1408 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules

bison’’ immediately after the word

‘‘cattle’’ both times it appears.

j. In the definition of Permit for entry,

by adding the words ‘‘or bison’’

immediately after the word ‘‘cattle’’.

§ 78.1 Definitions.

* * * * *

Market cattle identification test cattle

and bison. Cows and bulls 2 years of age

or over that have been moved to

recognized slaughtering establishments,

and test-eligible cattle and bison that are

subjected to an official test for the

purposes of movement at farms,

ranches, auction markets, stockyards,

quarantined feedlots, or other assembly

points. Such cattle and bison shall be

identified by an official eartag and/or

United States Department of Agriculture

backtag prior to or at the first market,

stockyard, quarantined feedlot, or

slaughtering establishment they reach.

* * * * *

§ 78.40 [Amended]

3. In § 78.40, paragraph (c) would be

amended by adding the words ‘‘and

bison’’ immediately after the word

‘‘cattle’’.

§ 78.44 [Amended]

4. Section 78.44 would be amended as

follows:

a. In paragraph (c), in paragraph (9) of

the Agreement, by adding the words

‘‘and bison’’ immediately after the word

‘‘cattle’’.

b. In paragraph (c), in paragraph (10)

of the Agreement, by adding the words

‘‘and bison’’ immediately after the

words ‘‘of cattle’’; by adding the words

‘‘or bison’’ immediately after the words

‘‘test-eligible cattle’’; and by adding the

words ‘‘or bison’’ immediately after the

words ‘‘other cattle’’.

c. In paragraph (c), in paragraph (11)

of the Agreement, by adding the words

‘‘and bison’’ immediately after the

words ‘‘of cattle’’; by adding the words

‘‘or bison’’ immediately after the words

‘‘test-eligible cattle’’; and by adding the

words ‘‘or bison’’ immediately after the

words ‘‘other cattle’’.

d. In paragraph (c), in paragraph (12)

of the Agreement, by adding the words

‘‘and bison’’ immediately after the

words ‘‘of cattle’’; by adding the words

‘‘or bison’’ immediately after the words

‘‘test-eligible cattle’’; and by adding the

words ‘‘or bison’’ immediately after the

words ‘‘other cattle’’.

e. In paragraph (c), in paragraph (13)

of the Agreement, by adding the words

‘‘or bison’’ immediately after the word

‘‘cattle’’ both times it appears.

f. In paragraph (d), in paragraph (9) of

the Agreement, by adding the words

‘‘and bison’’ immediately after the word

‘‘cattle’’.

g. In paragraph (d), in paragraph (10)

of the Agreement, by adding the words

‘‘and bison’’ immediately after the

words ‘‘of cattle’’; by adding the words

‘‘or bison’’ immediately after the words

‘‘test-eligible cattle’’; and by adding the

words ‘‘or bison’’ immediately after the

words ‘‘other cattle’’.

h. In paragraph (d), in paragraph (11)

of the Agreement, by adding the words

‘‘and bison’’ immediately after the

words ‘‘of cattle’’; by adding the words

‘‘or bison’’ immediately after the words

‘‘test-eligible cattle’’; and by adding the

words ‘‘or bison’’ immediately after the

words ‘‘other cattle’’.

i. In paragraph (d), in paragraph (12)

of the Agreement, by adding the words

‘‘and bison’’ immediately after the

words ‘‘of cattle’’; by adding the words

‘‘or bison’’ immediately after the words

‘‘test-eligible cattle’’; and by adding the

words ‘‘or bison’’ immediately after the

words ‘‘other cattle’’.

j. In paragraph (d), in paragraph (13)

of the Agreement, by adding the words

‘‘or bison’’ immediately after the word

‘‘cattle’’ both times it appears.

Done in Washington, DC, this 7th day of

January 1997.

Donald W. Luchsinger,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 97–624 Filed 1–9–97; 8:45 am]

BILLING CODE 3410–34–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 926

Surface Coal Mining and Reclamation

Operations Under the Federal Lands

Program; State-Federal Cooperative

Agreements; Montana

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule.

SUMMARY: The State of Montana

(Governor) and the Secretary of the

Department of the Interior (Secretary)

are proposing to amend the cooperative

agreement between the Department of

the Interior and the State of Montana for

the regulation of surface coal mining

and reclamation operations on Federal

lands within Montana under the

permanent regulatory program. The

proposed rulemaking would streamline

the permitting process in Montana by

delegating to Montana the sole

responsibility to issue permits for coal

mining and reclamation operations on

Federal lands under the revised Federal

lands program regulations, and would

eliminate duplicative permitting

requirements, thereby increasing

governmental efficiency, which is one of

the purposes of the cooperative

agreement. This amendment would also

update the cooperative agreement to

reflect current regulations and agency

structures. Cooperative agreements are

provided for under section 523(c) of the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). This

notice provides information on the

proposed changes to the cooperative

agreement.

DATES: Written comments: Written

comments must be received by 4:00

p.m., M.S.T. on March 11, 1997.

Public hearing: Anyone wishing to

testify at a public hearing must submit

a request on or before 4:00 p.m., M.S.T.

on January 31, 1997. Because OSM will

hold a public hearing only if one is

requested, hearing arrangements, dates

and times, if any, will be announced in

a subsequent Federal Register notice. If

no one requests an opportunity to testify

at the public hearing, the hearing will

not be held. Any disabled individual

who has need for special

accommodation to attend a public

hearing should contact the individual

listed under FOR FURTHER INFORMATION

CONTACT.

Public Meeting: If only one person

requests an opportunity to testify at a

hearing, a public meeting, rather than a

public hearing, may be held. Persons

wishing to meet with OSM

representatives to discuss the proposed

amendment may request a meeting by

contacting the person listed under FOR

FURTHER INFORMATION CONTACT. All such

meetings will be open to the public and,

if possible, notices of meetings will be

posted at the locations listed under

ADDRESSES. A written summary of each

meeting will be made a part of the

administrative record.

ADDRESSES: Written comments should

be mailed or hand delivered to the

Office of Surface Mining Reclamation

and Enforcement, Western Regional

Coordinating Center, Suite 3320, 1999

Broadway, Denver, CO 80202–5733.

Copies of the Montana program,

proposed amendments to the

cooperative agreement and the related

information required under 30 CFR Part

745 will be available for public review

at the addresses listed below during

normal business hours, Monday through

Friday, excluding holidays. Each

requester may receive one free copy of

the proposed revisions by contacting

any one of the following persons.
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules 1409

Ranvir Singh, Western Regional

Coordinating Center, Office of Surface

Mining Reclamation and

Enforcement, 1999 Broadway, Suite

3320, Denver, CO 80202–5733,

Telephone: (303) 844–1489.

Guy Padgett, Director, Casper Field

Office, Office of Mining Reclamation

and Enforcement, 100 East ‘‘B’’ Street,

Room 2128, Casper, WY 82601–1918,

Telephone: (307) 261–6550.

Jan Sensibaugh, Montana Department of

Environmental Quality, 1520 East

Sixth Avenue, Helena, MT 59620–

0901, Telephone: (406) 444–5270.

FOR FURTHER INFORMATION CONTACT:

Ranvir Singh, Western Regional

Coordinating Center, Office of Surface

Mining Reclamation and Enforcement,

1999 Broadway, Suite 3320, Denver, CO,

80202–5733, Telephone: (303) 844–

1489.

SUPPLEMENTARY INFORMATION:

I. Background on the Montana

Cooperative Agreement

On June 4, 1980, the Governor

submitted a request for a cooperative

agreement between the Department of

the Interior and the State of Montana to

give the State primacy in the

administration of its approved

regulatory program on Federal lands

within Montana. The Secretary

approved the cooperative agreement on

January 19, 1981 (46 FR 20983, April 8,

1981). The text of the existing

cooperative agreement can be found at

30 CFR § 926.30.

On July 5, 1994, the Governor,

pursuant to 30 CFR § 745.14 and at the

recommendation of OSM, submitted a

proposed modified cooperative

agreement to address among other

things, elimination of duplicative State/

Federal permitting efforts and

streamlining of the permitting

processes. The proposed modifications

would amend the existing cooperative

agreement and delegate to Montana the

sole responsibility to issue coal mining

and reclamation permits on Federal

lands consistent with the revised

Federal lands regulations at 30 CFR Part

740 (48 FR 6912, February 16, 1983).

This rulemaking would also amend the

existing cooperative agreement to reflect

current agency organizations.

In accordance with the provisions of

30 CFR 732.17(h), OSM is seeking

comments on whether the proposed

amendment satisfies the applicable

program approval criteria of 30 CFR

732.15. If the amendment is deemed

adequate, it will become part of the

Montana program.

II. Proposed Revisions to the

Cooperative Agreement

A summary of the proposed changes

to the existing cooperative agreement

appears below. These proposed

revisions are subject to further changes

because of public comments and further

discussions with Montana. The full text

of the proposed revised cooperative

agreement is being published for

continuity, and the convenience of the

reader.

The introductory language preceding

existing Article I would be revised to

read ‘‘(t)he Governor of the State of

Montana (Governor) and the Secretary

of the Department of the Interior

(Secretary) enter into a State-Federal

Cooperative Agreement (Agreement) to

read as follows:’’ This change would be

made to assure language consistency

with other State-Federal cooperative

agreements, and to specify position

designations of representatives of the

two entities of the State and Federal

governments that would sign the

cooperative agreement. The second

paragraph of the existing introductory

language would be deleted because it

would essentially duplicate the

proposed language.

Existing Article I: Introduction and

Purpose

Proposed Revised Article I: Authority,

Purposes, and Responsible Agencies

The heading of existing Article I

would be revised to read Article I:

Authority, Purposes, and Responsible

Agencies. This revision is proposed so

that the revised heading correctly

represent the three paragraphs that

comprise this article as described below.

Authority

Existing paragraph A would be given

the heading A. Authority to make it

consistent with other cooperative

agreements. The language in existing

paragraph A would be revised to

delegate to Montana the responsibility

to review and approve coal exploration

operations that are not subject to 43 CFR

Group 3400. This change is in

conformance with the Federal lands

regulations at 30 CFR 740.4(c)(6).

Purposes

Existing paragraph B would be given

the heading B. Purposes, and minor

word changes would be made for

clarity.

