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[Federal Register Volume 89, Number 223 (Tuesday, November 19, 2024)]
[Rules and Regulations]
[Pages 91257-91261]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-26781]

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SATS No. MT-040-FOR; Docket No. OSM-2023-0001; S1D1S SS08011000 
SX064A000 231S180110; S2D2S SS08011000 SX064A000 23XS501520]

Montana Regulatory Program/Reclamation Plan

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approving, in part.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving, in part, an amendment to the Montana regulatory 
program under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). During the 2019 legislative session, Montana 
updated its Montana Strip and Underground Mine Reclamation Act codified 
in the Montana Code Annotated. Accordingly, Montana submitted this 
amendment to OSMRE on its own initiative. The amendment requires a 
permit applicant's compliance information to be updated and approved if 
a bankruptcy or reorganization results in

[[Page 91258]]

a change of ownership for the applicant. Furthermore, the amendment 
requires permit owners to provide financial assurance for employee 
pensions. Lastly, the amendment makes a typographical correction.

DATES: The effective date is December 19, 2024.

FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Field Office 
Director, Office of Surface Mining Reclamation and Enforcement, 100 
East B Street, Casper, Wyoming 82602, Telephone: (307) 261-6550, Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 
I. Background on the Montana Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews

I. Background on the Montana Program

    Section 503(a) of SMCRA 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 program includes, among other things, State laws and regulations 
that govern surface coal mining and reclamation operations in 
accordance with the Act and consistent with the Federal regulations. 
See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the 
Secretary of the Interior approved the Montana program on October 24, 
1980. You can find background information on the Montana program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval of the Montana program in the October 24, 1980, 
Federal Register (45 FR 70445). You can also find later actions 
concerning the Montana program and program amendments at 30 CFR 926.25.

II. Submission of the Amendment

    By letter dated February 16, 2023 (Administrative Record No. MT-
040-01), Montana sent OSMRE an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). We found Montana's proposed amendment to be 
administratively complete on February 17, 2023. Montana submitted the 
proposed amendment to OSMRE, on its own volition, following changes to 
its statutes in 2019. During the 2019 legislative session, the Montana 
legislature passed Senate Bill 201 (SB 201). SB 201 updated the Montana 
Strip and Underground Mine Reclamation Act codified at Montana Code 
Annotated (Mont. Code Ann. or MCA) sec. 82-4-222. In order to implement 
SB 201, Montana first proposed to add language at Mont. Code Ann. sec. 
82-4-222(1)(g)(i) that would require an applicant for a permit to 
update its ownership information in the Applicant Violator System and 
with the Montana Department of Environmental Quality (DEQ) if 
bankruptcy or reorganization results in changes to ownership parties 
specified in this section. The proposed language also requires that DEQ 
approve these changes.
    Second, Montana proposed to add language at Mont. Code Ann. sec. 
82-4-222(1)(g)(iii) that would require DEQ to develop rules for permit 
owners to provide bonding or other financial assurance necessary to 
meet their financial obligations for employee pensions and reclamation 
obligations. Furthermore, operators would be prohibited from passing 
associated costs from financial assurance for employee pension programs 
onto purchasers who are dependent on the operator to generate 
electricity for customers. Lastly, Montana proposed a typographical 
correction at Mont. Code Ann. sec. 82-4-222(1)(q).
    SB 201 states that the purpose of the statute is to ensure private 
pensions plans remain in good standing and that employees who have 
earned benefits under those plans receive them. It also states that it 
is imperative that private employers not backtrack on pension plans or 
shift the burden to the State of Montana, and that if a private pension 
plan fails to provide earned benefits, the State of Montana may be 
burdened with additional financial responsibilities and demands.
    We announced receipt of the proposed amendment in the May 23, 2023, 
Federal Register (88 FR 33018). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the amendment. No hearing or meeting was 
requested, and we did not receive any comments in relation to the 
proposed rule. The public comment period ended on June 22, 2023.

III. OSMRE's Findings

    The 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, in part, the amendment as described below.

