed amendment in the November 

10, 2008, Federal Register (73 FR 

66569). 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–2008–0022–0001). We did not 

hold a public hearing or meeting 

because no one requested one. The 

public comment period ended on 

December 10, 2008. We did not receive 

any comments. 

During our review of the amendment, 

we identified concerns regarding the 

proposed normal husbandry practices 

for Landscaping Activities and Erosion 

and Settling Repair. We notified 

Montana of these concerns by letter 

dated April 16, 2009 (Administrative 

Record No. OSM–2008–0022–0013). 

Our concerns are explained in detail in 

Section III of this notice. 


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Montana responded in a letter dated 

May 12, 2009, by sending us a revised 

amendment (Administrative Record No. 

OSM–2008–0022–0012). Montana made 

the appropriate changes to the normal 

husbandry practices for Erosion and 

Settling Repair and Landscaping 

Activities. The provisions were 

acceptable to OSMRE. 

Based upon Montana’s revisions to its 

amendment, we reopened the public 

comment period in the August 13, 2009, 

Federal Register (74 FR 40799) and 

provided an opportunity for a public 

hearing or meeting on the adequacy of 

the revised amendment. We did not 

hold a public hearing or meeting 

because no one requested one. The 

public comment period ended on 

September 14, 2009. We did not receive 

any comments. 

III. OSMRE’s Findings 

This section contains our findings 

concerning the amendment to the 

Montana program. We are making these 

findings in accordance with the criteria 

and procedural requirements of SMCRA 

and the Federal regulations at 30 CFR 

732.15 and 732.17. We are approving 

the amendment. 

What is Montana proposing to change? 

Montana proposes the addition of 

Normal Husbandry Practices Guidelines 

to the Administrative Rules of Montana. 

OSMRE must approve the list of normal 

husbandry practices that mine operators 

may employ without restarting the 

responsibility period prior to 

application for Phase III bond release. 

The September 7, 1988, Federal 

Register notice (53 FR 34641) states that 

OSMRE ‘‘would consider, on a practiceby-practice basis, the administrative 

record supporting each practice 

proposed by a regulatory authority as 

normal husbandry practice’’ and that the 

regulatory authority ‘‘would be expected 

to demonstrate (1) that the practice is 

the usual or expected state, form, 

amount or degree of management 

performed habitually or customarily to 

prevent exploitation, destruction or 

neglect of the resource and maintain a 

prescribed level of use or productivity 

of similar unmined lands and (2) that 

the proposed practice is not an 

augmentative practice prohibited by 

section 515(b)(20) of [SMCRA].’’ 

The Federal regulations at 30 CFR 

816.116(c)(1) for surface mining 

operations and 817.116(c)(1) for 

underground mining operations require 

that the period of extended 

responsibility for successful 

revegetation shall begin after the last 

year of augmented seeding, fertilizing, 

irrigation, or other work, excluding 

husbandry practices that are approved 

by the regulatory authority in 

accordance with 30 CFR 816.116(c)(4) 

and 817.116(c)(4). 

The Federal regulations at 30 CFR 

816.116(c)(4) and 817.116(c)(4) require 

that a regulatory authority may approve 

selective husbandry practices, excluding 

augmented seeding, fertilization, or 

irrigation, provided it obtains prior 

approval from OSMRE’s Director that 

the practices are normal husbandry 

practices, without extending the period 

of responsibility for revegetation success 

and bond liability, if such practices can 

be expected to continue as part of the 

postmining land use or if 

discontinuance of the practices after the 

liability period expires will not reduce 

the probability of permanent vegetation 

success. Approved practices shall be 

normal husbandry practices within the 

region for unmined land having land 

uses similar to the approved postmining 

land use of the disturbed area, including 

such practices as disease, pest, and 

vermin control; and any pruning, 

reseeding, and transplanting specifically 

necessitated by such actions. 

Montana is proposing to add ten 

categories of normal husbandry 

practices that will not be considered 

augmented practices and will not result 

in the restart of the responsibility 

period. Each category has an associated 

list of Standard Conservation Practices 

currently approved by the Montana 

State Office of the Natural Resources 

Conservation Service that will be 

included as approved normal husbandry 

practices for the category. These 

National Resources Conservation 

Service (NRCS) Standards can be found 

at http://www.regulations.gov 

(Administrative Record No. OSM–2008– 

0022–0001). 

During our initial review of the 

amendment proposal, OSMRE identified 

proposed normal husbandry practices 

that we determined could not be 

considered ‘‘normal’’ as defined in 30 

CFR 816.116(c)(4) and 817.116(c)(4). 

These included the proposed normal 

husbandry practices for Erosion and 

Settling Repair and Landscaping 

Activities. We notified Montana of our 

concerns by letter dated April 16, 2009 

(Administrative Record No. OSM–2008– 

0022–0009). We delayed final 

rulemaking to afford Montana the 

opportunity to submit new material to 

address the deficiencies. By letter dated 

May 12, 2009, Montana responded to 

the concern letter, providing rationale to 

demonstrate that the proposed 

guidelines for Erosion and Settling 

Repair and Landscaping Activities can 

be expected to continue as part of the 

post mining land use, or if 

discontinuance of the practices after the 

liability period expires, it will not 

reduce the probability of permanent 

revegetation success, as prescribed in 30 

CFR 816.116(c)(4) and 817.116(c)(4) 

(Administrative Record No. OSM–2008– 

0022–0010). Montana also elected to 

omit the NRCS practices that were not 

relevant or that were potentially 

problematic. Please see sections III.D. 

and III.F. for more information about the 

proposed revised sections for Erosion 

and Settling Repair and Landscaping 

Activities. OSMRE announced the 

reopening of the comment period in the 

Federal Register on August 13, 2009 (74 

FR 40799). The comment period closed 

September 14, 2009. No comments were 

received. 

To remain clear and concise and to 

eliminate repetition, we have grouped 

the ten categories of proposed normal 

husbandry practices as follows: 

Interseeding and Supplemental Planting 

of Tree and Shrub Seedlings (III.A.); 

Mechanical Practices, Supplemental 

Mulching, Prescribed Burning, Pest 

Control, and Agricultural Activities 

(III.B.); Grazing (III.C.); Erosion and 

Settling Repair (III.D.); Development 

and Maintenance of Water Resources 

(III.E.); and Landscaping Activities 

(III.F.). The findings include whether 

the practice being approved as normal 

husbandry is subject to an acreage 

limitation. That is, the practice can be 

applied only to a percentage of the 

reclaimed acreage. Other practices have 

no acreage limitation. 