Responsible Agencies

A new paragraph C. Responsible

Agencies would be added to replace and

consolidate in one place the provisions

of paragraphs A and B of existing

Article IV and would specify, as in the

existing cooperative agreement, that the

Office of Surface Mining Reclamation

and Enforcement (OSM) would

administer the cooperative agreement

on behalf of the Secretary. However,

since there has been a change in the

name of the State agency with authority

to regulate coal mining in Montana

subsequent to the date of existing

cooperative agreement, the Montana

Department of Environmental Quality

(DEQ), instead of the Montana

Department of State Lands (State

Lands), would administer the

cooperative agreement on behalf of the

Governor.

Existing Article II: Effective Date

Proposed Revised Article II: Effective

Date

Existing Article II would be revised by

replacing the roman numeral ‘‘X’’ at the

end of the last sentence with roman

numeral ‘‘XI’’ to correspond to the

proposed renumbering of existing

Article X. No change in effect is

intended.

Existing Article XVI: Definitions

Proposed Revised Article III: Definitions

Existing Article XVI: Definitions

would be renumbered to read Article III:

Definitions. This change is proposed to

assure that this article appears in the

same sequence as in other State-Federal

cooperative agreements. The existing

language would be retained to provide

that the terms and phrases used in the

cooperative agreement would have the

same meanings as they have in SMCRA,

30 CFR Parts 700, 701, 740, and the

State Program. Additional language

would be included to define the term

‘‘Permit Application Package (PAP)’’ to

describe the material submitted by an

applicant for a surface coal mining and

reclamation operation permit on Federal

lands (See 48 FR 6912, February 16,

1983). OSM adopted the term because

there are requirements for mining on

Federal lands that are in addition to

those required by permit application

under the State program for non-Federal

lands. For example, operations on

Federal lands may be subject to

requirements of the Federal land

management agency or of the Secretary

under Federal laws other than SMCRA.

The PAP would include such additional

information as would be required by the

State program. See definition of ‘‘permit

application package’’ under 30 CFR

740.5.

The definition of PAP in the revised

cooperative agreement includes the term

‘‘permit amendment’’ in addition to all

other terms in the definition of PAP
1410 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules

under CFR 740.5. The term ‘‘permit

amendment’’ under the Montana State

Program means any change in the mine

or reclamation plan that results in

expansion or decrease of the operation’s

permitted boundaries, excluding

incidental boundary changes (ARM

26.4.301(13).

Existing Article III: Scope

Proposed Revised Article IV:

Applicability

The heading of existing Article III

would be revised to read Article IV:

Applicability. This revision is proposed

because the word ‘‘applicability’’ is

more appropriate than the word ‘‘scope’’

to describe what is contained in this

article. The new heading would also be

consistent with that in other StateFederal cooperative agreements.

Existing language would be revised to

delete an obsolete reference to

conditional approval of Montana’s

permanent State program, and to

include additional current regulatory

and statutory references that are

relevant but are not presently included.

These revisions would not change the

intent of existing Article III.

Existing Article IV: Requirements for

Cooperative Agreement

Proposed Revised Article V:

Requirements for the Agreement

Existing Article IV would be

renumbered and retitled to read Article

V: Requirements for the Agreement.

This as well as other proposed changes

to Article IV are discussed below.

The change from the existing roman

numeral IV to roman numeral V is being

made to conform to the revised

numbering of preceding articles. The

word ‘‘agreement’’ would be used in

place of phrase ‘‘cooperative agreement’’

to conform to the introductory

paragraph of the Cooperative Agreement

and is intended to be merely an editorial

change.

As explained above, the provisions of

existing paragraphs A and B have been

consolidated into new paragraph C.

Responsible Agencies of proposed

Article I. The remaining provisions of

existing Article IV would be reorganized

into six paragraphs as explained below.

The introductory language in the

existing Article IV would be included

without any substantive changes in

paragraph A to affirm that the Governor

and the Secretary would comply with

all provisions of the Agreement.

Funds

Existing paragraph C. Funds would

become paragraph B. Funds of proposed

Article V, and would consist of three

proposed subparagraphs.

Proposed subparagraph 1 would

retain all the language of the first two

sentences of existing paragraph C. This

subparagraph would also provide that

the Federal Assistance Manual (FAM)

would be used in determining the

amount of grant funds to be reimbursed

to DEQ. The existing cooperative

agreement does not include this

provision. Therefore, in order to comply

with regulations at 30 CFR Part 735,

reference to the use of FAM would be

included to specify that the amount of

reimbursement of DEQ for

administration and enforcement on

Federal lands is not limitless but is

subject to the provisions of FAM.

Proposed subparagraph 2 contains a

new provision to address the possibility

when necessary funds referred to in

subparagraph 1 may not be appropriated

to OSM to reimburse the State. This new

provision would describe the procedure

to be used in dealing with the

emergencies that may be caused by

unavailability of sufficient Federal

funds, and to insure that mining

operations on Federal lands in Montana

would be regulated in accordance with

the State Program.

Proposed subparagraph 3 would be

added to clarify that the amount of

funds reimbursed to DEQ are not fixed

but are subject to adjustments in

accordance with the program income

provisions of 43 CFR Part 12. This

provision is added to comply with

Financial Management requirements of

30 CFR 735.25.

Reports and Records

Existing paragraph D. Reports and

Records would become paragraph C.

Reports and Records of proposed Article

V, and would be revised to make minor

changes to improve clarity, and to

remove reference to an OSM

organizational structure that is no longer

in use. As stated above OSM would

administer the cooperative agreement

on behalf of the Secretary, the word

‘‘Secretary’’ has been replaced by the

acronym ‘‘OSM’’. A new provision has

been added regarding the final

evaluation report that OSM prepares

and submits to the Congress and other

interested parties about State

administration and enforcement of the

cooperative agreement. According to

this provision OSM would be required

to attach DEQ’s comments on the report

prior to its being submitted to the

Congress and disseminated to other

interested parties. This requirement

would provide the Congress and the

public an opportunity to know not only

how OSM considers the State’s

performance but also the State’s views

on its own performance.

Personnel

Existing paragraph E. Personnel

would become paragraph D. Personnel

of proposed Article V, and the existing

language would be incorporated in the

renumbered paragraph. No change in

the meaning is intended.

Equipment and Facilities

Heading of the existing paragraph F.

Equipment and Laboratories would be

revised to read as E. Equipment and

Facilities, to more appropriately

describe the contents of this paragraph.

The language in the existing paragraph

would be retained without any

substantive changes in its intent.

Permit Application Fees and Civil

Penalties

Existing paragraph G. Permit

Application Fees would be renumbered

and retitled as paragraph F. Permit

Application Fees and Civil Penalties.

The change in title is to assure

conformance with other cooperative

agreements. The existing provision

regarding all permit fees to retained by

the State and deposited in the General

Fund would be deleted because it does

not comply with revised Federal

regulations. In order to comply with the

Federal regulations regarding financial

management, new language would be

added to incorporate current regulatory

references, and Federal and State

program requirements with respect to

civil penalties that are not included in

the existing cooperative agreement.

Existing Article V: Policies and

Procedures: Mine Plan Review

Proposed Revised Article VI: Review

and Approval of the PAP or Application

for Transfer, Assignment or Sale of

Permit Rights

The number and heading of the

existing Article V: Policies and

Procedures: Mine Plan Review would be

revised to read Article VI: Review and

Approval of the PAP or Application for

Transfer, Assignment or Sale of Permit

Rights. Renumbering is necessary to

conform to revised numbering of

preceding articles. The change in

heading is proposed to accurately

represent various topics that are parts of

this article.

Provisions of existing Article V would

be revised to be consistent with other

cooperative agreements, to include

additional requirements of the Federal

lands program regulations at 30 CFR

Parts 740, 745, and 746, to delete

references to obsolete regulations, and

to add references to current regulations.
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules 1411

The proposed Article VI would include

all relevant provisions of existing

Article V, and would consist of three

major headings A, B, and C as described

below.

Receipt and Distribution of the PAP or

Application for Transfer, Assignment or

Sale of Permit Rights

The title of existing paragraph A

would be revised to read A. Receipt and

Distribution of the PAP or Application

for Transfer, Assignment or Sale of

Permit Rights. This change is proposed

to assure consistency with the revised

Federal lands regulations at 30 CFR 740.

Some of the provisions of existing

paragraph A would be revised and

incorporated in proposed subparagraph

A.1. The existing requirement that the

operator submit to the State and the

Regional Director an appropriate

number of identical copies of the

mining and reclamation plan and permit

application or an application for major

modification to an approved mining

plan and permit, would be replaced by

the provision that the applicant submit

to DEQ an appropriate number of copies

of the PAP or application for transfer,

assignment or sale of permit rights. This

change is proposed to eliminate

duplication and make DEQ the sole

recipient of the permit applications.

Other existing requirements with

respect to the form and contents of the

application to ascertain compliance

with various State and Federal laws and

regulations would be retained in

subparagraph A.1 but would be revised

to incorporate minor editorial changes

and current statutory and regulatory

citations.

A new subparagraph A.2 would be

added to provide that after receipt of the

PAP, or application for transfer,

assignment or sale of permit rights, DEQ

would ensure that an appropriate

number of copies of the PAP or

applicant for transfer, assignment or sale

of permit rights, are provided to OSM,

the Federal Land Management Agency,

and any other appropriate Federal

agency. This provision would further

give DEQ the sole responsibility for

distributing copies of permit

applications to appropriate agencies,

and would eliminate duplication of

effort.

Review of the PAP or Application for

Transfer, Assignment or Sale of Permit

Rights

The title of existing paragraph B. Mine

Plan Review Procedures would be

revised to read B. Review of the PAP

Application for Transfer, Assignment or

Sale of Permit Rights. This change is

being proposed to assure clarity, and

consistency with Federal lands

regulations at 30 CFR Part 740.

Most of the relevant provisions of

existing paragraph B comprised of

subparagraph 1 through 9 would be

incorporated into four subparagraphs of

the proposed paragraph B. However, in

order to keep the various provisions in

a logical sequence and under

appropriate headings, the relevant

language would be moved from the

existing subparagraph to another

proposed subparagraph. Also, the

phrase ‘‘mine plan and permit

application’’ extensively used in the

existing cooperative agreement would

be replaced by the phrase ‘‘permit

application package (PAP) or

application for transfer, assignment or

sale of permit rights’’ to conform to the

language in revised Federal regulations.

Furthermore, the phrase ‘‘State Lands’’

would be replaced by Department of

Environmental Quality (DEQ), and the

‘‘Regional Director’’ and ‘‘Secretary’’

would be replaced by ‘‘OSM’’, where

appropriate. These modifications are

proposed because of recent changes in

the organizational structure of the

Montana State government and OSM.