A. Mont. Code Ann. Sec. 82-4-222(1)(g)(i)

    We are not approving Montana's proposed revision of Mont. Code Ann. 
sec. 82-4-222(1)(g)(i). Montana proposed a substantive revision to 
Mont. Code Ann. sec. 82-4-222(1)(g)(i) that does not have a direct 
counterpart in the Federal regulations. As proposed, Mont. Code Ann. 
sec. 82-4-222(1)(g)(i) would require an applicant for a permit to 
update its compliance history and ownership and control information in 
the Applicant Violator System and with the Montana DEQ if bankruptcy or 
reorganization results in changes in a permittee's officers, partners, 
directors, ``or any individual owning of record or beneficially, alone 
or with associates, 10% or more of any class of stock of the 
applicant.''. The proposed language would also require that DEQ approve 
these changes.
    Montana's proposed amendment conflicts with Federal regulations 
because all changes to ownership information resulting from bankruptcy 
would trigger permit approval provisions and give DEQ approval 
authority over changes in a permittee's applicant and operator 
information. Under Federal regulations, while a regulatory authority 
has approval authority over transfer, assignment, or sale of permit 
rights (TAS), it does not have approval authority over changes in 
applicant and operator information. See 30 CFR 774.17. OSMRE clarified 
this distinction in its December 3, 2007, rule, which states that ``a 
change of a permittee's owners or controllers does not constitute a 
transfer, assignment, or sale.'' (72 FR 68000, 68008-09). While there 
could be situations related to bankruptcy that would trigger a TAS, 
such as the conveying of permit rights to a new person or a 
reorganization resulting in a new type of business entity, not all 
changes from bankruptcy, including a change in individual owners or 
operators, would trigger a TAS. Under the proposed regulation, all 
changes resulting from bankruptcy trigger a TAS, even when those 
changes do not effectuate a transfer, assignment, or sale of permit 
rights, and that conflicts with the Federal regulations.
    With this issue in mind, OSMRE is denying the proposed amendment to 
Mont. Code Ann. sec. 82-4-222(1)(g)(i). We note that this permittee 
information is still required to be updated anytime there is a change 
of ownership or control, regardless of the reason for the change. And 
while the regulatory authority must require changes to ownership and 
control information to be updated in the Applicant Violator System, it 
cannot provide for all ownership and control information changes 
resulting from bankruptcy to trigger the need for a permit approval.
    We note that the proposed amendment to Mont. Code Ann. sec. 82-4-
222(1)(g)(i) has only been interpreted in terms of whether the

[[Page 91259]]

section conflicts with SMCRA and its regulations. There has been no 
official determination as to whether Mont. Code Ann. sec. 82-4-
222(1)(g)(i) conflicts with other Federal laws, such as Federal 
bankruptcy law under 11 U.S.C. 101-1532.
    While we understand and commend Montana's effort to limit the 
financial burden on the State should a bankruptcy occur, this section 
of the statute, as currently written, is less effective than the 
Federal regulations and must be denied. We encourage Montana and DEQ to 
resubmit the amendment with changes addressing this issue to OSMRE 
through the informal amendment process. Through the informal amendment 
process, OSMRE and the State can collaborate on proposed changes to 
Montana's coal regulations that may achieve the State's goal of 
lessening the State's financial burden while also meeting SMCRA 
requirements.