A. Interseeding and Supplemental 

Planting of Tree and Shrub Seedlings. 

Montana proposes to add the following 

language regarding Interseeding and 

Supplemental Planting: 

Interseeding is done to enhance 

revegetation, rather than to augment 

revegetation. Interseeding is defined as a 

secondary seeding into established 

revegetation to improve composition, 

diversity or seasonality. In contrast, 

augmented seeding is reseeding with 

fertilization or irrigation, or in response to 

unsuccessful revegetation in terms of 

germination, establishment, or permanence. 

Interseeding may be used to take advantage 

of favorable climatic conditions and to 

enhance germination and establishment of 

reclamation species requiring extended 

periods of stratification or other special 

environmental conditions. Interseeding may 

also be used to improve or alter the 

compositional balance between forage 

species and shrubs, or between warm and 

cool season grasses. 

Interseeding of native species and 

approved introduced species may be 

implemented up to six (6) years prior to 

Phase III bond release for grazing land, fish 

and wildlife habitat, forestry, or recreation 

post-mining land uses. Augmented seeding 

or seeding of introduced and non-native 


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species other than those approved by the 

Department is not allowed as a Normal 

husbandry practice. No reclaimed acreage 

limit applies to interseeding. 

To promote and enhance establishment of 

wildlife habitats, increase diversity, and 

improve age-class structure in monotypic 

stands of trees and shrubs, mine operators 

may transplant native trees and shrubs and/ 

or plant tree and shrub nursery stock on 

reclamation units up to six (6) years prior to 

Phase III bond release for all post-mining 

land uses. As long as the approved postmining land use is being met, no reclaimed 

acreage limit applies to interplanting of 

native transplants or nursery stock. 

In all cases, damage to established or 

emergent vegetation should be avoided. 

Methods for interseeding both herbaceous 

and woody species may include hand 

planting, broadcast, range drill or interseeded 

applications, and other methods as deemed 

appropriate by the operator. Chemical 

fallowing of existing herbaceous perennial 

vegetation may be employed to reduce 

competition prior to interplanting of woody 

species. Operators are encouraged to modify 

seeding equipment to optimize planting and 

reduce soil compaction or damage to existing 

vegetation. Use of livestock for trampling 

seed and mulch into the soil is also 

encouraged as an approved husbandry 

practice. 

In support of the proposed practices for 

Interseeding and Supplemental Planting 

of Tree and Shrub Seedlings, Montana 

made reference to the following U.S. 

Department of Agriculture’s Natural 

Resources Conservation Service (NRCS) 

Practice Standards for Montana: 

Channel Bank Vegetation (322), Critical 

Area Planting (342), Windbreak/ 

Shelterbelt Establishment (380), Field 

Border (386), Riparian Herbaceous 

Cover (390), Riparian Forest Buffer 

(391), Filter Strip (393), Stream Habitat 

Improvement and Management (395), 

Hedgerow Planting (422), Range 

Planting (550), Tree and Shrub 

Establishment (612), Restoration and 

Management of Rare or Declining 

Habitats (643), Wetland Wildlife Habitat 

Management (644), Upland Wildlife 

Habitat Management (645), Early 

Successional Habitat Development/ 

Management (647), Wetland Restoration 

(657), Wetland Creation (658), and 

Wetland Enhancement (659). 

OSMRE previously approved similar 

language as a normal husbandry 

practice in New Mexico (65 FR 65770, 

November 2, 2000). The Montana 

proposal is based on language from the 

approved New Mexico program. 

For regulatory purposes, interseeding 

is done to enhance revegetation rather 

than to augment it. Interseeding is 

defined as a secondary seeding into 

established revegetation to improve 

composition, diversity, or seasonality. 

In contrast, augmented seeding is 

reseeding with fertilization or irrigation, 

or in response to unsuccessful 

revegetation in terms of germination, 

establishment, or permanence. Based on 

these references and practices, it is clear 

that in certain cases, interseeding is 

desirable to increase the structural and 

vegetative diversity of the reclaimed 

lands for wildlife habitat and for 

rangeland improvement. 

OSMRE considers, on a practice-bypractice basis, the administrative record 

supporting each normal husbandry 

practice proposed by a regulatory 

authority (53 FR 34641, September 7, 

1988). In 1983, OSMRE considered and 

rejected the idea of allowing 

interseeding and supplemental 

fertilization during the first 5 years of 

the 10-year responsibility period. While 

allowing replanting of trees and shrubs 

‘‘to utilize the best technology available’’ 

without extending the responsibility 

period, OSMRE determined that 

augmented seeding, fertilizing, or 

irrigation is not allowed during the 

responsibility period (See 48 FR 40156, 

September 2, 1983.) 

However, in 1988, (53 FR 34641, 

September 7, 1988) OSMRE stated in the 

context of the Federal regulation at 30 

CFR 816.116(c)(4) that seeding, 

fertilization, or irrigation performed at 

levels that do not exceed those normally 

applied in maintaining comparable 

unmined land in the surrounding area 

would not be considered prohibited 

augmentative activities. 

This is consistent with the preamble 

to the 1979 Revegetation Regulations (44 

FR 15238, March 13, 1979) which states, 

‘‘The augmented seeding, fertilizing and 

irrigation does not apply to cropland 

and pastureland that can be expected to 

have a similar postmining use and 

which should be managed in 

accordance with acceptable local 

agricultural practices.’’ This was restated 

on September 7, 1988, in 53 FR 34640: 

‘‘* * * the preamble to the 1979 

revegetation regulations which 

explained that fertilization, seeding, and 

irrigation in accordance with local 

agricultural practices on cropland or 

pasture land is not considered a 

prohibited augmentative practice.’’ 

Furthermore, 30 CFR 816.116(c)(4) 

and 817.116(c)(4) specifically require 

that any approved husbandry practice 

must be expected to continue as part of 

the postmining land use, or if the 

practices are discontinued after the 

liability period expires, cessation will 

not reduce the probability of permanent 

vegetation success. Therefore, any 

irrigation or fertilization (such as NRCS 

Standard Channel Bank Vegetation, 

322), would have to comply with the 

spirit and intent of the regulations. 