Responsibilities of DEQ, OSM and the

Secretary

As described below, the proposed

paragraph B would consist of four

subparagraphs delineating the

responsibilities of DEQ, OSM and the

Secretary relating to the review of the

PAP or application for transfer,

assignment or sale of permit rights, and

coordination procedures between DEQ

and OSM before and after DEQ’s

approval of a permit.

The provision in existing paragraph

B.1 that State Lands shall assume

responsibility for the analysis and

review of applications required by 30

CFR 741.13 for surface coal mining and

reclamation permits on Federal lands in

Montana, would be revised by deleting

reference to an obsolete regulation at 30

CFR 741.13. The revised language

would be moved, without any changes

in its meaning, to proposed

subparagraph B.1.a(2) in order to keep

this provision in a logical sequence and

under the appropriate subparagraph

heading. The requirement in existing

paragraph B.1 that the Secretary shall,

as requested, assist the State through the

Regional Director in the analysis and

review of applications, would be

changed to provide that OSM would

review the appropriate portions of

applications. The revised language

would be moved and included as

subparagraph a(2) of proposed

paragraph B.2 where other

responsibilities of OSM are described.

The remaining provision in existing

paragraph B.1 stating that the Secretary

shall, in addition, evaluate the State’s

analysis and conclusions as necessary to

independently determine whether the

Secretary concurs in the State’s

decision, would be deleted. Such

Secretarial concurrence would be

duplication of effort and hence, would

not be necessary if, as proposed in this

agreement (see proposed subparagraph

C.1), DEQ assumes the responsibility to

make a decision on approval,

conditional approval, or disapproval of

the permit application component of the

PAP or application for transfer,

assignment or sale of permit rights.

Thus, the proposed paragraph B.1

which describes the responsibilities of

DEQ, would incorporate some of the

provisions of existing paragraph B.1 as

described above, also of existing

paragraphs B.2, B.7 of Article V, and of

paragraph B of existing Article VIII as

discussed below. In addition, the

following new requirements would be

included in the proposed paragraph B.1.

The first new requirement in proposed

subparagraph B.1.a(3) would make DEQ

responsible to obtain the requests from

Federal agencies with jurisdiction or

responsibility over Federal lands for

additional information, comments and

findings. This requirement is necessary

to provide Federal agencies the full

opportunity to communicate to DEQ

their concerns and comments before

DEQ approves a permit. The second

new provision in proposed

subparagraph B.1.a(4) would require

DEQ to obtain OSM’s determination

whether or not the PAP involving leased

Federal coal would require a mining

plan modification under 30 CFR 746.18

and informing the applicant of such

determination. This provision would

ensure that the applicant, in addition to

obtaining a DEQ permit, would also

need to get a mining plan approval from

the Secretary as required by the Mineral

Leasing Act, and regulations at 30 CFR

746.11. Proposed subparagraph a(5)

would require DEQ to consult with and

obtain the consent, as necessary, of

Federal land management agency would

respect to post-mining land use and to

any special requirements to protect noncoal resources. This new responsibility

would be delegated to DEQ as provided

in 30 CFR 740.4(c)(2). Proposed

subparagraph a(6) would be added to

delegate to DEQ the responsibility to

consult with and obtain consent, as

necessary, of the Bureau of Land

Management (BLM) with respect to

requirements relating to the

development, production and recovery

of mineral resources on lands that may
1412 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules

be affected by coal mining operations

involving leased Federal coal, as

authorized by 30 CFR 740.4(c)(3).

Proposed subparagraph a(7) would

provide for delegation to DEQ the

responsibilities of approval and release

of performance bonds with the

concurrence of OSM, and approval and

maintenance of liability insurance as

authorized by 30 CFR 740.49(c)(4).

Another new requirement in proposed

subparagraph a(8) would delegate to

DEQ the responsibility to review and

approve exploration operations that are

not subject to the requirements of 43

CFR Group 3400, as provided in 30 CFR

740.4(c)(6).

Proposed new subparagraph B.1.b(2)

would require DEQ to prepare a State

decision document in cases when a

mining plan action would need to be

taken by the Secretary. This decision

document is one of the documents that

comprises the mining plan decision

document and serves the basis for

OSM’s recommendation to the Secretary

for an action on a mining plan.

The provision in existing paragraph

B.2 that State Lands will be the primary

contact for operators regarding the

processing of mining plans and permit

applications, would be revised to make,

in addition to those already mentioned,

a number of corrections to conform to

the current regulations. The word

‘‘applicant’’ would be used in place of

the word ‘‘operators’’ to more accurately

define the person submitting the PAP.

The revised language would be moved

to proposed subparagraph B.1.a(1) so

that this provision is in a logical

sequence and under the appropriate

subparagraph heading without making

any change in its intent.

The requirement of existing paragraph

B.2 regarding State Lands being

responsible for informing the applicant

of all joint State-Federal determinations

would be moved to the proposed

paragraph C.4 of this article in order to

keep this provision under the

appropriate subject heading. However,

the phrase ‘‘joint State-Federal

determinations’’ would be deleted

because DEQ would assume the primary

responsibility to make determinations

on approval or disapproval of permits.

The provision in existing paragraph

B.2 requiring that State Lands shall send

a copy of all correspondence with the

applicant and any information received

from the applicant which may have a

bearing on decisions regarding the mine

plan and permit application to the

Regional Director, and the provision

that requires OSM to send to the State

a copy of all independent

correspondence with the applicant that

may have a bearing on decisions

regarding the mining plan and permit

application, would be modified and

moved to subparagraph B.4.d where

coordination responsibilities of OSM

and DEQ are described.

The provision in existing paragraph

B.2 stating, ‘‘Except in exigent

circumstances, OSM will not

independently initiate contacts with

applicants regarding completeness or

deficiencies of plans and applications

with respect to matters which are

properly within the jurisdiction of State

Lands’’, would be moved to proposed

subparagraph B.4.a. No change in the

meaning is intended.

The existing paragraph B.2 provides

that the Secretary shall reserve the right

to act independently of the State to

carry out his responsibilities under laws

other than the Federal Act and in

instances of disagreement under the

Federal Act, would be moved to

subparagraph B.3.b where other

responsibilities and rights of the

Secretary are listed.

The proposed paragraph B.2, which

describes the responsibilities of OSM,

would incorporate the appropriate

requirements of existing paragraphs B.1,

B.4, B.5, B.7, and B.8. In addition, this

paragraph would include four new

provisions required by Federal

regulations. The first new provision

would be proposed subparagraph

B.2.a(3), that would require OSM to

consult with the Federal land

management agency to determine

whether the PAP constitutes a mining

plan modification, and to inform DEQ of

such determination within 30 days of

receiving a copy of the PAP. This

provision is required to comply with 30

CFR 746.18(c)(1). The second new

provision, proposed subparagraph

B.2.b(1), would be included to comply

with the requirements of 30 CFR

746.13(e). Proposed subparagraph

B.2.b(1) would require OSM to consult

with and obtain the concurrences of

BLM, and the Federal land management

agency, or any other Federal agency, as

necessary, prior to recommending to the

Secretary to approve or disapprove the

mining plan. The third new proposed

subparagraph B.2.b(2) would address

the situations that may arise when DEQ

would be unable to include in the

permit certain conditions that other

Federal agencies may require to assure

compliance with Federal laws other

than SMCRA. In order to assure

compliance with 30 CFR 740.13(c)(1),

proposed paragraph C in subparagraph

2 would require DEQ to consider the

comments of Federal agencies and, to

the extent allowed by Montana law,

include in the permit, terms and

conditions imposed by the Federal law

management agency or any other

Federal agency with any interest in the

proposed project. Montana is concerned

that 30 CFR 740.13(c)(1) appears to

require the State to include and enforce

conditions required by other Federal

laws. The State has pointed out that it

lacks the authority to enforce other

Federal laws and regulations.

The proposed amendments to the

Cooperative Agreement do not require

nor authorize the State of Montana to

enforce Federal laws other than

SMCRA. However, the State will enforce

its own permits, including those permit

conditions required under 30 CFR

740.13(c)(1). The State must consider

the comments of Federal agencies in the

context of permit issuance and must

document these comments in the record

of permit decisions. After considering

the comments and proposed conditions

of Federal agencies, the State may adopt

the recommended conditions. If the

State does not incorporate a permit

condition proposed pursuant to other

Federal laws and regulations, the State

will document why the condition was

not accepted and transmit the

documentation to OSM. OSM may agree

with the State that the condition is not

necessary. When OSM believes the

proposed conditions are necessary, it

has a variety of options to consider to

improve those conditions:

(1) OSM may work with the Federal

land management agency to find

another means to resolve the issue.

(2) Those conditions associated with

Federal laws other than SMCRA could

be included as part of the mining plan

approval, surface use permit, or other

Federal authorization.

(3) In rare instances where no other

Federal authorizations would be

required, OSM will, after consulting

with other Federal agencies as required

by the Cooperative Agreement, issue a

supplemental SMCRA permit attaching

only those conditions which are

necessary to assure compliance with

other Federal laws. The State shall not

be required to enforce the conditions of

the Federal permit.

The fourth new proposed

subparagraph B.2.b(3) would provide for

OSM to be responsible for providing a

mining plan decision document to the

Secretary recommending approval,

disapproval, or conditional approval of

mining plans or modifications thereof.

This new provision is needed to assure

compliance with 30 CFR 740.4(b) and

746.13.

The gist of the first sentence of

existing paragraph B.3 making the

Regional Director responsible to ensure

that any information OSM receives

concerning the application is sent to
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules 1413

State Lands, would be contained in

proposed subparagraph B.4.d where

other coordination responsibilities of

OSM and DEQ are described. The

requirement of the second sentence of

existing paragraph B.3 would be moved

to proposed subparagraph B.4.b where

other responsibilities of OSM and DEQ

regarding coordination are described.

Proposed paragraph B.3, which

delineates the responsibilities of the

Secretary, in addition to incorporating

in proposed subparagraph B.3.b the

requirements of existing paragraph B.2

as discussed above, would also include

two new subparagraphs. The first

proposed subparagraph B.3.a would be

added to provide for the Secretary to

concurrently carry out the nondelegable responsibilities listed in 30

CFR 745.13. This is necessary to

expedite the mining plan approval

process such that the Secretary

simultaneously carries out his

responsibilities without waiting for the

State to complete its actions. The

second proposed subparagraph B.3.c

would be added to implement 30 CFR

740.4(a) which requires the Secretary to

be responsible for approval,

disapproval, or conditional approval of

a mining plan action pursuant to the

Mineral Leasing Act of 1920.

