[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Rules and Regulations]
[Pages 81112-81120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32418]


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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.

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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: 
<a href="/cdn-cgi/l/email-protection#7218141e171b01111a1f131c321d011f00175c151d04"><span class="__cf_email__" data-cfemail="aec4c8c2cbc7ddcdc6c3cfc0eec1ddc3dccb80c9c1d8">[email protected]</span></a>.

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.

[[Page 81113]]

    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 practice-by-
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

[[Page 81114]]

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 post-
mining 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-by-practice 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

[[Page 81115]]

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 post-
mining 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

[[Page 81116]]

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.

[[Page 81117]]

    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, Micro-irrigation (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, Micro-irrigation (441), Irrigation System, Sprinkler 
(442), Irrigation System,

[[Page 81118]]

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

[[Page 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.

0
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 a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec.  926.15  Approval of Montana regulatory program amendments

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
 Original amendment  submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
July 3, 2008.........................  December 27, 2010......  Normal husbandry practices.
----------------------------------------------------------------------------------------------------------------


[[Page 81120]]

[FR Doc. 2010-32418 Filed 12-23-10; 8:45 am]
BILLING CODE 4310-05-P


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