In response to comments received 

concerning an Ohio program 

amendment, OSMRE stated that the 

legislative history of the Act [SMCRA] 

reveals no specific Congressional intent 

in the use of the term ‘‘augmented 

seeding.’’ Accordingly, OSMRE’s 

interpretation of augmented seeding is 

given deference so long as it has a 

rational basis (see 63 FR 51832, 

September 29, 1998). 

Included in the proposal to allow 

interseeding as a normal husbandry 

practice are proposed definitions for 

‘‘augmented seeding’’ and ‘‘interseeding’’ 

to distinguish the differences between 

the two. Interseeding is done to enhance 

revegetation, rather than to augment 

revegetation. Montana defines 

interseeding as a secondary seeding into 

established revegetation to improve 

composition, diversity, or seasonality. 

In contrast, augmented seeding is 

defined as reseeding with fertilization or 

irrigation, or in response to 

unsuccessful revegetation in terms of 

germination, establishment, or 

permanence. Interseeding may be used 

to take advantage of favorable climatic 

conditions and to enhance germination 

and establishment of reclamation 

species requiring extended periods of 

stratification or other special 

environmental conditions. Interseeding 

may also be used to improve or alter the 

compositional balance between forage 

species and shrubs, or between warm 

and cool season grasses. 

Interseeding is clearly aimed at 

establishing species that require special 

conditions for germination and the 

establishment or altering of species 

composition. Montana’s discussion of 

interseeding as a normal husbandry 

practice further clarifies that 

interseeding is done to enhance the 

revegetation, rather than to augment the 

revegetation. Montana reiterates that 

interseeding is secondary seeding into 

established revegetation to improve 

composition, diversity, or seasonality. 

In contrast, augmented seeding is 

reseeding with fertilization or irrigation, 

or in response to unsuccessful 

revegetation in terms of germination, 

establishment, or permanence. 

Montana also proposes appropriate 

time frames limiting the application of 

interseeding as a normal husbandry 

practice without restarting the bond 

liability period, requiring that 

interseeding of native species and 

approved introduced species may be 

implemented up to six (6) years prior to 

Phase III bond release for grazing land, 

fish and wildlife habitat, forestry, or 

recreation post-mining land uses. 

While it is OSMRE’s desire to 

encourage wetland development and the 


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management of such systems in a proper 

functioning condition, it is also 

OSMRE’s opinion that anything more 

than minor wetland related work (see 

the referenced NRCS practices cited 

(wetland restoration (657), wetland 

creation (658), and wetland 

enhancement (659)) would need to be 

completed at least six (6) years prior to 

Phase III bond release. Appropriate 

limits on aerial extents and time frames 

for implementation have been set for all 

proposed normal husbandry practices 

that would potentially use the wetland 

restoration, wetland creation, and 

wetland enhancement practice 

standards. 

Montana has demonstrated that the 

proposed normal husbandry practices 

for interseeding and supplemental 

planting are normal husbandry practices 

within the region for unmined lands 

having land uses similar to the 

approved post mining land use of the 

disturbed area. As appropriate limits on 

time frames for implementation have 

been set for all proposed practices, 

exceeding these limits would result in 

extending the period of responsibility. 

For these reasons, OSMRE has 

determined that the proposed normal 

husbandry practices for Interseeding 

and Supplemental Planting of Tree and 

Shrub Seedlings meet the criteria to be 

approved as normal husbandry practices 

under 30 CFR 816.116 (c)(4) and 

817.116(c)(4). We approve these changes 

to the Administrative Rules of Montana. 

B. Mechanical Practices, 

Supplemental Mulching, Prescribed 

Burning, Pest Control, and Agricultural 

Activities. Montana proposes to add the 

following language regarding 

Mechanical Practices: 

Selective cutting, mowing and raking to 

control weeds, reduce standing dead 

vegetation or litter, increase decomposition 

of organic matter, and stimulate vegetative 

regrowth are approved husbandry practices. 

These practices are applicable to all postmining land uses at any time during the 

liability period. No reclaimed acreage limit 

applies. 

In support of the proposed practices for 

Mechanical Practices, Montana made 

reference to the following NRCS 

Practice Standards for Montana: Brush 

Management (314), Fuel Break (383), 

Firebreak (394), Forage Harvest 

Management (511), Grazing Land 

Mechanical Treatment (548), Upland 

Wildlife Habitat Management (645), 

Early Successional Habitat 

Development/Management (647), 

Windbreak/Shelterbelt Renovation 

(650), and Forest Stand Improvement 

(666). 

Montana proposes to add the 

following language regarding 

Supplemental Mulching: 

Mulching of interseeded areas may be 

required if little of the original mulch 

application remains, there is limited organic 

matter in the root zone material, or potential 

for accelerated erosion exists. This practice is 

applicable to all approved post-mining land 

uses, and must be completed at least six (6) 

years prior to Phase III bond release. No 

reclaimed acreage limit applies. 

In support of the proposed practices 

for Mechanical Practices, Montana 

made reference to the NRCS Practice 

Standard for Mulching (484). 

Montana proposes to add the 

following language regarding Prescribed 

Burning: 

Controlled burning may be used to reduce 

persistent and common weeds, undesirable 

vegetation, litter buildup, or weed seed-load 

on reclaimed lands. Prescribed fire may also 

be used to reduce vegetative competition and 

stimulate growth of desired species. This 

practice is applicable to all post-mining land 

uses at any time during the liability period. 

No reclaimed acreage limit applies. 

In support of the proposed practices 

for Prescribed Burning, Montana made 

reference to the NRCS Practice 

Standards for Prescribed Burning (338) 

and Firebreak (394). 

Montana proposes to add the 

following language regarding Pest 

Control, including weeds, vertebrate and 

invertebrate animals, fungi and 

diseases: 

Prior to implementing control of weeds 

and other pests, the respective county weed 

board must approve a comprehensive 

noxious weed control plan. 

Selection of herbicides and mechanical 

control techniques represents a compromise 

between affecting the desirable species in 

reclamation units and controlling invasive 

and damaging organisms. Application of 

herbicides to control weeds may be necessary 

in some cases where steep slopes and rugged 

terrain prohibit access for mechanical 

control, fencing for managed grazing, or the 

use of fire. All herbicide applications, 

however, must be timed to avoid damage to 

shrub seedlings and grass seedlings in stages 

of growth prior to the fourth leaf stage. Both 

spraying (by hand or from a vehicle), and 

rope wicking may be used as application 

techniques. Operators may modify these 

techniques or use other forms of application. 