The provision in existing paragraph

B.4 making the Regional Director

responsible for obtaining, on a timely

basis, the views of all Federal agencies

with jurisdiction or responsibility over

a mine plan or permit application on

Federal lands in Montana and for

making these views known to State

Lands, would be revised. The proposed

amendments to the Agreement would

delegate this responsibility to DEQ as

provided in proposed subparagraphs

B.1.a(3). This delegation is permissible

under 30 CFR 740.4(c). But as provided

in subparagraph B.2.a(5)(b), OSM may

also assist DEQ, if requested, in

obtaining comments and findings of

other Federal agencies. Another

provision in existing paragraph B.4

requiring State Lands to keep the

Regional Director informed of findings

during the review which bear on the

responsibilities of other Federal

agencies, would be included in

proposed subparagraph B.4. after

making appropriate modifications

regarding the name of the State

regulatory agency. Another provision of

existing paragraph B.4 requiring the

Regional Director to take appropriate

steps to facilitate discussions between

State Lands and the concerned agencies

wherever desirable to resolve issues or

problems, would be included in the

proposed subparagraphs B.2a(5)(a) and

B.2.a(5)(c), where other OSM

responsibilities are listed, without

making any change in its meaning.

As discussed above and in the

following paragraph B.5, the proposed

paragraph B.4 would incorporate some

of the provisions of existing paragraphs

B.2, B.3, B.4, and B.5. In addition, five

new subparagraphs would be added to

comply with the Federal regulations

that were promulgated subsequent to

the date the existing Agreement became

effective. The first proposed

subparagraph B.4.c would provide for

OSM and DEQ to coordinate with each

other for scheduling a meeting with the

applicant. This is necessary to enhance

communications between the two

agencies as they interact with the

applicant, as well as to minimize

duplication of communications with the

applicant. The second proposed

subparagraph B.4.e would be added to

comply with the provisions of 30 CFR

745.12(g)(1) that requires DEQ to allow

OSM access to files relating to coal

mining operations on Federal lands.

This is necessary to safeguard the

interests of the Federal government. The

third proposed subparagraph B.4.g

would be added to ensure compliance

with the provisions of 30 CFR 740.4 (c)

and (d) relating to coordination between

BLM and DEQ on matters relating to

regulations at 43 CFR Group 3400. The

fourth proposed subparagraph B.4.h

would allow OSM and DEQ to develop

working agreements specifying any

delegable responsibilities of other

Federal laws and regulations which may

be delegated to DEQ without

amendment to the Agreement. This

provision recognizes that in the interest

of reducing duplication in the review of

permit application packages (PAPs),

DEQ may assume certain

responsibilities that are fully or partially

delegable that would otherwise be

performed by OSM. For example, a

working agreement may specify how

DEQ can assist the Secretary in meeting

his responsibilities under the National

Environmental Policy Act (NEPA). It is

possible for DEQ to perform much of the

basic research and analysis required for

the Secretary to meet his NEPA

responsibilities, although the Secretary

will assume full responsibility for

ensuring compliance with NEPA. Joint

preparation of NEPA documents is an

authorized means of achieving that

compliance and is consistent with 30

CFR 740.4(c)(7). The fifth new provision

in proposed subparagraph B.4.i provides

that when valid existing rights (VER) are

determined to exist on Federal lands

under section 522(e)(3) of SMCRA and

the proposed operation will adversely

affect either a publicly-owned park or a

historic place listed on the National

Register of Historic Places (NRHP), DEQ

would work with the agency that has

jurisdiction over the publicly-owned

park, or with the agency that has

jurisdiction over the historic place, to

develop mutually acceptable terms and

conditions for incorporation into the

permit to mitigate adverse impacts.

In existing paragraph B.5, the

Regional Director is required to begin a

review of a mining plan and permit

application for apparent completeness.

As provided in 30 CFR 740.4(c)(1), this

requirement would be revised to

delegate the responsibility to DEQ and

moved to proposed subparagraphs

B.1.a(2) where other DEQ

responsibilities are described, and to

proposed subparagraph B.2.a(5)(d)

OSM’s responsibilities to assist DEQ are

described. The provision in paragraph

B.5 requiring State Lands to inform the

Regional Director where OSM assistance

will be needed to perform any specific

or general analysis or prepare any

studies or similar work, would be

paraphrased and included in proposed

subparagraph B.2.a(5)(e). The remaining

provisions of existing paragraph B.5,

would be modified to make editorial

changes and would be included in

proposed subparagraph B.4.f.

The requirements of existing

paragraph B.6 providing for joint public

meetings and hearings on permit

decisions, would be deleted because all

permit decisions would be made by

DEQ under the amended cooperative

agreement.

The requirements of existing

paragraph B.7 relating to the preparation

of an environmental impact statement

and/or environmental assessment to

comply with NEPA and the Montana

Environmental Policy Act (MEPA)

would remain the same and would be

included in proposed subparagraph

B.1.b(1) where all other responsibilities

of DEQ are described. In addition, the

gist of the last sentence of existing

paragraph B.7 relating to independent

evaluation and approval of a NEPA

compliance documents would be

included as proposed subparagraph

B.2.a(1).

Existing paragraph B.8 would be

revised significantly relating to the

preparation of a technical analysis,

environmental analysis, and proposed

written decision on the mining plan and

permit application review, independent

evaluation of these documents, written

concurrence by the Regional Director,

and the requirement that ‘‘State Lands

shall consider the comments of the

Regional Director and send a final

technical analysis, environmental

analysis, and proposed decision to the
1414 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules

Regional Director for his written

concurrence. The Regional Director

shall have 30 days to act after receipt of

State Lands’ final technical analysis,

environmental analysis, and proposed

decision. If no further changes are

required, the Regional Director shall

proceed in accordance with 30 CFR

741.21.’’ The regulation at 30 CFR

741.21(a)(2), and now superseded by

current regulation, was promulgated on

March 13, 1979 and required that ‘‘(t)he

Director approve, or deny all

applications for permits under the

Federal lands program. .*.*.’’ (44 FR

15335, March 13, 1979). In accordance

with the Circuit Court of Appeals

decision (National Wildlife Federation

vs. Donald Hodel, 839 F.2d 694 (D.C.

Cir. 1988)) that upheld OSM’s 1983

Federal program regulations (48 FR

6936, February 16, 1983), OSM is not

required to issue permits under the

Federal lands program in States that

have a State-Federal cooperative

agreement. However, due to the above

language in paragraph B.8 of existing

Article V, OSM has continued to issue

Federal permits in Montana under the

Federal lands program. It is the intent of

these proposed amendments that OSM

would not issue Federal permits in

Montana under the Federal lands

program.

Therefore, in accordance with

regulations at 30 CFR 740.4(c)(1), OSM

would delegate to DEQ the

responsibility to make a decision on

approval, disapproval, or conditional

approval of the permit application

component of the PAP as provided in

proposed paragraph C.1 of Article VI.

The existing requirement that ‘‘the

Regional Director shall have 30 days to

act after receipt of State Lands’ final

technical analysis, environmental

analysis, and proposed decision’’, has

been included in proposed

subparagraph B.2.a(4) after making two

modifications. First, the existing

requirement for ‘‘the Regional Director

to act on State Lands’ technical analysis,

environmental analysis and proposed

decision’’ has been replaced by the

catchall phrase ‘‘exercising its

responsibilities’’. Two, the ‘‘30-day’’

time limit has been replaced by the

phrase ‘‘timely manner governed, to the

extent possible, by the deadlines

established in the State Program’’. As

stated above DEQ would have the

responsibility to make a decision on

approval, disapproval, or conditional

approval of the permit application

component of the PAP, and OSM would

not need to act on DEQ’s final technical

analysis, environmental analysis, and

proposed decision. Further, due to

dwindling staff resources adherence to

strict time limits could be very difficult.

The provisions in existing paragraph

B.9 refer to sections of obsolete

regulations at 30 CFR 741.16, 741.17

and 741.21, and hence would be

deleted.

Approval of the PAP or Application for

Transfer, Assignment or Sale of Permit

Rights

Proposed paragraph C would be titled

Approval of the PAP or Application for

Transfer, Assignment or Sale of Permit

Rights. As discussed earlier

subparagraph C.1 would provide that

DEQ shall make a decision on approval,

conditional approval or disapproval of

the permit application component of the

PAP or application for transfer,

assignment or sale of permit rights on

Federal lands as authorized by 30 CFR

740.4(c)(1). Proposed subparagraph C.2

would require DEQ to consider the

comments of the Federal agencies and,

to the extent allowed by the State Act,

incorporate in the permit any terms or

conditions imposed by the Federal land

management agency pursuant to

applicable Federal laws and regulations

as required by 30 CFR 740.13(c)(1).

Proposed subparagraph C.3 would

provide that when a mining plan is

required to be approved by the

Secretary, DEQ may make a decision on

the permit application component of the

PAP on Federal lands prior to the

necessary Secretarial decision on the

mining plan, provided that DEQ advises

the applicant that Secretarial approval

of the mining plan must be obtained

before the applicant may conduct

surface coal mining and reclamation

operations on the Federal lands. This

provision would serve two purposes.

One, it would enable DEQ to issue a

State permit within time limits dictated

by the State program, and two, it would

inform the applicant that a mining plan

approval from the Secretary must be

obtained, when necessary, prior to

commencing certain coal mining

operations. Finally, to bring the

permitting process to conclusion and

close the communication loop,

proposed subparagraph C.4 would

require that after DEQ has made a

decision on the permit application

component of the PAP, DEQ shall send

a copy of the signed permit form and

State decision document to the

applicant, OSM, the Federal land

management agency and, when

necessary, to the agency with

jurisdiction over a publicly-owned park

or historic property listed in the NRHP

that would be adversely affected by the

surface coal mining and reclamation

operations.

Existing Article VI: Inspections

Proposed Revised Article VII:

Inspections

This article would be renumbered as

Article VII: Inspections to correspond to

the revised numbering of preceding

articles. Existing paragraphs A, B, C, D,

and E would be reorganized and revised

to delete references to OSM’s

organizational structure that is no longer

in use, and obsolete regulations. In

order to increase clarity, existing

paragraph F would be moved under

proposed Article VIII: Enforcement to

become paragraph E. No change in the

meaning is intended.

Existing Article VII: Enforcement

Proposed Revised Article VIII:

Enforcement

This article would be renumbered as

Article VIII: Enforcement to correspond

to the revised numbering of preceding

articles. Changes in the language are for

clarification purposes only, and also to

ensure consistency with other

cooperative agreements.