B. Mont. Code Ann. Sec. 82-4-222(1)(g)(iii)

    We are not approving Montana's proposed revision of Mont. Code Ann. 
sec. 82-4-222(1)(g)(iii). Montana proposed a substantive revision to 
Mont. Code Ann. sec. 82-4-222(1)(g)(iii) that does not have a direct 
counterpart in the Federal regulations. As proposed, Mont. Code Ann. 
sec. 82-4-222(1)(g)(iii) would require the DEQ to develop rules for 
permit owners to provide bonding or other financial assurance necessary 
to meet its financial obligations for employee pensions and reclamation 
obligations. Operators are prohibited from passing associated costs 
from financial assurance for pension programs onto purchasers who are 
dependent on the operator to generate electricity for customers. 
Following our review, OSMRE has noted the following issues with this 
proposed section:
    First, while normally outside the purview of SMCRA, requiring 
pension bonds could impact Montana's ability to fully collect on a 
performance bond as required by 30 U.S.C. 1259(a). In a situation where 
both a pension and a reclamation bond would be forfeited at the same 
time, there is the potential that fulfilling a pension bond could 
interfere with Montana's ability to fully collect the mining 
operation's performance bond. This is especially true if an operation 
is self-bonded or if both the performance and pension bond come from 
the same surety company. Therefore, Montana's inclusion of pension 
bonds in this framework would make its program less effective in 
accomplishing SMCRA's requirements than the Federal program.
    Second, while we have not made an official determination as to 
whether a prohibition on passing costs associated with bonds, 
reclamation, or otherwise onto purchasers who depend on the mine to 
generate electricity conflicts with SMCRA or our regulations, we 
believe the proposed prohibition on passing costs associated with 
pension bonds onto these purchasers conflicts with SMCRA because 
pension bonds in this framework conflict with 30 U.S.C. 1259(b) (see 
above). Because this proposed prohibition is applicable to pension 
bonds only, it cannot be approved in part.
    With these issues in mind, we are denying the proposed changes to 
Mont. Code Ann. sec. 82-3-222(1)(g)(iii). Please note that the proposed 
amendment to Mont. Code Ann. sec. 82-4-222(1)(g)(iii) has only been 
interpreted in terms of whether the section conflicts with SMCRA and 
its regulations. There has been no official determination as to whether 
Mont. Code Ann. sec. 82-4-222(1)(g)(iii) conflicts with other Federal 
laws, like the Employee Retirement Income Security Act (ERISA) at 29 
U.S.C. 1001-1461.
    While we understand and commend Montana's effort to limit the 
financial risk to pension programs and the financial burden on the 
State should a bankruptcy occur, this section of the statute, as 
currently written, is less effective than the Federal regulations and 
must be denied. The financial assets would be at the discretion of the 
bankruptcy court, and the pension bonds could take precedence over the 
reclamation bonds, leaving inadequate funding for DEQ to collect on the 
reclamation bond and reclaim the permit. We encourage Montana and DEQ 
to resubmit the amendment, with changes addressing the efficacy issue, 
to OSMRE through the informal amendment process. Through the informal 
amendment process, OSMRE and the State can collaborate on proposed 
changes to Montana's coal regulations that may achieve the State's 
goals for employee pension protection against bankruptcy and lessening 
of the State's financial burden while also meeting SMCRA requirements.

C. Mont. Code Ann. Sec. 82-4-222(1)(q)

    We are approving Montana's proposed revision of Mont. Code Ann. 
sec. 82-4-222(1)(q). Montana proposed a minor revision to Mont. Code 
Ann. sec. 82-4-222(1)(q). The specific minor revision to Mont. Code 
Ann. sec. 82-4-222(1)(q) is a correction of a typographical error, 
removing the word ``and'' from the end of the section. Montana does not 
propose any substantive changes to the text of this previously approved 
section. Because the proposed revision is minor and results in no 
substantive changes to the Montana program, we are approving the 
revision and find that it is no less effective than the corresponding 
Federal regulations at 30 CFR part 780.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the proposed rule and received 
none.

Federal Agency Comments

    On February 23, 2023, 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. MT-040-06). We received one comment 
from the Bureau of Land Management saying it has reviewed the document 
and has no comments to offer (Administrative Record No. MT-040-07).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
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 pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. However, on 
February 21, 2023, under 30 CFR 732.17(h)(11)(i), we requested comments 
from the EPA on the amendment (Administrative Record No. MT-040-06). 
The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On February 21, 2023, we requested comments on the Montana 
amendment (Administrative Record No.MT-040-04 and MT-040-05). We did 
not receive comments from the SHPO or ACHP.

V. OSMRE's Decision

    Based on the above findings, we are approving, in part, Montana's 
proposed amendment (MT-040-FOR) that it sent to OSMRE on February 26, 
2023

[[Page 91260]]

(Administrative Record No. MT-040-01). To implement this decision, we 
are amending the Federal regulations at 30 CFR part 926, which codify 
decisions concerning the Montana program. In accordance with the 
Administrative Procedure Act, this rule will take effect 30 days after 
the date of publication. Section 503(a) of SMCRA requires that the 
State's program demonstrate that the State has the capability of 
carrying out the provisions of the Act and meeting its purposes. SMCRA 
requires consistency between State and Federal standards.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in public property 
being taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding Federal 
regulations.