The use of fire or controlled grazing are 

generally encouraged for the control of 

annual brome grasses (Bromus tectorum and 

B. japonicum) and annual forbs such as 

Russian thistle (Salsola kali) or kochia 

(Kochia scoparia), because most shrub 

species will recover from a light fire and/or 

grazing. Herbicide use, however, may be 

necessary, when dealing with persistent, 

deeply rooted perennial species such as the 

knapweeds (Centaurea spp.), Canada thistle 

(Cirsium arvense) or leafy spurge (Euphorbia 

esula). These species typically do not 

respond to mechanical control or burning. 

Treatment of species such as salt cedar 

(Tamarix ramosissima) will require extreme 

caution to prevent herbicide and herbicide 

residues from entering surface waters or the 

groundwater. Operators proposing to use 

restricted chemicals must ensure that these 

chemicals are applied by certified 

applicators. This practice is applicable to all 

post-mining land uses and at any time during 

the liability period. No reclaimed acreage 

limit applies. 

In support of the proposed practices 

for Pest Control, Montana made 

reference to the NRCS Practice 

Standards for Prescribed Burning (338) 

and Pest Management (595). 

Montana proposes to add the 

following language regarding 

Agricultural Activities: 

Croplands and pasturelands require 

ongoing management activities. Annual or 

periodic seeding, fertilizing, irrigating, or 

other normal agricultural activity carried out 

on approved cropland or pastureland are 

such activities. These practices are applicable 

at any time during the liability period for the 

listed post-mining land uses, with no 

reclaimed acreage limits. 

In support of the proposed practices 

for Agricultural Activities, Montana 

made reference to the following NRCS 

Practice Standards for Montana: 

Conservation Crop Rotation (328), 

Residue and Tillage Management (329), 

Cover Crop (340), Residue Management, 

Seasonal (344), Residue Management, 

Mulch Till (345), Residue Management, 

Ridge Till (346), Field Border (386), 

Filter Strip (393), Forage Harvest 

Management (511), Strip Cropping 

(585), and Nutrient Management (590). 

The Montana proposed husbandry 

practices for Mechanical Practices, 

Supplemental Mulching, Prescribed 

Burning, Pest Control, and Agricultural 

Activities are based on language in the 

approved New Mexico program (65 FR 

65770). 

As proposed, the normal husbandry 

practices for Mechanical Practices, 

Supplemental Mulching, Prescribed 

Burning, Pest Control, and Agricultural 

Activities are normal husbandry 

practices within the region for unmined 

lands having land uses similar to the 

approved post mining land use of the 

disturbed area. In addition, Montana set 

an appropriate limit on the time frame 

for the implementation of the proposed 

practice for Supplemental Mulching. If 

a permittee exceeded the time limit, the 

permittee would have to extend the 

period of liability for demonstrating 

success of revegetation. OSMRE finds 

that Montana’s proposed normal 

husbandry practices identified above are 

consistent with and no less effective 

than the Federal regulations at 30 CFR 

816.116/817.116(c)(1) and (4) in meeting 


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the requirements of SMCRA. We 

approve the proposed changes. 

C. Grazing. Montana proposes to add 

the following language regarding 

Grazing: 

Livestock grazing is a standard land use 

and is a management tool that can be 

successfully used to increase plant diversity 

and production, as well as improve the 

overall health of a particular vegetative stand. 

On the Montana coal lands, grazing is 

primarily limited to cattle; however, grazing 

by sheep, goats or horses should also be 

considered when specific vegetation 

objectives are desired. The operator may use 

grazing to remove dead materials, harvest 

production, and stimulate vegetative growth 

as a husbandry practice. 

This practice is applicable to cropland, 

pastureland, grazing land, fish and wildlife 

habitat, forestry, and recreation post-mining 

land uses. Grazing may be conducted at any 

time during the liability period. 

Montana proposes to include the 

NRCS Standards for Fence (382) and 

Prescribed Grazing (528) to support 

Grazing. 

Montana’s proposal makes it clear 

that grazing is a management tool used 

to meet particular objectives, including 

increased plant diversity, overall 

vegetative health, removal of dead 

(plant) material, harvest production, and 

the stimulation of vegetative growth. 

It is also inherent in the approval that 

management will be within the bounds 

of normal husbandry practices within 

the region for unmined lands with 

similar uses regardless of whether or not 

a grazing plan, a grazing monitoring 

plan, or yearly recalculations of carrying 

capacities and stocking rates are 

performed. 

Montana limits the practice of 

Grazing to the following postmining 

land uses: Cropland; pastureland; 

grazing land; fish and wildlife habitat; 

forestry; and recreation. 

Montana demonstrates that the NRCS 

standard practices proposed for Grazing 

are the usual or expected state, form, 

amount, or degree of management 

performed habitually or customarily to 

prevent exploitation, destruction, or 

neglect of the resource and maintain a 

prescribed level of use or productivity 

of similar unmined lands within the 

region having land uses similar to the 

approved postmining land use of the 

disturbed area. The proposed normal 

husbandry practices for Grazing meet 

the criteria for approval under 30 CFR 

816/817.116(c)(4). We, therefore, 

approve the proposed language. 

D. Erosion and Settling Repair. 

Montana proposes to add the following 

language regarding Erosion and Settling 

Repair: 

Repair of rills, gullies, headcuts or similar 

erosional features is sometimes necessary. 

Settling of reclaimed spoils creates 

depressions, sink holes and linear features. 

Additionally, settling along pipelines, 

underground utilities, etc. often results in 

undesirable features. Features to be repaired 

must be characteristic of unmined lands in 

the region and the damage must not be 

caused by a lack of planning, design, or 

implementation of the mining and 

reclamation plan. When deciding whether a 

particular erosion feature should be repaired 

the operator should consult the Department’s 

Guidelines on Erosional Features. The use of 

fertilization or other facilitating practices (i.e. 

irrigation), as mentioned in some Normal 

husbandry practices (e.g. 342—Critical Area 

Planting and 412—Grassed Waterway) will 

not be approved unless it can be 

demonstrated that the practice will continue 

as part of the postmining land use or if 

discontinuance of the practice after the 

liability period expires will not reduce the 

probability of permanent vegetation success. 