Existing paragraph A would be

revised to include references to 30 CFR

Part 740, to replace ‘‘State Lands’’ with

‘‘DEQ’’, and to add that enforcement

authority given to the Secretary under

other Federal laws and Executive

Orders, including but not limited to

those listed in Appendix A, is reserved

to the Secretary. No change in its

meaning is intended.

Existing paragraph B would

essentially remain the same except for

few word changes for clarification

purposes.

In order to comply with revised

Federal regulations a new paragraph C

would be added to provide that during

any inspection made solely by OSM or

during any joint inspection where DEQ

and OSM fail to agree regarding the

propriety of any particular enforcement

action, OSM may take any enforcement

action necessary to comply with 30 CFR

parts 842, 843, 845 and 846.

Existing paragraph C would be

renumbered D but would retain the

same provisions. As mentioned above a

proposed paragraph E would be added

to incorporate the language of existing

paragraph F of Article VI: Inspections.

Existing paragraph D would be

renumbered F, without making any

change in its meaning.

Existing Article VIII: Bonds

Proposed Revised Article IX: Bonds

This article would be renumbered as

Article IX: Bonds to correspond to the

revised numbering of preceding articles.
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules 1415

Existing paragraph A would be

revised to delete reference to the

Regional Director because of

organizational changes in OSM.

Addition of the new word

‘‘performance’’ in front of the word

‘‘bond’’ is necessary to conform to the

regulatory language. The phrase ‘‘jointly

payable to both the United States and

DEQ’’, and the sentence ‘‘such bond

shall provide that if this Agreement is

terminated under the provisions of 30

CFR 745.15, the portion of the bond

covering the Federal lands shall be

payable only to the United States’’

would be added to ensure conformance

with the provisions of Federal lands

program regulations at 30 CFR

740.15(b).

Existing paragraph B would be

expanded to provide DEQ with the

primary responsibility for approval and

release of performance bonds. The

revised paragraph B would require OSM

concurrence in the release by DEQ of a

performance bond on lands subject to an

approved mining plan. However, prior

to such concurrence, OSM shall

coordinate with other Federal agencies

that have authority over the lands

involved. This requirement would

ensure the protection of interests of all

Federal agencies. DEQ would also be

required to annually advise OSM of

adjustments to the performance bond as

provided in the existing paragraph B.

Proposed paragraph C would be

added to safeguard the interests of the

U.S. government, and provide that

performance bonds will be subject to

forfeiture with the concurrence of OSM,

in conformance with the requirement of

the State program, and OSM may not

withhold its concurrence unless DEQ’s

forfeiture decision is not in accordance

with the requirements and procedures

of the State program.

Proposed paragraph D would be

added to ensure consistency with other

cooperative agreements. This paragraph

would seek to remind the applicant,

OSM, and DEQ that submission of a

performance bond does not satisfy the

requirements of a Federal lease bond

required by 43 CFR 3474, or the

requirements of a Federal lessee

protection bond pursuant to section 715

of SMCRA. Distinct from the

performance bond, the Federal lease

bond, made payable to the United States

through BLM, is required to be posted

by the applicant for a coal lease to

assure compliance with the terms and

conditions of a Federal coal lease,

whereas the Federal lessee protection

bond, made payable to the United States

or the State, whichever is applicable, is

required to be posted by the applicant

for a coal mine and reclamation permit

for use and benefit of a permittee or

lessee of surface lands to secure

payment of any damages to crops or

tangible improvements on Federal

lands.

Existing Article IX: Designation of Lands

as Unsuitable

Proposed Revised Article X: Designating

Land Areas Unsuitable for All or Certain

Types of Surface Coal Mining and

Reclamation Operations and Activities,

and Valid Existing Rights and

Compatibility Determinations

This article would be renumbered and

retitled as Article X: Designating Land

Areas Unsuitable for All or Certain

Types of Surface Coal Mining and

Reclamation Operations and Activities,

and Valid Existing Rights and

Compatibility Determinations. The

change in numbering would ensure

conformance with the revised

numbering of preceding articles. The

change in article heading would reflect

expansion in the subject matter to

incorporate regulatory requirements that

have been promulgated over the years

since the execution of the existing

cooperative agreement. Proposed article

X would consist of two paragraphs.

Unsuitability Petitions

Existing paragraph A would be

redesignated A. Unsuitability Petitions,

and would include two proposed

subparagraphs.

Proposed subparagraph A.1 would

include the opening language from

existing paragraph B stating that the

authority to designate Federal lands as

unsuitable for mining, would be

reserved to the Secretary. The language

in the second sentence of existing

paragraph B would be modified and

included in proposed subparagraph A.1.

The modified language would state that

unsuitability petitions would be filed

with OSM and would be processed in

accordance with 30 CFR 769.

Proposed subparagraph A.2 would

include the existing requirements of

paragraph A regarding cooperation

between OSM and DEQ in processing

petitions to designate lands as

unsuitable for mining. During

processing of such petitions, OSM

would also be required to coordinate

with, and solicit comments from the

appropriate Federal land management

agency.

Valid Existing Rights (VER) and

Compatibility Determinations

Existing paragraph B would be

redesignated B. Valid Existing Rights

(VER) and Compatibility

Determinations.

As stated above the provisions of

existing paragraph B would be

incorporated in subparagraph A.1.

Proposed paragraph B would include

five proposed subparagraphs that would

describe roles and responsibilities of

OSM and DEQ in VER and compatibility

determinations for coal mining

operations pursuant to the requirements

of section 522(e) of SMCRA.

Proposed subparagraph B.1 would

provide that the Secretary will make the

VER determination for Federal lands

within the boundaries of areas specified

under section 522(e)(1) of SMCRA. For

coal mining operations conducted both

on Federal and non-Federal lands, the

Secretary will make the VER

determinations for the Federal lands

and DEQ will make such determinations

for the State and private lands.

Subparagraph B.2 would provide that

the Secretary will make VER

determinations for Federal lands within

the boundaries of any area specified in

section 522(e)(2), and OSM will process

requests for determination of

compatibility for these areas.

Subparagraph B.3 would provide that

DEQ will make the VER determination

for the publicly-owned park or places

included in the National Register of

Historic Places (NRHP) protected under

section 522(e)(3) of SMCRA; DEQ will

consult with the State Historic

Preservation Officer to determine if the

proposed operation will adversely affect

any publicly-owned park or place listed

on the NRHP. This subparagraph would

also provide that surface coal mining

and reclamation operations may be

permitted on Federal lands protected

under section 522(e)(3) of SMCRA if

jointly approved by DEQ, and the

Federal, State, or local agency with

jurisdiction over the publicly-owned

park or the historic place, and DEQ will

coordinate with these agencies for

developing mutually acceptable permit

conditions to mitigate environmental

impacts on such park and place.

Subparagraph B.4 would provide that

DEQ will make the VER determination,

on Federal lands for all areas specified

in section 522(e) (4) and (5) of SMCRA

as unsuitable for mining.

Subparagraph B.5 summarizes that

whenever DEQ will make VER

determinations for Federal lands, DEQ

will consult with OSM and the

appropriate Federal agency.

Existing Articles X through XII would

be renumbered as proposed Articles XI

through XIII. The word ‘‘cooperative’’

before the word ‘‘agreement’’, however,

would be deleted from the heading of

each Article in conformance with the

introductory language preceding Article

I. No substantive changes are proposed.
1416 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules

1The term ‘‘Exploration operations’’ is referred to

as ‘‘Prospecting’’ in the Montana State Program.

Existing Article XIII: Changes in State or

Federal Standards

Proposed Revised Article XIV: Changes

in State or Federal Standards

Article XIII would be renumbered to

read Article XIV: Changes in State or

Federal Standards. It would include two

paragraphs that would include revisions

in existing language to increase clarity

and to add relevant statutory and

regulatory cites.

Existing Article XIV: Changes in

Personnel and Organization

Proposed Revised Article XV: Changes

in Personnel and Organization

Article XIV would be renumbered to

read: Article XV: Changes in Personnel

and Organization. Paragraph A of this

Article would include the language of

existing Article XIV but would be

revised to make minor editorial changes

to increase clarity. The new paragraph

B would be added to obviate the need

for changes to this agreement in the

event of any changes in the State Act

that may transfer administration of this

Agreement to another State agency. In

that event, all references to DEQ in this

agreement would apply to that agency.

Existing Article XV: Reservation of

Rights

Proposed Revised Article XVI:

Reservation of Rights

Article XV would be renumbered to

read: Article XVI: Reservation of Rights.

Existing language would be revised to

make minor editorial changes to delete

references to several statutes without

changing its meaning.

Article XVI: Definitions would be

renumbered as proposed Article III:

Definitions and would be revised to

include additional 30 CFR references.

III. Procedural Determinations

1. Executive Order 12866

This proposed rule is exempt from

review by the Office of Management and

Budget (OMB) Executive Order 12866

(Regulatory Planning and Review).

2. Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) and has

determined that this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of State regulatory

programs and program amendments

since each such program is drafted and

promulgated by a specific State, not by

OSM. Under sections 503 and 505 of

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

3. National Environmental Policy Act

No environmental impact statement is

required for this rule since section

702(d) of SMCRA (30 U.S.C. 1292(d))

provides that agency decisions on

proposed State regulatory program

provisions do not constitute major

Federal actions within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval under the Paperwork

Reduction Act (44 U.S.C. 3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et. seq.). The rule would

amend the cooperative agreement

between the Department of the Interior

and the State of Montana for the

regulation of surface coal mining and

reclamation operations on Federal lands

within Montana under the permanent

regulatory program. The proposed

rulemaking would streamline the

permitting process in Montana by

delegating to Montana the sole

responsibility to issue permits for coal

mining and reclamation operations on

Federal lands under the Federal lands

program regulations, and would

eliminate duplicative permitting

requirements, thereby increasing

governmental efficiency, which is one of

the purposes of the cooperative

agreement. This amendment would also

update the cooperative agreement to

reflect current regulations and agency

structures.

6. Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

7. Author

The principal author of these

proposed regulations is Ranvir Singh,

P.E., Western Regional Coordinating

Center, 1999 Broadway, Suite 3320,

Denver, CO 80202–5733.

List of Subjects in 30 CFR Part 926

Intergovernmental relations, Surface

mining, Underground mining.

Dated: January 3, 1997.

Bob Armstrong,

Assistant Secretary, Land and Minerals

Management.