Executive Orders 12866--Regulatory Planning and Review, Executive Order 
13563--Improving Regulation and Regulatory Review, and Executive Order 
14094--Modernizing Regulatory Review

    Executive Order 12866, as amended by Executive Order 14094, 
provides that the Office of Information and Regulatory Affairs in the 
Office of Management and Budget (OMB) will review all significant 
rules. Pursuant to OMB guidance, dated October 12, 1993 (OMB Memo M-94-
3), the approval of State program amendments is exempted from OMB 
review under Executive Order 12866, as amended by Executive Order 
14094. Executive Order 13563, which reaffirms and supplements Executive 
Order 12866, retains this exemption.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by Section 3 of Executive Order 12988. The Department determined that 
this Federal Register document meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because Section 3 focuses on the quality of this Federal 
Register document and to changes to the Federal regulations. The review 
under this Executive Order did not extend to the language of the State 
regulatory program amendment that Montana drafted.

Executive Order 13132--Federalism

    This rule has potential Federalism implications, as defined under 
Section 1(a) of Executive Order 13132. Executive Order 13132 directs 
agencies to ``grant the States the maximum administrative discretion 
possible'' with respect to Federal statutes and regulations 
administered by the States. Montana, through its approved regulatory 
program, implements and administers SMCRA and its implementing 
regulations at the state level. This rule approves in part an amendment 
to the Montana program submitted and drafted by the State and, thus, is 
consistent with the direction to provide maximum administrative 
discretion to States.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on the distribution of power and responsibilities 
between the Federal government and Tribes. The basis for this 
determination is that our decision on the Montana program does not 
include Indian lands as defined by SMCRA or other Tribal lands and it 
does not affect the regulation of activities on Indian lands or other 
Tribal Lands. Indian lands under SMCRA are regulated independently 
under the applicable approved Federal Indian program. The Department's 
consultation policy also acknowledges that our rules may have Tribal 
implications where the State proposing the amendment encompasses 
ancestral lands in areas with mineable coal. We are currently working 
to identify and engage appropriate Tribal stakeholders to devise a 
constructive approach for consulting on these amendments.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking that is (1) considered significant 
under Executive Order 12866, and (2) likely to have a significant 
adverse effect on the supply, distribution, or use of energy. Because 
this rule is exempt from review under Executive Order 12866 and is not 
a significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d), respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5(A), State program 
amendments are not major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C).

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

    This rule will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). The State submittal, which is the subject 
of this rule, is based upon corresponding Federal regulations for which 
an economic analysis was prepared, and certification made that such 
regulations would not have a significant economic effect upon a 
substantial number of small entities. In making the determination as to 
whether this rule would have a significant economic impact, the 
Department relied on the data and assumptions for the corresponding 
Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), 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

[[Page 91261]]

costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions; and (c) does not 
have significant adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises. This 
determination is based on an analysis of the corresponding Federal 
regulations, which were determined not to constitute a major rule.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

List of Subjects in 30 CFR Part 926

    State regulatory program approval, State-Federal cooperative 
agreement, required program amendments.

David A. Berry
Regional Director, Unified Regions, 5, 7-11.

    For the reasons set out in the preamble, 30 CFR part 926 is amended 
as set forth below:

PART 926--MONTANA

0
1. The authority citation for part 926 continues to read as follows:

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

0
2. In Sec.  926.15 amend in the table by adding an entry in 
chronological order by ``Date of final publication'' for ``Mont. Code. 
Ann. 82-4-222(1)(q)'' to read as follows:

Sec.  926.15  Approval of Montana regulatory program amendment.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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                              * * * * * * *
February 26, 2023.............  November 19, 2024  Mont. Code. Ann. 82-4-
                                                    222(1)(q) Permit
                                                    Applications--Applic
                                                    ation Revisions--
                                                    Approved in part.
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[FR Doc. 2024-26781 Filed 11-18-24; 8:45 am]
BILLING CODE 4310-05-P
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