Repairs considered to be normal husbandry 

practices include hand work with shovels 

and similar tools, mechanical manipulation 

of small areas (including hauling fill into 

small areas of settling), installation of 

erosion-control matting, sediment filtration 

(silt fence, hay or straw bales, rock berms, 

check dams, etc.), hand, broadcast and drill 

seeding of small areas, and raking. This 

practice is applicable to all post-mine land 

uses at any time during the liability period. 

No more than 10% of the respective 

reclaimed unit may be repaired as a normal 

husbandry practice. If erosion and settling 

repairs are required on more than 10%, the 

liability period will be reinitiated. Erosion 

and settling repairs completed prior to the 

initiation of the 10-year liability period are 

not included in the 10%. 

Montana proposes to include the 

NRCS Standards for Channel Bank 

Vegetation (322), Critical Area Planting 

(342), Stream Habitat Improvement and 

Management (395), Grassed Waterway 

(412), Use Exclusion (472), Range 

Planting (550), Heavy Use Area 

Protection (561), Streambank and 

Shoreline Protection (580), and Channel 

Stabilization (584) to be used for 

Erosion and Settling Repair. 

Guidance concerning the repair of 

rills and gullies is found in the 

September 2, 1983, Federal Register 

notice (48 FR 40157). Here OSMRE 

states that the regulatory authority could 

allow the repair of rills and gullies as a 

husbandry practice without restarting 

the liability period only if the general 

standards of 30 CFR 816/817.116(c)(4) 

are met and after consideration of the 

normal conservation practices within 

the region. 

Montana’s proposed language for 

Erosion and Settling Repair is similar to 

language approved for New Mexico’s 

Program in 65 FR 65770 (November 2, 

2000). Montana is specific regarding the 

unit percentage of area that may be 

repaired (no more than ten percent), 

noting that if erosion and settling 

repairs are required on more than ten 

percent of the reclaimed unit, the 

liability period will be reinitiated. 

Montana satisfactorily demonstrates that 

the proposed normal husbandry 

practices for Erosion and Settling Repair 

are normal husbandry practices within 

the region for unmined lands having 

land uses similar to the approved post 

mining land use of the disturbed area. 

We find that Montana’s proposed 

normal husbandry practices for Erosion 

and Settling Repair are consistent with 

and no less effective than the Federal 

regulations at 30 CFR 816/817.116(c)(4) 

in meeting the requirements of SMCRA, 

and we approve them. 

E. Development and Maintenance of 

Water Resources. Montana proposes to 

add the following language regarding 

Development and Maintenance of Water 

Resources: 

Water resources may be developed to 

provide for better livestock distribution, 

seasonal wildlife habitat, or to take advantage 

of a naturally occurring situation, such as a 

spring or seep that develops in reclamation. 

Normal maintenance (cleaning, repair, 

upgrading, stabilizing with rock, and 

interseeding or replanting of vegetation) and 

protection (fencing and animal exclusion) of 

developed water resources, their shorelines, 

and the structures associated with developed 

water sources is considered a normal 

husbandry practice. 

This practice is applicable to either water 

sources that can be developed or to water 

sources that have been developed for all 

approved post-mining land uses. Cleaning, 

repair, and upgrading may be conducted at 

any time during the liability period, with no 

reclaimed acreage limits. Ponds or permanent 

impoundments must be permitted in 

accordance with ARM 17.24.504 and 

17.24.642. New development of ponds, wells, 

or any activity that requires stabilization, 

interseeding, or replanting must be 

completed at least six (6) years prior to Phase 

III bond release and is limited to no more 

than 10% of the reclaimed acreage in the 

bond release unit. 

The proposed language lists the NRCS 

Standards for Channel Bank Vegetation 

(322), Critical Area Planting (342), 

Ponds (378), Fence (382), Grassed 

Waterway (412), Dry Hydrant (432), 

Micro-irrigation Systems (441), 

Sprinkler Irrigation Systems (442), 

Surface and Subsurface Irrigation 

Systems (433), Water Management 

Irrigation system (449), Use Exclusion 

(472), Spring Development (574), 

Streambank and Shoreline Protection 

(580), Channel Stabalization (584), 

Watering Facility (614), Water 

Harvesting Catchment (636), Water Well 

(642), and Shallow Water Development 

and Management (646) as practices used 

to develop and maintain water 

resources. 


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As previously mentioned, in 1983, 

OSMRE considered and rejected the 

idea of allowing interseeding and 

supplemental fertilization during the 

first 5 years of the 10-year responsibility 

period. While allowing replanting of 

trees and shrubs ‘‘to utilize the best 

technology available’’ without extending 

the responsibility period, OSMRE 

determined that augmented seeding, 

fertilizing, or irrigation is not allowed 

during the responsibility period (48 FR 

40156, September 2, 1983.) 

However, in 1988, (53 FR 34641, 

September 7, 1988) OSMRE stated, in 

the context of the Federal regulation at 

30 CFR 816/817.116(c)(4), that seeding, 

fertilization, or irrigation performed at 

levels that do not exceed those normally 

applied in maintaining comparable 

unmined land in the surrounding area 

would not be considered prohibited 

augmentative activities. 

This is consistent with the preamble 

to the 1979 revegetation regulations (44 

FR 15238, March 13, 1979) which states 

that ‘‘the augmented seeding, fertilizing 

and irrigation does not apply to 

cropland and pastureland that can be 

expected to have a similar postmining 

use and which should be managed in 

accordance with acceptable local 

agricultural practices.’’ This was restated 

on September 7, 1988, in FR 53 3640, 

which states, ‘‘* * * the preamble to the 

1979 revegetation regulations which 

explained that fertilization, seeding, and 

irrigation in accordance with local 

agricultural practices on cropland or 

pasture land is not considered a 

prohibited augmentative practice.’’ 

Furthermore, 30 CFR 816/ 

817.116(c)(4) specifically requires that 

any approved husbandry practice must 

be expected to continue as part of the 

postmining land use, or if the practices 

are discontinued after the liability 

period expires, cessation will not reduce 

the probability of permanent vegetation 

success. 

Therefore, any irrigation, fertilization, 

or seeding such as those used in the 

incorporated NRCS Practices for 

Channel Bank Vegetation (322), or 

Critical Area Planting (342), or the 

NRCS Practices relating to irrigation, 

etc., would have to comply with the 

Federal regulations at 30 CFR 816/ 

817.116(c)(1) and (c)(4). 