For the reasons set out in the

preamble, 30 CFR part 926 is proposed

to be amended as follows:

PART 926—[AMENDED]

1. The authority citation for Part 926

is revised to read as follows:

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

Law 95–87.

2. Section 926.30 is revised to read as

follows:

§ 926.30 State-Federal cooperative

agreement.

The Governor of the State of Montana

(Governor) and the Secretary of the

Department of the Interior (Secretary) enter

into a State-Federal Cooperative Agreement

(Agreement) to read as follows:

Article I: Authority, Purposes, and

Responsible Agencies

A. Authority

This Agreement is authorized by section

523(c) of the Surface Mining Control and

Reclamation Act (SMCRA), 30 U.S.C.

§ 1273(c), which allows a State with a

permanent regulatory program approved by

the Secretary, under 30 U.S.C. 1253, to elect

to enter into an agreement for State control

and regulation of surface coal mining and

reclamation operations on Federal lands.

This Agreement provides for State regulation

of coal exploration operations 1 not subject to

43 CFR Group 3400, and surface coal mining

and reclamation operations and activities in

Montana on Federal lands consistent with

SMCRA, the Federal lands program (30 CFR

Chapter VII, Subchapter D), and the Montana

State Program (State Program), including

among other things, the Montana Strip and

Underground Mine Reclamation Act, Part 2,

Chapter 4, Title 82, Montana Code Annotated

(State Act or MCA).

B. Purposes

The purposes of the Agreement are to (1)

foster State-Federal cooperation in the

regulation of surface coal mining and

reclamation operations on Federal lands and

coal exploration operations not subject to 43

CFR Group 3400; (2) minimize

intergovernmental overlap and duplication;

and (3) provide effective and uniform
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules 1417

2See explanation in Article II at 46 FR 20983,

April 8, 1981.

application of the State Program on all nonIndian lands in Montana.

C. Responsible Agencies

The Montana Department of

Environmental Quality (DEQ) has, and shall

continue to have, authority under State law

to administer this Agreement on behalf of the

Governor. The Office of Surface Mining

Reclamation and Enforcement (OSM) shall

administer this Agreement on behalf of the

Secretary.

Article II: Effective Date

Upon signing by the Secretary and the

Governor, this Agreement will take effect [30

days after final publication as rule making in

the Federal Register].2 This Agreement shall

remain in effect until terminated as provided

in Article XI.

Article III: Definitions

The terms and phrases used in this

Agreement, except the term ‘‘permit

application package (PAP),’’ will be given the

meanings set forth in SMCRA, 30 CFR Parts

700, 701, 740, and 761, and the State

Program, including the State Act and the

regulations promulgated pursuant to the

State Act. Where there is a conflict between

the above-referenced State and Federal

definitions, the definitions used in the State

Program will apply, unless otherwise

required by Federal regulation.

The term ‘‘permit application package

(PAP),’’ for the purposes of this cooperative

agreement, means a proposal to conduct

surface coal mining and reclamation

operations on Federal lands, including an

application for a permit, permit revision,

permit amendment, or permit renewal, and

all information required by SMCRA, the

Federal regulations, the State Program, this

agreement, and all other applicable laws and

regulations, including, with respect to leased

Federal coal, the Mineral Leasing Act and its

implementing regulations.

Article IV: Applicability

In accordance with the Federal lands

program, the laws, regulations, terms and

conditions of the State Program are

applicable to Federal lands in Montana

except as otherwise stated in this Agreement,

SMCRA, 30 CFR 740.4, 740.11(a), and 745.13

or other applicable Federal laws, Executive

Orders, or regulations.

Article V: Requirements for the Agreement

A. The Governor and the Secretary affirm

that they will comply with all provisions of

this Agreement.

B. Funds

1. The State shall devote adequate funds to

the administration and enforcement on

Federal lands in Montana of the requirements

contained in the State Program. If the State

complies with the terms of this Agreement,

and if necessary funds have been

appropriated, OSM shall reimburse the State

as provided in section 705(c) of SMCRA and

30 CFR 735.16 for the costs associated with

carrying out responsibilities under this

Agreement. The amount of such funds shall

be determined in accordance with the

provisions of Chapter 3–10 and Appendix

111 of the Federal Assistance Manual.

2. If DEQ applies for a grant but sufficient

funds have not been appropriated to OSM,

OSM and DEQ shall promptly meet to decide

on appropriate measures that will insure that

surface coal mining and reclamation

operations on Federal lands in Montana are

regulated in accordance with the State

Program.

3. Funds provided to DEQ under this

Agreement will be adjusted in accordance

with the program income provisions of 43

CFR Part 12.

C. Reports and Records

DEQ shall submit annual reports to OSM

containing information with respect to its

compliance with the terms of this Agreement

pursuant to 30 CFR 745.12(d). Upon request,

DEQ and OSM shall exchange, except where

prohibited by Federal or State law,

information developed under this

Agreement. OSM shall provide DEQ with a

copy of any final evaluation report prepared

concerning State administration and

enforcement of this Agreement. DEQ

comments on the report will be attached

before being sent to the Congress or other

interested parties.

D. Personnel

DEQ shall maintain the necessary

personnel to fully implement this Agreement

in accordance with the provisions of SMCRA,

the Federal lands program, and the State

Program.

E. Equipment and Facilities

DEQ shall assure itself access to

equipment, laboratories, and facilities with

which all inspections, investigations, studies,

tests, and analyses can be performed and

which are necessary to carry out the

requirements of this Agreement.

F. Permit Application Fees and Civil

Penalties

The amount of the fee accompanying an

application for a permit to conduct surface

coal mining and reclamation operations on

Federal lands in Montana shall be

determined in accordance with section 82–4–

223(1) of MCA, and the applicable provisions

of Federal law. All permit fees and civil

penalty fines shall be accounted for in

accordance with the provisions of 43 CFR

Part 12. Permit fees will be considered

program income. Civil penalties will not be

considered program income. The Financial

Status Report submitted pursuant to 30 CFR

735.26 shall include the amount of permit

application fees collected and attributable to

Federal lands during the State fiscal year.

Article VI: Review and Approval of the PAP

or Application for Transfer, Assignment or

Sale of Permit Rights

A. Receipt and Distribution of the PAP or

Application for Transfer, Assignment or Sale

of Permit Rights

1. DEQ shall require an applicant

proposing to conduct surface coal mining

and reclamation operations on Federal lands

to submit to DEQ the appropriate number of

copies of a PAP or application for transfer,

assignment or sale of permit rights. The PAP

or application for transfer, assignment or sale

of permit rights shall meet the requirements

of 30 CFR Part 740, shall be in the form

required by DEQ, and shall contain, at a

minimum, the information required by 30

CFR 740.13(b), including:

a. Information necessary for DEQ to make

a determination of compliance with the State

Program;

b. Any supplemental information required

by OSM, the Bureau of Land Management

(BLM), and the Federal land management

agency. This information shall be appropriate

and adequate for OSM and the appropriate

Federal agencies to make determinations of

compliance with applicable requirements of

SMCRA, the Mineral Leasing Act (MLA) of

1920, as amended, the Federal lands

program, and other Federal laws, Executive

Orders, and regulations which these agencies

administer.

2. Except as otherwise agreed in writing by

Federal agencies, upon receipt of a PAP or

application for transfer, assignment or sale of

permit rights, DEQ shall ensure that an

appropriate number of copies of the PAP or

application for transfer, assignment or sale of

permit rights are provided to OSM, the

Federal land management agency, and any

other appropriate Federal agency.

B. Review of the PAP or Application for

Transfer, Assignment or Sale of Permit Rights

1. DEQ is responsible for:

a. As authorized by 30 CFR 740.4(c),

(1) Being the primary point of contact with

the applicant regarding the review of the PAP

or application for transfer, assignment or sale

of permit rights and communications

regarding all decisions and determinations

with respect to the PAP or application for

transfer, assignment or sale of permit rights;

(2) Analysis, review, and approval,

conditional approval, or disapproval of the

permit application component of the PAP or

application for transfer, assignment or sale of

permit rights for surface coal mining and

reclamation operations on Federal lands in

Montana;

(3) Obtaining the comments and findings of

Federal agencies with jurisdiction or

responsibility over Federal lands affected by

the operations proposed in the PAP or

application for transfer, assignment or sale of

permit rights, unless otherwise agreed in

writing by Federal agencies. DEQ shall

request such Federal agencies to provide to

DEQ their requests for additional information

or their findings within 45 days of the receipt

of the request;

(4) Obtaining OSM’s determination

whether the PAP involving leased Federal

coal constitutes a mining plan modification

under 30 CFR 746.18, and informing the

applicant of such determination;

(5) Consulting with and obtaining the

consent, as necessary, of the Federal land

management agency pursuant to 30 CFR

740.4(c)(2), with respect to post-mining land

use and to any special requirements

necessary to protect non-coal resources of the

areas that will be affected by surface coal

mining and reclamation operations;

(6) Consulting with and obtaining the

consent, as necessary, of BLM pursuant to 30
1418 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules

CFR 740.4(c)(3), with respect to requirements

relating to the development, production and

recovery of mineral resources on lands

affected by surface coal mining and

reclamation operations involving leased

Federal coal pursuant to 43 CFR Group 3400;

(7) Approval and release of performance

bonds pursuant to Article IX.B, and approval

and maintenance of liability insurance;

(8) Review and approval of exploration

operations not subject to the requirements of

43 CFR Group 3400, as provided in 30 CFR

740.4(c)(6).

b. In addition, where a mining plan action

is required under 30 CFR Part 746, as

determined by OSM:

(1) Preparation of documentation to

comply with the requirements of the National

Environmental Policy Act (NEPA). However,

OSM will retain the responsibility for the

exceptions in 30 CFR 740.4(c)(7)(i) through

(vii). DEQ and OSM shall coordinate and

cooperate with each other so that, if possible,

one Environmental Assessment or

Environmental Impact Statement is produced

to comply with NEPA and the Montana

Environmental Policy Act (MEPA);

(2) Preparation of a State decision package,

which includes written findings indicating

that permit application component of the

PAP is in compliance with the terms of the

State Program, a technical analysis of the

PAP, and supporting documentation.

2. OSM is responsible for:

a. When the PAP includes Federal lands,

(1) Making determinations and evaluations

for NEPA compliance documents as required

by 30 CFR 740.4(c)(7)(i) through (vii);

(2) Reviewing the appropriate portions of

the PAP for compliance with the nondelegable responsibilities of the Secretary

pursuant to SMCRA and 30 CFR 745.13, and

for compliance with the requirements of

other Federal laws, Executive Orders, and

regulations;

(3) Consulting with the Federal land

management agency, and determining

whether the PAP constitutes a mining plan

modification under 30 CFR 746.18, and

informing DEQ, whenever practical within 30

days of receiving a copy of the PAP for

operations on Federal lands, of such

determination;

(4) Exercising its responsibilities in a

timely manner governed, to the extent

possible, by the deadlines established in the

State Program;

(5) Assisting DEQ, upon request, in

carrying out its responsibilities by:

(a) Coordinating resolution of conflicts

between DEQ and other Federal agencies in

a timely manner;

(b) Obtaining comments and findings of

other Federal agencies with jurisdiction or

responsibility over Federal lands;

(c) Scheduling joint meetings between DEQ

and Federal agencies;

(d) Reviewing and analyzing the PAP, to

the extent possible, and providing to DEQ the

work product within 50 days of receipt of the

State’s request for such assistance, unless a

different time is agreed upon by OSM and

DEQ; and

(e) Providing technical assistance, if

available OSM resources allow.

b. In addition, where a mining plan action

is required pursuant to 30 CFR Part 746:

(1) Consulting with and obtaining the

concurrences of BLM, the Federal land

management agency, and any other Federal

agency, as necessary, prior to making

recommendation to the Secretary concerning

approval of the mining plan;

(2) Upon notification from the DEQ that

certain permit conditions required by the

Federal land management agency are not

incorporated in the State permit, OSM will

determine whether such conditions are

necessary. When OSM believes the

conditions are necessary, OSM will work

with the Federal land management agency to

find another means to resolve the issue and,

where appropriate, OSM will facilitate the

attachment of conditions to the appropriate

Federal authorizations; and

(3) Providing a decision document to the

Secretary recommending approval,

disapproval, or conditional approval of

mining plans or modifications thereof.

3. The Secretary:

a. Shall concurrently carry out his

responsibilities that cannot be delegated to

DEQ pursuant to SMCRA and 30 CFR 745.13,

the Federal lands program, the Mineral

Leasing Act (MLA), NEPA, this Agreement,

and other applicable Federal laws including,

but not limited to, those listed in Appendix

A. The Secretary shall carry out these

responsibilities in a timely manner and will

avoid, to the extent possible, duplication of

the responsibilities of the State as set forth

in this Agreement and the State Program;

b. Reserves the right to act independently

of DEQ to carry out his responsibilities under

laws other than SMCRA, and where Federal

law permits, to delegate some of the

responsibilities to OSM; and

c. Shall be responsible for approval,

disapproval, or conditional approval of

mining plans and modifications thereof with

respect to lands containing leased Federal

coal in accordance with 30 CFR 740.4(a)(1).

4. Coordination:

a. As a matter of practice, OSM will not

independently initiate contacts with

applicants regarding completeness or

deficiencies of a PAP or application for

transfer, assignment or sale of permit rights

with respect to matters covered by the State

Program.

b. OSM and DEQ shall coordinate with

each other during the review process of a

PAP or application for transfer, assignment or

sale of permit rights as needed.

c. OSM and DEQ may request and schedule

meetings with the applicant with adequate

advance notice to each other.

d. DEQ shall keep OSM informed of

findings made during the review process

which bear on the responsibilities of OSM or

other Federal agencies. DEQ shall send to

OSM copies of any correspondence with the

applicant and any information received from

the applicant regarding the PAP or

application for transfer, assignment or sale of

permit rights. OSM shall send to DEQ copies

of all OSM correspondence with the

applicant and any other information received

from the applicant which may have a bearing

on the PAP or application for transfer,

assignment or sale of permit rights. Any

conflicts or differences of opinions that may

develop during the review process should be

resolved at the lowest possible staff level.

e. OSM shall have access to DEQ files

concerning operations on Federal lands.

f. Where a mining plan action is required

pursuant to 30 CFR Part 746, OSM and DEQ

shall develop a work plan and schedule for

the PAP review and each will designate a

project leader. The project leaders will serve

as the primary points of contact between

OSM and DEQ throughout the review

process. Not later than 50 days after receipt

of the PAP, unless a different time is agreed

upon, OSM shall furnish DEQ with its review

comments on the PAP and specify any

requirements for additional data. DEQ shall

provide OSM all available information that

may assist OSM in preparing any findings for

the mining plan action.

g. On matters concerned exclusively with

regulations under 43 CFR Group 3400, BLM

will be the primary contact with the

applicant and shall inform DEQ of its actions

and provide DEQ with a copy of

documentation on all decisions.

h. Responsibilities and decisions which

can be delegated to DEQ under applicable

Federal laws other than SMCRA may be

specified in working agreements between

OSM and DEQ, with the concurrence of any

Federal agency involved, and without

amendment to this Agreement.

i. In the case that valid existing rights

(VER) are determined to exist on Federal

lands under section 522(e)(3) of SMCRA

where the proposed operation will adversely

affect either a publicly-owned park, or a

historic place listed in the NRHP, DEQ shall

work, respectively, with the agency with

jurisdiction over the publicly-owned park or

the agency with jurisdiction over the historic

place, to develop mutually acceptable terms

and conditions for incorporation into the

permit to mitigate adverse impacts.

C. Approval of the PAP or Application for

Transfer, Assignment or Sale of Permit Rights

1. DEQ shall make a decision on approval,

conditional approval, or disapproval of

permit application component of the PAP or

application for transfer, assignment or sale of

permit rights on Federal lands.

2. DEQ must consider the comments of

Federal agencies in the context of permit

issuance and will document these comments

in the record of permit decisions. To the

extent allowed by Montana law, permits

issued by DEQ will include terms and

conditions imposed by the Federal land

management agency pursuant to applicable

Federal laws and regulations other than

SMCRA, in accordance with 30 CFR

740.13(c)(1). When Federal agencies

recommend permit conditions and these

conditions are not adopted by DEQ, DEQ will

provide OSM with documentation as to why

they were not incorporated as permit

conditions.

3. When a mining plan action is required

pursuant to 30 CFR part 746, DEQ may make

a decision on approval, conditional approval,

or disapproval of permit application

component of the PAP on Federal lands in

accordance with the State Program prior to

the necessary Secretarial decision on the

mining plan, provided that DEQ advises the

applicant that Secretarial approval of the

mining plan action must be obtained before

the applicant may conduct surface coal
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules 1419

mining and reclamation operations on the

Federal lands. To the extent allowed by the

State law, DEQ shall reserve the right to

amend or rescind any requirements of the

permit to conform with any terms or

conditions imposed by the Secretary in the

approval of the mining plan.

4. After making its decision on the permit

application component of the PAP, DEQ shall

send a copy of the signed permit form and

State decision document to the applicant,

OSM, the Federal land management agency,

and any agency with jurisdiction over a

publicly-owned park, or historic property

included in the National Register of Historic

Places (NRHP) which would be adversely

affected by the surface coal mining and

reclamation operations.

Article VII: Inspections

A. DEQ shall conduct inspections on

Federal lands in accordance with 30 CFR

740.4(c)(5) and prepare and file inspection

reports in accordance with the approved

State Program.

B. DEQ shall, subsequent to conducting

any inspection on Federal lands, file with

OSM’s appropriate Field Office an inspection

report describing: (1) The general conditions

of the lands under the lease, permit, or

license; (2) the manner in which the

operations are being conducted; and (3)

whether the operator is complying with

applicable performance standards and

reclamation requirements.

C. DEQ will be the point of contact and

inspection authority in dealing with the

operator concerning operations and

compliance with requirements covered by

this Agreement, except as described in this

Agreement and in the Secretary’s regulations.

Nothing in this Agreement shall prevent

inspections by authorized Federal or State

agencies for purposes other than those

covered by this Agreement.

D. Authorized representatives of the

Secretary may conduct any inspections

necessary to comply with 30 CFR Parts 842

and 843, and with the Secretary’s obligations

under laws other than SMCRA.

E. OSM shall give DEQ reasonable notice

of its intent to conduct an inspection in order

to provide State inspectors with an

opportunity to join in the inspection. When

OSM is responding to a citizen complaint

supplying adequate proof of an imminent

danger to the public health and safety, or a

significant imminent environmental harm to

land, air, or water resources, pursuant to 30

CFR 842.11(b)(1)(ii)(C), it shall contact DEQ

no less than 24 hours prior to the Federal

inspection, if practicable, to facilitate a joint

Federal/State inspection. All citizen

complaints which do not involve an

imminent danger to the public health and

safety, or a significant imminent

environmental harm to land, air, or water

resources, must be referred initially to DEQ

for action. The Secretary reserves the right to

conduct inspections without prior notice to

DEQ, if necessary, to carry out his

responsibilities under SMCRA.

Article VIII: Enforcement

A. DEQ shall have primary enforcement

authority under SMCRA concerning

compliance with the requirements of this

Agreement and the State Program in

accordance with 30 CFR 740.4(c)(5) and

740.17(a)(2). Enforcement authority given to

the Secretary under SMCRA, and its

implementing regulations, or other Federal

laws and Executive Orders, including, but

not limited to, those listed in Appendix A,

is reserved to the Secretary.

B. During any joint inspection by OSM and

DEQ, DEQ will have primary responsibility

for enforcement procedures, including

issuance of cessation orders and notices of

violation. DEQ shall consult with OSM prior

to issuance of any decision to suspend,

rescind or revoke a permit on Federal lands.

DEQ shall notify BLM of any suspension,

rescission or revocation of a permit

containing leased Federal coal pursuant to 30

CFR 740.13(f)(2).

C. During any inspection made solely by

OSM or any joint inspection where DEQ and

OSM fail to agree regarding the propriety of

any particular enforcement action, OSM may

take any enforcement action necessary to

comply with 30 CFR Parts 842, 843, 845 and

846.

D. DEQ and OSM shall promptly notify

each other of all violations and of all actions

taken with respect to such violations.

E. Personnel of DEQ and OSM shall be

mutually available to serve as witnesses in

enforcement actions taken by either party.

F. This Agreement does not affect or limit

the Secretary’s authority to enforce violations

of Federal laws other than SMCRA.

Article IX: Bonds

A. DEQ and the Secretary shall require all

operators on Federal lands to submit a single

performance bond jointly payable to both the

United States and DEQ. The bond shall be of

sufficient amount to cover the operator’s

responsibilities under SMCRA and the State

Program. The bond shall be conditioned

upon continued compliance with all

requirements of SMCRA, 30 CFR Chapter VII,

the State Program, and the permit. Such bond

shall provide that if this Agreement is

terminated under the provisions of 30 CFR

745.15, the portion of the bond covering the

Federal lands shall be payable only to the

United States.