It is OSMRE’s desire to encourage 

wetland development and the 

management of such systems in a proper 

functioning condition. Therefore, all 

Federal, State, and local laws and 

regulations need to be adhered to when 

working in aquatic or wetland systems, 

and/or in ways that might affect water 

quality. Impacts to existing hydrology 

will need to be assessed (e.g. Code 

378—Ponds). 

Montana demonstrates that the 

proposed practices for the Development 

and Maintenance of Water Resources 

are normal husbandry practices within 

the region for unmined lands having 

land uses similar to the approved post 

mining land use of the disturbed area. 

As appropriate limits on time frames 

and acreages for implementation have 

been set for all proposed practices, 

exceeding these limits would result in 

extending the period of responsibility. 

This proposed language meets the 

criteria to be approved under 30 CFR 

816/817.116(c)(4). We approve this 

proposed change to the Administrative 

Rules of Montana. 

F. Landscaping Activities. Montana 

proposes to add the following language 

regarding Landscaping Activities: 

Periodic landscaping or vegetation 

management activity can be carried out on 

approved pastureland, grazing land, fish and 

wildlife habitat, forestry, recreation, 

industrial, or residential post-mining land 

uses. Practices which do not involve the 

establishment of new vegetation (seeding and 

planting) are applicable at any time during 

the liability period, with no reclaimed 

acreage limits. Practices which involve 

seeding or planting must be completed at 

least six (6) years prior to Phase III bond 

release. No reclaimed acreage limit applies. 

Initially, Montana proposed the 

following NRCS Standards to support 

Landscaping Activities: Fuel Break 

(383), Firebreak (394), Hedgerow 

Planting (422), Irrigation System, Microirrigation (441), Irrigation System, 

Sprinkler (442), Irrigation System, 

Surface and Subsurface (443), Irrigation 

Water Management (449), Stream 

Crossing (578), Tree, Shrub 

Establishment (612), Windbreak/ 

Shelterbelt Renovation (650), Wetland 

Restoration (657), Wetland Creation 

(658), Wetland Enhancement (659), and 

Forest Stand Improvement (666). 

The Standard Conservation Practices 

that Montana referenced in its original 

amendment proposal relating to 

Irrigation, specifically Micro-irrigation 

Systems (441), Sprinkler Irrigation 

Systems (442), Surface and Subsurface 

Irrigation Systems (443), and Water 

Management Irrigation Systems (449), 

did not meet the requirements of 30 CFR 

816/817.116(c)(4), which specifically 

exclude augmentative irrigation as being 

approved as a normal husbandry 

practice. 

The preamble to the 1979 revegetation 

regulations (44 FR 15238, March 13, 

1979) clearly states, ‘‘The augmented 

seeding, fertilizing and irrigation does 

not apply to cropland and pastureland 

that can be expected to have a similar 

postmining use and which should be 

managed in accordance with acceptable 

local agricultural practices.’’ This was 

restated on September 7, 1988, in FR 53, 

3640: ‘‘* * * the preamble to the 1979 

revegetation regulations which 

explained that fertilization, seeding and 

irrigation in accordance with local 

agricultural practices on cropland or 

pasture land is not considered a 

prohibited augmentative practice.’’ 

In our concern letter dated April 16, 

2009 (Administrative Record No. OSM– 

2008–0022–0013), OSMRE requested 

that Montana justify why irrigation 

would be applicable to all land uses 

without extending the period of 

responsibility, or define when and for 

what land use such irrigation practices 

would be applicable under the 

constraints cited in the regulations, 

thereby specifying when such irrigation 

practices could be reasonably 

considered to be a normal husbandry 

practice. 

OSMRE reminded Montana that 

anything more than minor wetland 

related work (wetland restoration (657), 

wetland creation (658), and wetland 

enhancement (659)), or any activity that 

requires more than minor stabilization, 

interseeding, or replanting would need 

to be completed at least six (6) years 

prior to Phase III bond release. 

Regarding the Stream Crossings (578), 

OSMRE felt that this NRCS standard 

was overly broad and far-reaching. We 

requested that Montana explain why 

stream crossings would be applicable to 

all crossing types cited in the 

incorporated NRCS reference, at any 

time during the liability period without 

extending the period of responsibility; 

or define reasonable limits. Of particular 

concern are large projects, such as a 

bridge associated with a road crossing 

that might be installed near the end of 

the liability period. OSMRE believes 

that, in general, stream crossings should 

be restricted and clearly stated under 

what conditions and what types of 

stream crossings should be included, or 

at least which would be prohibited. 

OSMRE requested that Montana include 

some reasonable time limit before a 

Phase III bond release beyond which 

any stream crossings would be 

prohibited, so as to demonstrate the 

stability of such crossings and that no 

negative consequences are reasonably 

likely after Phase III bond release. 

In Montana’s May 12, 2009, response 

letter (Administrative Record No. OSM– 

2008–0022–0012), the State elected to 

eliminate the following NRCS Standards 

for Landscaping Activities: Hedgerow 

Planting (422), Irrigation System, Microirrigation (441), Irrigation System, 

Sprinkler (442), Irrigation System, 


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81118 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 

Surface and Subsurface (443), Irrigation 

Water Management (449), Stream 

Crossing (578), Tree, Wetland 

Restoration (657), Wetland Creation 

(658), and Wetland Enhancement (659). 

Montana expressed that proposals for 

the use of irrigation systems will be 

addressed during the permitting or 

permit revision process and will be 

required to address OSMRE’s 

limitations on the use of irrigation for 

landscaping activities. Montana 

proposed to delete the Stream Crossing 

standard (578) as it is essentially 

irrelevant to reclamation activities at 

Montana coal mines. Additionally, 

Montana responded to OSMRE’s 

concern regarding Wetland Restoration 

(657), Wetland Creation (658), and 

Wetland Enhancement (659) by deleting 

these standards from the list of 

standards used to support Landscaping 

Activities, as they will be addressed 

through normal reclamation practices 

and time frames. 

As a result of Montana’s May 12, 

2009, response to our concern letter 

dated April 16, 2009, OSMRE approves 

only the following NRCS Standards for 

Landscaping Activities: Fuel Break 

(383), Firebreak (394), Tree, Shrub 

Establishment (612), Windbreak/ 

Shelterbelt Renovation (650), and Forest 

Stand Improvement (666). 

For the proposed normal husbandry 

practice of Landscaping Activities, 

Montana referenced the NRCS 

supplements which support the use of 

these practices as normal husbandry for 

the region and set appropriate limits on 

time frames for implementation for all 

proposed practices. Exceeding these 

limits would result in extending the 

period of responsibility. 