B. DEQ will have primary responsibility for

the approval and release of performance

bonds required for surface coal mining and

reclamation operations on Federal lands.

However, release of a performance bond on

lands subject to an approved mining plan

requires the concurrence of OSM as provided

in 30 CFR 740.15(d)(3). Prior to such

concurrence, OSM shall coordinate with

other Federal agencies having the authority

over the lands involved. DEQ shall annually

advise OSM of adjustments to the

performance bond.

C. Performance bonds will be subject to

forfeiture with the concurrence of OSM, in

accordance with the procedures and

requirements of the State Program. OSM may

not withhold its concurrence unless DEQ’s

forfeiture decision is not in accordance with

the requirements and procedures of the State

program.

D. Submission of a performance bond does

not satisfy the requirements for either a

Federal lease bond required by 43 CFR Part

3474 or a lessee protection bond which is

required in certain circumstances by section

715 of SMCRA.

Article X: Designating Land Areas Unsuitable

for All or Certain Types of Surface Coal

Mining and Reclamation Operations and

Activities, and Valid Existing Rights and

Compatibility Determinations

A. Unsuitability Petitions

1. Authority to designate or terminate the

designation of areas of Federal lands as

unsuitable for mining is reserved to the

Secretary. Unsuitability petitions shall be

filed with OSM and would be processed in

accordance with 30 CFR 769.

2. When either DEQ or OSM receives a

petition that could impact adjacent Federal

or non-Federal lands pursuant to section

522(c) of SMCRA, the agency receiving the

petition will notify the other of receipt of the

petition and the anticipated schedule for

reaching a decision. OSM shall coordinate

with and solicit comments from the

applicable Federal land management agency.

OSM and DEQ shall fully consider data,

information, and recommendations of all

agencies.

B. Valid Existing Rights (VER) and

Compatibility Determinations

The following actions will be taken when

requests for determinations of VER pursuant

to section 522(e) of SMCRA, or for

determinations of compatibility pursuant to

section 522(e)(2) of SMCRA are received:

1. For Federal lands within the boundaries

of any areas specified under section 522(e)(1)

of SMCRA, Secretary will make the VER

determination. If surface coal mining and

reclamation operations would be conducted

on both Federal and non-Federal lands

within such areas, the Secretary will make

the VER determination for the Federal lands

and DEQ will make the VER determination

for State and private lands.

2. For Federal lands within the boundaries

of any national forest where proposed surface

coal mining and reclamation operations are

prohibited or limited by section 522(e)(2) of

SMCRA and 30 CFR 761.11(b), the Secretary

will make VER determinations. OSM will

process requests for determinations of

compatibility under section 522(e)(2) of

SMCRA and part 30 CFR 761.12(c).

3. Where a VER determination is requested

for Federal lands protected under section

522(e)(3), DEQ will make the VER

determination. DEQ will determine, in

consultation with the State Historic

Preservation Officer, whether any proposed

operation will adversely affect any publiclyowned park or place listed on the NRHP.

Surface coal mining and reclamation

operations of Federal lands protected under

section 522(e)(3) of SMCRA may be

permitted if approved jointly by DEQ, and

the Federal, State, or local agency with

jurisdiction over the park or historic place.

DEQ will coordinate with any agency with

jurisdiction over the publicly-owned park or

historic place to develop mutually acceptable

terms and conditions for incorporation into

the permit in order to mitigate environmental

impacts.

4. DEQ will process determinations of VER

on Federal lands for all areas limited or
1420 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Proposed Rules

prohibited by section 522(e)(4) and (5) of

SMCRA as unsuitable for mining.

5. For operations on Federal lands,

whenever DEQ is responsible for making the

VER determinations, DEQ will consult with

OSM and any affected agency.

Article XI: Termination of the Agreement

This Agreement may be terminated by the

Governor or the Secretary under the

provisions of 30 CFR 745.15.

Article XII: Reinstatement of the Agreement

If this Agreement has been terminated in

whole or part, it may be reinstated under the

provisions of 30 CFR 745.16.

Article XIII: Amendments of the Agreement

This Agreement may be amended by

mutual agreement of the Governor and the

Secretary in accordance with 30 CFR 745.14.

Article XIV: Changes in State or Federal

Standards

A. The Secretary or the State may, from

time to time, revise and promulgate new or

revised performance or reclamation

requirements or enforcement and

administrative procedures. Each party shall,

if it determines it to be necessary to keep this

Agreement in force, change or revise its

respective laws or regulations or request

necessary legislative action. Such changes

will be made under the procedures of 30 CFR

Part 732 for changes to the State Program and

under the procedures of section 501 of

SMCRA for changes to the Federal lands

program.

B. DEQ and OSM shall provide each other

with copies of any changes to their respective

laws, rules, regulations, and standards

pertaining to the enforcement and

administration of this Agreement.

Article XV: Changes in Personnel and

Organization

A. DEQ and OSM shall, consistent with 30

CFR Part 745, advise each other of changes

in the organization, structure, functions,

duties and funds of the offices, departments,

divisions, and persons within their

organizations which could affect

administration and enforcement of this

Agreement. Each shall promptly advise the

other in writing of changes in key personnel,

including the head of a department or

division, or changes in the functions or

duties of the principal offices of the program.

DEQ and OSM shall advise each other in

writing of changes in the location of their

respective offices, addresses, telephone

numbers, as well as changes in the names,

addresses, and telephone numbers of their

respective personnel.

B. Should the State Act be amended to

transfer administration of the State Act to

another agency, all references to DEQ in this

Agreement shall be deemed to apply to the

successor regulatory agency as of the date of

transfer. The provisions in this Agreement

shall thereafter apply to that agency.

Article XVI: Reservation of Rights

In accordance with 30 CFR 745.13, this

Agreement shall not be construed as waiving

or preventing the assertion of any rights that

have not been expressly addressed in this

Agreement that the State or the Secretary

may have under laws other than the Act and

the State Program, including, but not limited

to those listed in Appendix A.

Dated:

Governor of Montana

Dated:

Secretary of the Interior

Appendix A

1. The Federal Land Policy and Management

Act, 43 U.S.C. 1701 et seq., and

implementing regulations.

2. The Mineral Leasing Act of 1920, 30 U.S.C.

181 et seq., and implementing

regulations, including 43 CFR Part 3480.

3. The National Environmental Policy Act of

1969, 42 U.S.C. 4321 et seq., and

implementing regulations, including 40

CFR Part 1500.

4. The Endangered Species Act, 16 U.S.C.

1531 et seq., and implementing

regulations, including 50 CFR Part 402.

5. The National Historic Preservation Act of

1966, 16 U.S.C. 470 et seq., and

implementing regulations, including 36

CFR Part 800.

6. Native American Graves Protection and

Repatriation Act, 25 U.S.C. §§ 3001 et

seq.

7. The American Indian Religious Freedom

Act, 42 U.S.C. 1986 et seq.

8. The Archaeological Resources Protection

Act of 1979, 16 U.S.C. 470aa et seq.

9. The Clean Air Act, 42 U.S.C. 7401 et seq.,

and implementing regulations.

10. The Federal Water Pollution Control Act,

33 U.S.C. 1251 et seq., and implementing

regulations.

11. The Resource Conservation and Recovery

Act of 1976, 42 U.S.C. 6901 et seq., and

implementing regulations.

12. The Reservoir Salvage Act of 1960,

amended by the Preservation of

Historical and Archaeological Data Act

of 1974, 16 U.S.C. 469 et seq.

13. Executive Order 11593 (May 13, 1971),

Cultural Resource Inventories on Federal

Lands.

14. Executive Order 11988 (May 24, 1977),

for flood plain protection.

15. Executive Order 11990 (May 24, 1977),

for wetlands protection.

16. Executive Order 12898 (February 11,

1994) for Federal Actions to Address

Environmental Justice on Minority

Populations and Low Income

Populations.

17. The Mineral Leasing Act for Acquired

Lands, 30 U.S.C. 351 et seq., and

implementing regulations.

18. The Stock Raising Homestead Act of

1916, 43 U.S.C. 291 et seq.

19. The Constitution of the United States.

20. Surface Mining Control and Reclamation

Act of 1977, 30 U.S.C. 1201 et seq.

21. 30 CFR Chapter VII.

22. The Constitution of the State of Montana.

23. Montana Strip and Underground Mine

Reclamation Act (MSUMRA), Part 2,

Chapter 4, Title 82, Montana Code

Annotated.

24. Title 26, Chapter 4, Subchapter 3,

Administrative Rules of Montana.

25. Montana Environmental Policy Act

(MEPA).

[FR Doc. 97–582 Filed 1–9–97; 8:45 am]

BILLING CODE 4310–05–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[FRL–5674–4]

Calls for State Implementation Plan

Revisions for Certain States To

Reduce Regional Transport of Ozone

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of intent.

SUMMARY: In accordance with section

110(k)(5) and 110(a)(2)(D) of the Clean

Air Act (Act), the EPA plans to require

States to submit State implementation

plan (SIP) measures to ensure that

emission reductions are achieved as

needed to prevent significant transport

of ozone (smog) pollution across State

boundaries in the Eastern United States.

These precursors include volatile

organic compounds (VOC) and oxides of

nitrogen (NOx).

Today’s notice announces the

Agency’s intention to publish a Notice

of Proposed Rulemaking in the March

1997 timeframe, with final action

scheduled for summer 1997. Ozone has

long been recognized, in both clinical

and epidemiological research, to affect

public health. There is a wide range of

ozone-induced health effects, including

decreased lung function (primarily in

children active outdoors), increased

respiratory symptoms (particularly in

highly sensitive individuals), hospital

admissions and emergency room visits

for respiratory causes (among children

and adults with pre-existing respiratory

disease such as asthma), inflammation

of the lung, and possible long-term

damage to the lungs. Today’s notice

announces EPA’s intention to conduct

the formal process for implementing the

regional reductions in ozone precursors

that are necessary for areas in the

Eastern United States to reach

attainment. The Ozone Transport

Assessment Group (OTAG) was

established approximately 11⁄2 years ago

to undertake an assessment of the

regional transport problem. The OTAG

is a collaborative process conducted by

the affected States. The OTAG also

includes representatives from EPA and

interested members of the public,

including environmental groups and

industry, to evaluate the ozone transport

problem and the development of

solutions.