Montana thus has demonstrated that 

the proposed normal husbandry 

practices listed for Landscaping 

Activities are normal husbandry 

practices within the region for unmined 

lands having land uses similar to the 

approved post mining land use of the 

disturbed area. The changes that 

Montana made to the normal husbandry 

practice for Landscaping Activities meet 

the requirements for approval under 30 

CFR 816/817.116(c)(4). We approve the 

proposed changes. 

IV. Summary and Disposition of 

Comments 

Public Comments 

We asked for public comments on the 

amendment (Administrative Record No. 

OSM–2008–0022–0001), 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 (Administrative Record No. 

OSM–2008–0022–0014). We did not 

receive any comments from other 

Federal agencies. 

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. We 

did, however, solicit comments from 

EPA in a letter dated October 3, 2008 

(Administrative Record No. OSM–2008– 

0022–0014). We received an e-mail on 

October 20, 2008 (Administrative 

Record No. OSM–2008–0022–0016), 

notifying OSMRE that the EPA did not 

plan to review the proposed changes 

because they did not pertain to air or 

water quality standards. 

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. Since this amendment has 

no effect on historic properties, OSMRE 

was not required to request comments 

from the SHPO and the ACHP. We did 

not request comments from the ACHP. 

The Montana SHPO was notified of the 

amendment proposal by a letter dated 

October 3, 2008, soliciting comments 

(Administrative Record No. OSM–2008– 

0022–0014), but did not submit any 

comments regarding this amendment 

proposal. 

V. OSMRE’s Decision 

Based on the above findings, we 

approve Montana’s July 3, 2008, 

proposed amendment for Normal 

Husbandry Practice Guidelines, as 

revised on May 12, 2009. We find that 

the proposed normal husbandry 

practices will not extend the period of 

responsibility for revegetation success 

and bond liability, and the proposed 

practices can be expected to continue as 

part of the postmining land use. If the 

practices are discontinued after the 

liability period expires, the probability 

of permanent vegetation success will 

not be reduced. The proposed practices 

listed for each category are normal 

husbandry practices within the region 

for unmined land having land uses 

similar to the approved postmining land 

use of the disturbed area. 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR Part 926, which codify decisions 

concerning the Montana program. We 

find that good cause exists under 5 

U.S.C. 553(d)(3) to make this final rule 

effective immediately. Section 503(a) of 

SMCRA requires that the State’s 

program demonstrates that the State has 

the capability of carrying out the 

provisions of the Act and meeting its 

purposes. Making this regulation 

effective immediately will expedite that 

process. SMCRA requires consistency of 

State and Federal standards. 

Effect of OSMRE’s Decision 

Section 503 of SMCRA provides that 

a State may not exercise jurisdiction 

under SMCRA unless the State program 

is approved by the Secretary. Similarly, 

30 CFR 732.17(a) requires that any 

change of an approved State program be 

submitted to OSMRE for review as a 

program amendment. The Federal 

regulations at 30 CFR 732.17(g) prohibit 

any changes to approved State programs 

that are not approved by OSMRE. In the 

oversight of the Montana program, we 

will recognize only the statutes, 

regulations, and other materials we have 

approved, together with any consistent 

implementing policies, directives, and 

other materials. We will require 

Montana to enforce only those approved 

provisions. 

VI. Procedural Determinations 

Executive Order 12630—Takings 

This rule does not have takings 

implications. This determination is 

based on the analysis performed for the 

counterpart Federal regulation. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule is exempted from review by 

the Office of Management and Budget 

(OMB) under Executive Order 12866 

(Regulatory Planning and Review). 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

section 3 of Executive Order 12988 and 

has determined that this rule meets the 

applicable standards of subsections (a) 

and (b) of that section. However, these 

standards are not applicable to the 

actual language of State regulatory 

programs and program amendments 

because each program is drafted and 


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Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 81119 

promulgated by a specific State, not by 

OSMRE. Under sections 503 and 505 of 

SMCRA (30 U.S.C. 1253 and 1255) and 

the Federal regulations at 30 CFR 

730.11, 732.15, and 732.17(h)(10), 

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR Parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of SMCRA 

requires that State laws regulating 

surface coal mining and reclamation 

operations be ‘‘in accordance with’’ the 

requirements of SMCRA, and section 

503(a)(7) requires that State programs 

contain rules and regulations 

‘‘consistent with’’ regulations issued by 

the Secretary pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federally 

recognized Indian Tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian Tribes. 

The rule does not involve or affect 

Indian Tribes in any way. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

This rule does not require an 

environmental impact statement 

because section 702(d) of SMCRA (30 

CFR U.S.C. 1292(d)) provides that 

agency decisions on proposed State 

regulatory program provisions do not 

constitute major Federal actions within 

the meaning of section 102(2)(C) of the 

National Environmental Policy Act (42 

U.S.C. 4332(2)(C) et seq.). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). The State submittal, 

which is the subject of this rule, is based 

upon counterpart Federal regulations for 

which an economic analysis was 

prepared and certification made that 

such regulations would not have a 

significant economic effect upon a 

substantial number of small entities. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

upon the data and assumptions for the 

counterpart Federal regulations. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

U.S.C. 804(2), of the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: 

a. Does not have an annual effect on 

the economy of $100 million. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. 

c. Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S. based enterprises to 

compete with foreign-based enterprises. 

This determination is based upon the 

fact that the State submittal which is the 

subject of this rule is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation was not considered a major 

rule. 

Unfunded Mandates 

This rule will not impose an 

unfunded Mandate on State, local, or 

Tribal governments or the private sector 

of $100 million or more in any given 

year. This determination is based upon 

the fact that the State submittal, which 

is the subject of this rule, is based upon 

counterpart Federal regulations for 

which an analysis was prepared and a 

determination made that the Federal 

regulation did not impose an unfunded 

mandate. 

List of Subjects in 30 CFR Part 926 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: July 8, 2010. 

Allen D. Klein, 

Regional Director, Western Region. 

■ For the reasons set out in the 

preamble, 30 CFR part 926 is amended 

as set forth below: 

PART 926—MONTANA 

■ 1. The authority citation for part 926 

continues to read as follows: 

Authority: 30 U.S.C. 1201 et seq. 

■ 2. Section 926.15 is amended in the 

table by adding a new entry in 

chronological order by ‘‘Date of Final 

Publication’’ to read as follows: 

§ 926.15 Approval of Montana regulatory 

program amendments 

* * * * * 

Original amendment 

submission date Date of final publication Citation/description 

*******

July 3, 2008 ................................................................. December 27, 2010 ..................................................... Normal husbandry practices. 


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81120 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 

[FR Doc. 2010–32418 Filed 12–23–10; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 934 

[SATS No. ND–051–FOR; Docket ID No. 

OSM–2009–0013] 

North Dakota Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment. 

SUMMARY: We are approving an 

amendment to the North Dakota 

regulatory program (the ‘‘North Dakota 

program’’) under the Surface Mining 

Control and Reclamation Act of 1977 

(‘‘SMCRA’’ or ‘‘the Act’’). North Dakota 

proposes revisions to rules and statutes 

that will allow the revegetation 

responsibility period to be reduced from 

ten years to five years for lands eligible 

for remining. North Dakota intends to 

revise its program to be consistent with 

the corresponding Federal regulations 

and to improve operational efficiency. 

DATES: Effective Date: December 27, 

2010 

FOR FURTHER INFORMATION CONTACT: 

Jeffery Fleischman, Field Office 

Director, Casper Field Office, Office of 

Surface Mining Reclamation and 

Enforcement, 150 East B Street, Room 

1018, Casper, Wyoming 82604–1018, 

307–261–6552, jfleischman@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the North Dakota Program 

II. Submission of the Proposed Amendment 

III. Office of Surface Mining Reclamation and 

Enforcement’s (OSM’s) Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations 

I. Background on the North Dakota 

Program 

Section 503(a) of the Act permits a 

State to assume primacy for the 

regulation of surface coal mining and 

reclamation operations on non-Federal 

and non-Indian lands within its borders 

by demonstrating that its State program 

includes, among other things, ‘‘a State 

law which provides for the regulation of 

surface coal mining and reclamation 

operations in accordance with the 

requirements of this Act * * *; and 

rules and regulations consistent with 

regulations issued by the Secretary 

pursuant to this Act.’’ See 30 U.S.C. 

1253(a)(1) and (7). On the basis of these 

criteria, the Secretary of the Interior 

conditionally approved the North 

Dakota program on December 15, 1980. 

You can find background information 

on the North Dakota program, including 

the Secretary’s findings, the disposition 

of comments, and conditions of 

approval in the December 15, 1980, 

Federal Register (45 FR 82214). You can 

also find later actions concerning North 

Dakota’s program and program 

amendments at 30 CFR 934.15, 934.16, 

and 934.30. 

II. Submission of the Proposed 

Amendment 

By letter dated November 12, 2009, 

North Dakota sent us an amendment to 

its program (Amendment number 

XXXVIII, Administrative Record Docket 

ID: OSM–2009–0013) under SMCRA 

(30 U.S.C. 1201 et seq.). North Dakota 

submitted the amendment on its own 

accord. The amendment reduces the 

reclamation liability period on 

previously mined areas from ten full 

years to five full years. The Federal 

regulations at 30 CFR 816.116 provide 

incentives for eligible remining 

operations including reduced 

revegetation responsibility periods (2 

years in the East and 5 years in the 

West). 

Specifically, North Dakota proposes 

revisions to the North Dakota Century 

Code at Chapter 38–14.1–24(18) 

(Environmental protection performance 

standards) and to the North Dakota 

Administrative Code at Article 69–05.2– 

09–02(14) (Permit applications— 

operation plans—maps and plans) and 

Article 69–05.2–22–07(2) and (4)(i) 

(Performance standards— 

Revegetation—Standards for success). 

North Dakota proposes to reduce the 

reclamation liability period on 

previously mined areas from ten years 

to five years. This change will apply to 

the North Dakota Century Code as well 

as the North Dakota Administrative 

Code. North Dakota defines previously 

mined areas as ‘‘lands that were affected 

by coal mining activities prior to 

January 1, 1970.’’ North Dakota also 

proposes to require permit applications 

that include previously mined areas to 

include additional maps and 

information addressing potential 

environmental and safety problems that 

might occur at the mining site. 

We announced receipt of the 

proposed amendment in the February 9, 

2010, Federal Register (Vol. 75, No. 26, 

FR page number 6330). 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 Docket ID: 

OSM–2009–0013). 

We did not receive any comments. We 

did not hold a public hearing or meeting 

because no one requested one. The 

public comment period ended on March 

11, 2010. 

III. OSM’s Findings 

Following are the findings we made 

concerning the amendment under 

SMCRA and the Federal regulations at 

30 CFR 732.15 and 732.17. We are 

approving the amendment as described 

below. 

A. Revisions to North Dakota’s Rules 

and Statutes That Have the Same 

Meaning as the Corresponding 

Provisions of the Federal Regulations 

and/or SMCRA 

North Dakota proposed revisions to 

the following rules containing language 

that is the same as or similar to the 

corresponding section of the Federal 

regulations. North Dakota 

Administrative Code (NDAC) 69–05.2– 

22–07 (30 CFR 816.116), Performance 

standards—Revegetation—Standards for 

success. 

North Dakota proposes for areas 

meeting the definition of previously 

mined area to require a five year 

liability period for revegetation success. 

All other areas in North Dakota have a 

ten year liability period. The Federal 

regulations at 30 CFR 818.116 allow the 

same five year period. 

Because these proposed rules contain 

language that is the same as or similar 

to the corresponding Federal 

regulations, we find that they are no less 

effective than the corresponding Federal 

regulations and we approve it. 

B. Revisions to North Dakota’s Rules 

That Are Not the Same as the 

Corresponding Provisions of the Federal 

Regulations 

North Dakota Century Code Chapter 

(NDCC) 38–14.1–24(18) (SMCRA 

Section 515(20)(B)), Environmental 

Protection Performance Standards. 

North Dakota proposes to add a 

definition for ‘‘previously mined areas.’’ 

The definition would adopt January 1, 

1970, the effective date of North 

Dakota’s first reclamation law, as the 

cut-off eligibility date for lands eligible 

for remining. Previously mined areas are 

those that were mined prior to January 

1, 1970. The Federal definition of 

previously mined areas are those mined 

prior to August 3, 1977, and for which 

investigation reveals, are not reclaimed 

to the standards of SMCRA. Under 

North Dakota’s proposed definition far 

fewer lands would be considered but 


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